             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Dubose,                                  :
                             Petitioner         :
                                                :
                      v.                        :   No. 703 C.D. 2018
                                                :   Submitted: September 14, 2018
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: October 3, 2018


       Nicole Dubose (Claimant), pro se, petitions for review of an April 23, 2018
Order of the Unemployment Compensation (UC) Board of Review (Board) that
affirmed a Referee’s Decision dismissing Claimant’s appeal as untimely pursuant to
Section 501(e) of the UC Law (Law), 43 P.S. § 821(e).1 On appeal, Claimant argues
that the Board erred when it refused to consider her appeal nunc pro tunc because
the late filing of the appeal was due to non-negligent circumstances or a breakdown
in the administrative process. Specifically, she claims she was originally provided
with the incorrect address to send her appeal. Based on the Board’s credibility
determinations, we are constrained to affirm.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e) (providing for a 15-day appeal period before a notice of determination is deemed final).
      Claimant filed an application for UC benefits, which was denied by the Local
UC Service Center (Service Center) on the basis that Claimant was financially
ineligible. (Notice of Financial Determination, Record (R.) Item 3.) The Notice of
Financial Determination was mailed on September 27, 2017. The letter stated
Claimant had until October 12, 2017, to appeal the determination, which is
consistent with Section 501(e) of the Law. Because the Service Center did not
receive Claimant’s appeal until December 7, 2017, it deemed it untimely.
      Claimant testified at a hearing before the Referee as to the timeliness issue
that she called the Service Center and was told to send proof of her receipt of
workers’ compensation benefits, which may have rendered her financially eligible.
Claimant testified she did so on October 10, 2017, via certified mail to an address
provided by a Service Center representative. Claimant testified she could not find
the certified mail receipt. According to Claimant, she periodically checked the status
of her claim online and, after not receiving benefits, eventually called the Service
Center in December 2017, at which time she learned her documentation was not
received. She then submitted the documentation again via fax on December 7, 2017.
      The Referee found the only documentary evidence of record showed
Claimant’s appeal was filed on December 7, 2017. Because it was untimely, the
Referee dismissed Claimant’s appeal.
      Claimant appealed to the Board, which made the following findings of fact:

      1.     On September 27, 2017, the Department of Labor and Industry
             (Department) issued a Notice of Financial Determination
             (determination) finding the claimant not financially eligible.

      2.     The claimant received the determination.




                                          2
       3.     The [determination] informed the claimant that October 12,
              2017, was the last day on which to file an appeal from this
              determination.

       4.     The claimant filed an appeal on December 7, 2017.

       5.     There is no evidence that the claimant was misinformed or
              misled by the unemployment compensation authorities regarding
              her right or the necessity to appeal.


(Board Decision at 1.)
       In its discussion, the Board noted Claimant’s argument that she was provided
the wrong address by a Service Center representative, but, importantly, did not credit
this testimony. (Id. at 2.) As a result, it deemed December 7, 2017, as the filing
date. (Id.) The Board further stated that “the late appeal was not caused by fraud or
its equivalent by the administrative authorities, a breakdown in the appellate system,
or by non-negligent conduct,” which would have excused noncompliance with the
statutory appeal period. (Id.) Accordingly, it affirmed the Referee’s dismissal of
the appeal as untimely.
       Claimant now petitions this Court for review of the Board’s Order. 2 On
appeal, Claimant argues she is entitled to nunc pro tunc relief because she first sent
her appeal on October 10, 2017, but a Service Center representative gave her an
incorrect address. Therefore, the late filing, she claims, is not the result of her
negligence, but that of the Service Center representative. The Board responds that
Claimant failed to establish a basis for relief nunc pro tunc. In particular, it notes



       2
          “Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).


                                              3
that Claimant’s testimony that she was provided the incorrect address was not
credited. Accordingly, the Board argues, she is not entitled to nunc pro tunc relief.
      Section 501(e) of the Law sets forth the time limit for an appeal from a
determination. It states:

      Unless the claimant or last employer or base-year employer of the
      claimant files an appeal with the board, from the determination
      contained in any notice required to be furnished by the department
      under section five hundred and one (a), (c) and (d), within fifteen
      calendar days after such notice was delivered to him personally, or was
      mailed to his last known post office address, and applies for a hearing,
      such determination of the department, with respect to the particular
      facts set forth in such notice, shall be final and compensation shall be
      paid or denied in accordance therewith.


43 P.S. § 821(e). The failure to file an appeal within the requisite 15-day time period
deprives the Board of jurisdiction over the matter and the determination becomes
final. Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa.
Cmwlth. 2003). Limited circumstances exist in which an untimely appeal may be
considered. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa.
Cmwlth. 2008).      These include cases involving fraud, a breakdown in the
administrative process, or when there is a “non-negligent failure to file a timely
appeal which was corrected within a very short time, during which any prejudice to
the other side of the controversy would necessarily be minimal.”              Bass v.
Commonwealth, 401 A.2d 1133, 1135-36 (Pa. 1979); see also Duhigg v.
Unemployment Comp. Bd. of Review, 181 A.3d 1, 4 (Pa. Cmwlth. 2017). Claimant
argues that being provided the wrong address constituted a breakdown in the
administrative process.




                                          4
       Claimant’s argument on appeal centers on her testimony that a Service Center
representative provided her with the wrong address to send her appeal. As support
that she timely appealed, she points to a letter dated October 10, 2017, which she
included with her December 7, 2017 correspondence. The letter was addressed to
the Service Center but did not include any street address. (R. Item 4, Service Center
Ex. 2b.) She claims the address on the letter is the address the Service Center
representative provided. Because she was given an incomplete address, she asserts
her original appeal, which would have been timely, was not received.
       However, the Board did not credit Claimant’s testimony. (Board Decision at
2.) Nor did Claimant provide a receipt or certificate of mailing to support her
statement that she mailed her appeal to the wrong address.3 It is well established
that the Board is the ultimate fact finder. Walsh v. Unemployment Comp. Bd. of
Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). As such, it “is empowered to
resolve all conflicts in evidence, witness credibility, and weight accorded the
evidence.” Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d
338, 342 (Pa. Cmwlth. 2008). In essence, on appeal Claimant is challenging the
Board’s determination not to credit her testimony that she timely mailed the letter
but to the incorrect address provided by the Service Center representative. As stated
above, this Court is without authority to reweigh the evidence or overturn the
Board’s credibility determinations. Chartiers Cmty. Mental Health & Retardation
Ctr. v. Unemployment Comp. Bd. of Review, 134 A.3d 1165, 1173 (Pa. Cmwlth.
2016). “The burden to establish the right to have an untimely appeal considered is
a heavy one because the statutory time limit established for appeals is mandatory.”
Hessou, 942 A.2d at 198. Because the Board did not credit the testimony of

       3
         We note that the Notice of Financial Determination, which advised Claimant of her right
to appeal, included the full street address for the Service Center.


                                               5
Claimant, there was no credited evidence showing a breakdown in the administrative
process. Thus, Claimant has not satisfied her heavy burden to establish that she is
entitled to nunc pro tunc relief.
      Accordingly, we must affirm the Board’s dismissal of Claimant’s appeal as
untimely under Section 501(e) of the Law.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Dubose,                        :
                      Petitioner      :
                                      :
                 v.                   :   No. 703 C.D. 2018
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


     NOW, October 3, 2018, the Order of the Unemployment Compensation
Board of Review dated April 23, 2018, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
