            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon Kriebel,                             :
                      Petitioner             :
                                             :
       v.                                    : No. 1345 C.D. 2018
                                             : SUBMITTED: March 1, 2019
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                    FILED: April 11, 2019

       Brandon Kriebel (Claimant) petitions for review, pro se, of the August 24, 2018
Order of the Unemployment Compensation Board of Review (Board), affirming the
Referee’s dismissal of Claimant’s appeal as untimely under Section 501(e) of the
Unemployment Compensation Law (Law).1 We affirm the Board’s Order.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
Section 501(e) of the Law states:

       Unless the claimant or last employer or base-year employer of the claimant files an
       appeal with the [B]oard, from the determination contained in any notice required to be
       furnished by the [D]epartment [of Labor and Industry (Department)] under [S]ection
       [501(a), (c) and (d) of the Law], 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 [D]epartment, 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).
                                           Background
       Following his separation from employment with JADCO Manufacturing
Company, Inc. (Employer), Claimant filed an application for unemployment
compensation (UC) benefits, effective February 19, 2018. Bd.’s Findings of Fact (F.F.)
No. 1.2 On May 1, 2018, the local UC Service Center sent Claimant three Notices of
Determination, finding him ineligible for benefits and assessing a fault overpayment
against him in the amount of $1,118 and imposing a penalty in the amount of $167.70.
Id. No. 2; R. Item No. 4.3 The Notices of Determination stated that the final day to
appeal the decisions was May 16, 2018. Bd.’s F.F. No. 3.
       Claimant attempted to file an appeal via the Department’s website, but the appeal
would not go through. Id. No. 4. Claimant then attempted to file his appeal by fax, but
he was unaware that the fax machine at his office was not connected to a telephone line
and could not send faxes. Id. No. 5; R. Item No. 10; Notes of Testimony (N.T.),
7/24/18, at 3. On June 26, 2018, Claimant successfully faxed his appeal to the
Department. Bd.’s F.F. No. 6.
       The Referee held a hearing on July 24, 2018, limited to the issue of the timeliness
of Claimant’s appeal. Claimant appeared at the hearing pro se; Employer did not
appear. Claimant testified that he received the Department’s Notices of Determination
before the appeal deadline of May 16, 2018. N.T., 7/24/18, at 2. Claimant testified
that he attempted to file his appeal twice online but “could not get the online form to
go through.” Id. at 3. On May 14 or May 15, 2018, Claimant tried to fax the appeal to

       2
          On the Employer Questionnaire, Employer’s supervisor stated, “Claimant’s last day of work
was 10/20/17. Claimant was involuntarily discharged. I believe he was working to the best of his
ability but it wasn’t enough to do the job.” Record (R.) Item No. 3.

       3
           The Service Center determined that Claimant’s reported earnings for two claim weeks in
October 2017 were below the actual earnings reported by Employer. R. Item No. 4. The Service
Center found that “[C]laimant worked but knowingly failed to report all earnings and, therefore, failed
to file a valid claim for [unemployment] compensation.” Id.

                                                  2
the Department while he was at work. Id. Claimant testified, “I don’t use the fax
[machine] very often at work, really for nothing. And I sent [the appeal form] through.
I thought it went through. It did not.” Id. According to Claimant, he discovered in
June 2018 that the machine he had used to fax the appeal form was unable to send
faxes, so he “went to another building at work” and faxed the appeal to the Department.
Id. This time, he waited for confirmation that the fax went through. Id.
       Claimant testified that “part of it’s my fault, I guess, for not following up the
first go around.” Id. When the Referee asked Claimant why he did not mail the appeal
form to the Department, Claimant replied that he doesn’t “do much through the mail,”
but “I guess I could have done that.” Id.
       Following the hearing, the Referee dismissed Claimant’s appeal as untimely,
concluding:

       [C]laimant did not file an appeal within the mandatory 15-day appeal
       period. Although [C]laimant may have attempted to file an appeal sooner,
       he did not ensure that his electronic methods of filing an appeal were
       successful prior to expiration of the appeal period. [C]laimant has not
       shown that the late appeal was caused by fraud or a breakdown in the
       administrative process. The provisions of [Section 501(e)] of the [L]aw
       are mandatory[,] and the Referee has no jurisdiction to allow any appeal
       filed after the expiration of the statutory appeal period.

Ref.’s Order, 7/25/18, at 2.
       Claimant timely appealed to the Board, which adopted the Referee’s Findings of
Fact and Conclusions of Law. The Board also concluded that Claimant “failed to
establish extraordinary or non[-]negligent circumstances permitting a late or nunc pro
tunc appeal.” Bd.’s Order, 8/24/18, at 1. Therefore, the Board affirmed the Referee’s
dismissal of Claimant’s appeal as untimely. Claimant now appeals from that decision.4

       4
          Our review is limited to determining whether constitutional rights were violated, whether an
error of law was committed, or whether the findings of fact are supported by substantial evidence.
Section 704 of the Administrative Law, 2 Pa. C.S. § 704.

                                                  3
                                         Issue
      Did Claimant meet his burden of establishing non-negligent circumstances
justifying a nunc pro tunc appeal from his Notices of Determination?
                                       Analysis
      The 15-day time limit for filing an appeal from a Department determination is
mandatory. UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 776 A.2d 344,
347 (Pa. Cmwlth. 2001). “Failure to timely appeal an administrative agency’s action
is a jurisdictional defect, and the time for taking an appeal cannot be extended as a
matter of grace or mere indulgence.” Constantini v. Unemployment Comp. Bd. of
Review, 173 A.3d 838, 844 (Pa. Cmwlth. 2017).
      The Board’s regulations permit several methods for filing an appeal, including
by fax transmission. See 34 Pa. Code § 101.82(b)(3). However, the regulation at 34
Pa. Code § 101.82(b)(3)(ii) expressly states that “a party filing an appeal by fax
transmission is responsible for delay, disruption, interruption of electronic signals and
readability of the document and accepts the risk that the appeal may not be properly
or timely filed.” 34 Pa. Code § 101.82(b)(3)(ii) (emphasis added). The regulation also
provides that “[a] fax transmission is timely filed if it is received by the Department
appeal office . . . before midnight on the last day of the appeal period in accordance
with this subsection.” 34 Pa. Code § 101.82(b)(3)(iii).
      Here, it is undisputed that Claimant filed his appeal with the Department by fax
more than one month after the appeal deadline, on June 26, 2018. Our Court has
explained that “[a]n appeal nunc pro tunc may be permitted when a delay in filing the
appeal is caused by extraordinary circumstances involving fraud, administrative
breakdown, or non-negligent conduct, either by a third party or by the appellant.”
Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review, 955 A.2d 484,
487 (Pa. Cmwlth. 2008). The petitioner’s burden to justify an untimely appeal is


                                           4
“heavy.” Blast Intermediate Unit # 17 v. Unemployment Comp. Bd. of Review, 645
A.2d 447, 449 (Pa. Cmwlth. 1994). A petitioner “may satisfy this heavy burden in one
of two ways. First, he can show the administrative authority engaged in fraudulent
behavior or manifestly wrongful or negligent conduct. Second, he can show non-
negligent conduct beyond his control caused the delay.” Hessou v. Unemployment
Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008).
       Here, Claimant does not allege that fraudulent or negligent behavior by the
Department caused him to file a late appeal. Rather, he argues that non-negligent
circumstances beyond his control – i.e., an inoperable fax machine at his place of
employment – caused the delay. We reject this claim.
       Because Claimant chose to file his appeal by fax, he accepted the risk that the
appeal would not be properly or timely filed. See 34 Pa. Code § 101.82(b)(3)(ii); Suber
v. Unemployment Comp. Bd. of Review, 126 A.3d 410, 413 (Pa. Cmwlth. 2015). At
the hearing, Claimant admitted that: he received the Notices of Determination before
the May 16, 2018 appeal deadline and was aware of the deadline; he did nothing to
verify that the fax he attempted to send to the Department on May 14 or May 15, 2018
actually went through; he could have mailed the appeal form to the Department but
chose not to do so; and when he faxed the appeal form to the Department in June 2018,
he waited to receive confirmation that the fax went through.5 N.T., 7/24/18, at 2-3.
Therefore, the evidence of record establishes that Claimant’s late appeal was caused
by his own negligence. See Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d
561, 563 (Pa. Cmwlth. 2012) (“[The c]laimant’s failure to confirm a successful fax
transmission contributed to the untimely appeal. Such a mistake does not qualify as
‘non-negligent conduct beyond [the appellant’s] control.’”) (brackets in original).

       5
         Claimant testified that after faxing the appeal form in June 2018, he “sat . . . on hold [with
the Department] for [an] hour and a half this time to wait and make sure that [the] fax went through.”
N.T., 7/24/18, at 3.

                                                  5
                                           Conclusion
       We conclude that Claimant failed to meet his heavy burden of establishing non-
negligent circumstances justifying a nunc pro tunc appeal.6 Accordingly, we affirm
the Board’s Order.



                                             __________________________________
                                             ELLEN CEISLER, Judge




       6
          In his appellate brief, Claimant argues that the Department unfairly assessed a fraud
overpayment and penalty against him because it was Employer, not Claimant, that incorrectly
reported Claimant’s earnings to the Department. Claimant’s Br. at 7-8. He also asserts that being
required to pay the overpayment and penalty would cause him financial hardship. Id. at 9-10. While
we empathize with Claimant’s situation, we, like the Referee and the Board, are precluded from
addressing the merits of his appeal due to its untimely filing. See Lopresti, 55 A.3d at 563 (“Because
the appeal was untimely, we will not consider [the c]laimant’s argument regarding the merits of the
original appeal.”).

                                                  6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon Kriebel,                  :
                   Petitioner     :
                                  :
     v.                           : No. 1345 C.D. 2018
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :

                                ORDER


     AND NOW, this 11th day of April, 2019, the Order of the Unemployment
Compensation Board of Review, dated August 24, 2018, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
