                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jonathan Banks,                           :
                     Petitioner           :
                                          :   No. 1365 C.D. 2016
               v.                         :
                                          :   Submitted: March 3, 2017
Unemployment Compensation                 :
Board of Review,                          :
                 Respondent               :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: May 17, 2017


               Jonathan Banks (Petitioner) petitions, pro se, for review from the July
20, 2016 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision to dismiss Petitioner’s appeal as untimely.


                             Facts and Procedural History
               Petitioner worked full-time as a Patient Transport for Crothall
Healthcare (Employer) from September 1, 2002, until his last day of employment on
March 1, 2016.       By letter dated March 4, 2016, Petitioner was discharged for
violating Employer’s policy prohibiting excessive tardiness. (Certified Record (C.R.)
at No. 2-3.)
              Petitioner applied for unemployment compensation benefits with the
local service center, which determined that Petitioner was able and available for
suitable employment pursuant to section 401(d)(1) of the Unemployment
Compensation Law (Law),1 but also determined that Petitioner was ineligible for
benefits under section 402(e) of the Law2 because he violated Employer’s tardiness
policy without establishing good cause for the same. Accordingly, the local service
center determined that Petitioner was ineligible for benefits because the disqualifying
section takes precedence over the eligibility section and, in its notice of
determination, advised Petitioner that the last day to appeal its decision was May 20,
2016. (C.R. at No. 4.)
              On May 27, 2016, Petitioner appealed the local service center’s decision,
asserting that he never received the notice of determination because it got lost in the
mail. A hearing was scheduled before a referee. (C.R. at Nos. 5, 7.)
              At the hearing, Petitioner testified that the mailing address where the
notice was sent was accurate, but stated that he never received the same. Petitioner
explained that the notice may have been delivered to his neighbor’s address because
his neighbor’s mail was once delivered to his address. According to Petitioner, he
contacted the local service center to inquire about the status of his benefits and was
advised that the notice had been sent to his address. Petitioner testified that the local
service center sent him another notice after the call and he filed an appeal

       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§801(d)(1). Section 401(d)(1) of the Law states that a claimant is eligible for benefits only if he
“[i]s able to work and available for suitable work.” Id.

       2
        42 P.S. §802(e). Section 402(e) of the Law provides that a claimant “shall be ineligible for
compensation for any week . . . [i]n which his unemployment is due to discharge or temporary
suspension from work for willful misconduct connected with his work . . . .” Id.



                                                 2
immediately after receipt of the same. Petitioner noted that he lives with his father
and explained that his father would have given him the notice if it had been delivered.
(Notes of Testimony at 3-4.)
              By decision mailed June 21, 2016, the referee dismissed Petitioner’s
appeal as untimely.          The referee stated that Petitioner’s testimony, without
corroborating evidence, was insufficient to establish that his late appeal should be
considered timely.       The referee specifically found that the record contained no
evidence that the notice was returned to the local service center as undeliverable, nor
did the record contain any evidence indicating that the local service center misled or
misinformed Petitioner regarding his appeal rights.                 Accordingly, the referee
determined that a strict application of the mandatory fifteen-day appeal period
indicates that Petitioner’s appeal was untimely.
              Petitioner appealed the referee’s decision to the Board, which adopted
the referee’s findings and conclusions and affirmed the referee’s decision. Petitioner
appealed that determination to this Court.
              On appeal,3 Petitioner largely challenges the merits of the determination
that he is ineligible for compensation benefits. Specifically, Petitioner asserts that he
had good cause for violating Employer’s policy because he was suffering from post-
traumatic stress disorder related to recent tragic events in his life. Regarding the
timeliness of his appeal, Petitioner concedes in his appellate brief that “[his] father is



       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).




                                                3
the person who’s first to get the mail and without [Petitioner’s] knowledge the letter
was placed with previous mail . . . .” (Petitioner’s brief at 9.)4


                                          Discussion
              Section 101.82 of the Board’s regulations provides that “[a] party
seeking to appeal a Department determination shall file an appeal . . . on or before the
15th day after the date on which notification of the decision of was . . . mailed to him
at his last known post office address.” 34 Pa. Code §101.82. “Where notice, mailed
to a party’s last known address, is not returned by the postal authorities as
undeliverable, the party is presumed to have received notice.” John Kenneth, Ltd. v.
Unemployment Compensation Board of Review, 444 A.2d 824, 826 (Pa. Cmwlth.
1982).     “[T]he fifteen-day time limit for filing an appeal from a Department
determination is mandatory.”          Suber v. Unemployment Compensation Board of
Review, 126 A.3d 410, 412 (Pa. Cmwlth. 2015).
              “An 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.”
Suber, 126 A.3d at 412 (citing Mountain Home Beagle Media v. Unemployment
Compensation Board of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008)); see also
Greene v. Unemployment Compensation Board of Review, __ A.3d __ (Pa. Cmwlth.,
No. 2750 C.D. 2015, filed March 10, 2017) (holding that administrative breakdown
must involve the right to or necessity for filing an appeal to warrant nunc pro tunc

       4
         “A party’s statement in its brief is treated as a judicial admission, which, although not
evidence, has the effect of withdrawing a particular fact from issue.” Ciamaichelo v. Independence
Blue Cross, 928 A.2d 407, 413 (Pa. Cmwlth.2007).




                                                4
relief). “[F]iling deadlines should be strictly enforced and . . . any exception to this
principle should be narrowly construed.” Vereb v. Unemployment Compensation
Board of Review, 676 A.2d 1290, 1294 (Pa. Cmwlth. 1996). “The burden to justify
an untimely appeal is heavy.” Suber, 126 A.3d at 412.
             While this Court is sympathetic to the tragedies Petitioner has
experienced, Petitioner’s challenge is limited to his receipt of the notice of
determination.    Here, the referee specifically found that the notice was sent to
Petitioner’s last known address and the record contains no evidence that the notice
was returned as undeliverable. Petitioner did not challenge those findings on appeal.
Unchallenged findings are conclusive on appeal and are binding on this Court.
Munski v. Unemployment Compensation Board of Review, 29 A.3d 133, 137 (Pa.
Cmwlth. 2011). As such, Petitioner is presumed to have received the notice. John
Kenneth, 444 A.3d at 826. Additionally, although Petitioner testified before the
referee that he did not receive the local service center’s notice of determination, he
conceded in his appellate brief that his father had erroneously placed the notice in
Petitioner’s previous mail. Therefore, the only issue before this Court is whether
Petitioner is entitled to nunc pro tunc relief.
             As the referee expressly found, the record contains no evidence
indicating that Petitioner was misled or misinformed regarding his appeal rights, nor
does the record contain any evidence suggesting that a breakdown in the
administrative process occurred.          Without such extraordinary circumstances,
Petitioner is unable to satisfy his heavy burden of justifying a nunc pro tunc appeal.
             Accordingly, the Board’s order must be affirmed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge

                                             5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jonathan Banks,                      :
                  Petitioner         :
                                     :    No. 1365 C.D. 2016
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :


                                  ORDER


           AND NOW, this 17th day of May, 2017, the July 20, 2016 order of the
Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jonathan Banks,                          :
                   Petitioner            :
                                         :
             v.                          : No. 1365 C.D. 2016
                                         : Submitted: March 3, 2017
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: May 17, 2017

             Jonathan Banks (Claimant) testified at the Referee’s hearing that he
did not receive his mailed copy of the notice of determination before the appeal
deadline. Claimant’s concession in his appellate brief that his father misplaced the
notice of determination forecloses nunc pro tunc relief. Thus, I concur in the result
reached by the majority. I write separately because I disagree with the Referee’s
understanding of the mailbox rule.
             The mailbox rule is an evidentiary presumption. It provides that
“proof that a letter was properly mailed raises a rebuttable presumption that the
letter was received.” Donegal Mutual Insurance Co. v. Insurance Department, 719
A.2d 825, 827 (Pa. Cmwlth. 1998). In Donegal, the Insurance Commissioner held
that because policyholders never received their insurer’s notice of cancellation of
their homeowners’ policy, their coverage did not terminate. On appeal, the insurer
challenged the Insurance Commissioner’s application of the mailbox rule. The
Commissioner found that the insurer’s evidence established that it had mailed the
notices, thereby entitling it to the rebuttable presumption that its notices had been
received by the policyholders. However, the Commissioner then found that the
policyholders successfully rebutted the presumption “by credibly denying receipt
of the notice.” Id. at 827. In addition, the policyholders presented the testimony of
“a disinterested third party,” who also credibly testified that he did not receive the
notice, even though his company was shown as having also been sent the notice.
Id.   In an aside, the Insurance Commissioner observed that had the insurer
presented testimony that its mailings had not been returned, that testimony could
have strengthened the presumption.            This Court affirmed the Commissioner’s
adjudication, citing Jensen v. McCorkell, 26 A. 366 (Pa. 1893) (noting that other
evidence can strengthen a presumption).
              Here, the Referee declaimed that testimony is always insufficient to
rebut the mailbox rule presumption where the records of the UC Service Center do
not show that its mailing was returned as undeliverable.1 In this way the Referee
sidestepped the need to make a credibility determination.                 There are several
problems with the Referee’s position.
              First, there is no foundation for the Referee’s finding that the UC
Service Center’s mailing to Claimant was not returned.                 Apparently, the file
forwarded to the Referee by the UC Service Center did not include the notice sent
to Claimant returned by the Postal Service as undeliverable. The Referee simply
inferred, based on the absence of evidence, that the notice was not returned.2

1
  The Board gave the Referee’s statement its imprimatur by adopting the Referee’s findings and
conclusions as its own.
2
  The absence of evidence, or “negative evidence,” cannot support a positive factual finding. Yi
v. State Board of Veterinary Medicine, 960 A.2d 864, 874 (Pa. Cmwlth. 2008). In Yi, a licensing
board exercised its discretion to reject all witness testimony, leaving it without any positive
(Footnote continued on the next page . . . )
                                   MHL-2
There was no foundation for the Referee’s inference. No one from the UC Service
Center testified about how claimant files are created or maintained or offered any
evidence to eliminate the possibility, for example, that the UC Service Center
misfiled the returned mailing.
               Second, Donegal established that testimony alone can rebut the
mailbox rule presumption. Indeed, it is difficult to posit what other evidence can
be used to prove a negative, i.e., lack of receipt of a mailing.3
               The Referee concluded that Claimant’s “[t]estimony of not having
received the [n]otice of [d]etermination in a timely manner, without any other
corroborating evidence as to what happened to the [n]otice of [d]etermination, is
insufficient to establish that a late appeal should be [allowed].” Referee Decision
at 2. The Referee believes it is always the claimant’s responsibility to explain
“what happened” to the notice he did not receive.
               I reject this adamantine rule, which appears to be based on a
misunderstanding of Donegal. Unless there are circumstances where corroboration
is easily obtainable, testimony alone, if found credible, should be sufficient to rebut
the mailbox rule presumption. It is absurd that a referee must disallow a nunc pro
tunc appeal where the referee believes the claimant’s denial of receipt. If the
mailbox rule presumption cannot be rebutted by a credible denial, then it becomes


(continued . . . )
evidence to support its finding that a veterinarian did not perform a physical examination. We
held that “[t]he remaining ‘evidence’ consists solely of a negative inference from a statement not
found credible. This is ephemeral, not substantial, evidence, which, at best, supports a
suspicion.” Id. at 875.
3
  The Referee requires someone in Claimant’s position to prove a negative proposition, i.e., non-
receipt of a mailed notice. It also ignores the practical reality that, in most cases, the addressee’s
denial of receipt will be the only available evidence of non-receipt.

                                              MHL-3
an irrebuttable presumption, which is disfavored by both the United States and
Pennsylvania Supreme Courts as violating due process. Volk v. Unemployment
Compensation Board of Review, 49 A.3d 38, 42 (Pa. Cmwlth. 2012) (citing
Department of Transportation, Bureau of Driver Licensing v. Clayton, 684 A.2d
1060, 1063 (Pa. 1996); Cleveland Board of Education v. LaFleur, 414 U.S. 632
(1974); and Bell v. Burson, 402 U.S. 535 (1971)). Rare is the case that a claimant
trying to rebut the mailbox rule will have a ready source of disinterested third-party
corroboration, as was the case in Donegal.
             Here, the Board expressly discredited Claimant’s assertion of late
receipt; therefore, Claimant failed to rebut the presumption of receipt in this case.
Accordingly, I concur in the result.

                                       _____________________________________
                                       MARY HANNAH LEAVITT, President Judge




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