             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeanne A. Wanner,                               :
                              Petitioner        :
                                                :
                      v.                        :    No. 1786 C.D. 2017
                                                :    Submitted: October 19, 2018
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: January 9, 2019


       Jeanne A. Wanner (Claimant) petitions for review of a November 6, 2017
Order (Order) of the Unemployment Compensation Board of Review (Board)
affirming a Referee’s August 23, 2017 decision (Decision), which dismissed as
untimely Claimant’s appeal of a June 2, 2017 determination (Determination). The
Determination found that Claimant was ineligible for unemployment compensation
(UC) benefits for 33 weeks under Section 404(d)(1) and 404(d)(1.1) of the UC Law,
43 P.S. § 804(d)(1), (1.1).1 Upon review, we are constrained to affirm.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 804(d)(1), (1.1). Section 404(d)(1.1) was added by Section 5 of the Act of June 17, 2011, P.L.
16. Section 404(d)(1) provides that an eligible employee is entitled to “compensation in an amount
equal to his weekly benefit rate less the total of . . . (iii) the amount of severance pay that is
       Claimant was employed by Bank of America (Employer) from November 9,
1992, to April 22, 2016, and was scheduled to receive $59,5082 of severance pay.
Claimant filed an application for UC benefits effective May 7, 2017. On June 2,
2017, the UC Service Center issued the Determination finding Claimant ineligible
for benefits under the UC Law until the week ending December 23, 2017, because
of her receipt of severance pay. (Determination; Referee Decision, Finding of Fact
(FOF) ¶ 1.) The Determination indicated that Claimant’s last day of work was April
22, 2017, rather than April 22, 2016. The Determination was mailed to Claimant at
her last known address in Austin, Texas, and it notified Claimant that the last day to
appeal the Determination was June 19, 2017. (FOF ¶¶ 2, 4, 5; Determination.) The
Determination was not returned as undeliverable. The UC Service Center did not
receive an appeal from Claimant until July 25, 2017, 36 days after the expiration of
the appeal period. (Certified Record (C.R.) Item No. 5; FOF ¶ 6.) The matter was
assigned to a Referee, and a hearing on the appeal’s timeliness was scheduled for
August 22, 2017.3
       At the hearing before the Referee, Claimant explained that she had not
received the Determination and, therefore, was unaware that she was ineligible for
benefits until she was unable to submit her bi-weekly claim on June 19, 2017. (C.R.
at Item 8, Hr’g Tr. at 5-6.) Claimant admitted that the Determination was mailed to
her correct address, she was unaware of problems receiving mail there, it was the


attributed to the week.” 43 P.S. § 804(d)(1). Section 404(d)(1.1)(i) defines severance pay as “one
or more payments made by an employer to an employe on account of separation from the service
of the employer, regardless of whether the employer is legally bound by contract, statute or
otherwise to make such payments.” 43 P.S. § 804(d)(1.1)(i).
        2
          Although Claimant reported on her severance pay questionnaire that her gross amount of
severance pay was $69,508, the Determination reported this amount as $59,508.
        3
          Employer was notified of the date, time, and place of the hearing, but did not appear at
the hearing.


                                                2
same address to which other UC materials relating to her UC benefits, including her
claim confirmation and UC Handbook, were mailed, and she had received those
other materials. (Id. at 5, 8.) Nonetheless, Claimant stated she did not recall
receiving the Determination. (Id. at 5.) Claimant testified that she called the UC
Service Center the day after she was unable to submit her bi-weekly claim, June 20,
2017, at which time a representative informed her of the Determination of her
ineligibility.4 (Id. at 6.) Claimant testified that the representative helped her
complete an online appeal during their conversation that day. Claimant explained
that she clicked submit on the online appeal, and took a screen capture of her
computer dated June 20, 2017, showing a completed petition for appeal, but also
admitted that she never received confirmation of the submission. (Id. at 7.) Because
she had not heard anything regarding her appeal, Claimant testified that she called
the UC Service Center on July 25, 2017, and a representative told her that the June
20 appeal was never received. (Id.) Claimant stated the representative instructed
her to file an appeal and attach the screen capture from June 20, 2017, which she did
on July 25, 2017. (Id.)
       Upon reviewing the evidence, the Referee found that because the
Determination was mailed to Claimant’s correct address and not returned as
undeliverable, Claimant was presumed to have received it. The Referee implicitly
discredited Claimant’s testimony to the contrary, noting that the mere denial of
receipt is not sufficient to defeat the presumption of receipt. (FOF ¶¶ 2, 3; Referee
Decision at 2.) Further, the Referee determined that while Claimant “may have
attempted to file an appeal on June 20, 2017[,] . . . an appeal was not received by the

       4
          The representative with whom Claimant spoke on June 20, 2017, also advised Claimant
that the Determination incorrectly listed Claimant’s last day of work as April 22, 2017, rather than
April 22, 2016.


                                                 3
Department on that date.” (FOF ¶ 7.) The Referee found that the appeal was
received on July 25, 2017, and was untimely, but acknowledged that it would have
been untimely even if it was received on June 20. (Referee Decision at 2.) Not only
did the Referee find that the appeal was untimely, but the Referee also found that
Claimant did not meet her burden to establish that the untimeliness of the appeal was
due to misinformation, fraud, administrative breakdown, or non-negligent conduct.
(FOF ¶¶ 6, 8, 9.) Therefore, the Referee dismissed the appeal as untimely. (Referee
Decision at 3.)       Claimant appealed, and the Board affirmed, adopting and
incorporating the Referee’s findings of fact and legal conclusions. The Board, citing
to Claimant’s admission that she had no problem receiving mail at her current
address, also discredited her testimony that she had not received the Determination.
(Order.)
       On appeal,5 Claimant continues to argue that she did not receive the
Determination, and also asserts that she has met the burden to allow her to proceed
nunc pro tunc on the untimely appeal of the Determination. Claimant asserts that
but for a UC Service Center representative incorrectly entering the year for her last
date of her employment, she never would have received an incorrect Determination
in the first place and, thus, would not have had to file an appeal. The UC Service
Center representative’s error in entering the date amounts to fraud or a breakdown
in the administrative process, Claimant contends, and therefore she should be able
to pursue the appeal of the Determination, which she maintains was filed only one
day past the June 19, 2017 deadline. Claimant argues the dismissal of her appeal as


       5
          Our review of the Board’s Order “is limited to determining whether necessary findings
of fact were supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review,
173 A.3d 1224, 1227 n.2 (Pa. Cmwlth. 2017).


                                               4
untimely is prejudicial because she acted with due diligence and good faith in filing
the appeal after discovering a “breakdown in the process.” (Claimant’s Brief (Br.)
at 8.)
         The Board responds that Claimant did not prove she did not receive the
Determination or that the circumstances surrounding her untimely appeal of the
Determination warrant nunc pro tunc relief. In the Board’s view, Claimant’s appeal
was untimely whether it was filed on July 25, 2017, as the Board contends, or June
20, 2017, as Claimant contends. It asserts it properly dismissed the appeal because
Claimant did not prove that the untimeliness was the result of an administrative
breakdown or fraud.
         Section 501(e) of the UC Law provides that unless a claimant “files an appeal
with the [B]oard[] from the determination . . . within fifteen calendar days after such
notice was . . . mailed to [claimant’s] last known post office address” then the
determination “shall be final and compensation shall be paid or denied in accordance
therewith.” 43 P.S. § 821(e). This statutory appeal period is “jurisdictional and may
not be extended as a matter of grace or indulgence;” therefore, appeals filed even
one day after the appeal period are untimely. Dumberth v. Unemployment Comp.
Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003). When a determination is
mailed to a claimant’s last known address and is not returned, “there is a presumption
. . . which the referee may invoke in reaching a determination that the claimant did
have proper notice.” Gaskins v. Unemployment Comp. Bd. of Review, 429 A.2d 138,
140 (Pa. Cmwlth. 1981).
         Initially, we note that to the extent Claimant asserts she did not receive the
Determination, the Board did not credit her testimony, citing her testimony that she
had not had any problems with her mail. We may not revisit that credibility



                                            5
determination. See Narducci v. Unemployment Comp. Bd. of Review, 183 A.3d 488,
498 (Pa. Cmwlth. 2018) (“The Board is the ultimate fact finder in UC cases and has
the sole discretion to determine the credibility of witnesses.”).                  Because the
Determination was mailed to Claimant at her last known address, which she
acknowledged was her correct address, and the Board discredited Claimant’s
testimony that she did not receive the Determination, it is presumed that Claimant
received the Determination. See Gaskins, 429 A.2d at 140. The Determination was
mailed on June 2, 2017, and advised Claimant that the deadline to timely appeal was
June 19, 2017.
       Although the Board and Claimant dispute the date upon which the appeal was
filed, both dates, June 20, 2017, and July 25, 2017, are beyond the 15-day statutory
appeal period. Thus, Claimant’s appeal is untimely regardless of which filing date
is used. Accordingly, we need to determine whether Claimant has shown that she
should be given nunc pro tunc relief.6 Nunc pro tunc relief for an untimely appeal
may be considered in “limited circumstances,” and “[t]he burden to establish the
right to have an untimely appeal considered is a heavy one.”                         Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). A
party can meet this burden by showing that “a delay in filing the appeal is caused by
extraordinary circumstances involving fraud, administrative breakdown, or non-
negligent conduct.” Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d 561,
563 (Pa. Cmwlth. 2012) (quoting Mountain Home Beagle Media v. Unemployment
Comp. Bd. of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008)).



       6
          Claimant acknowledges the untimeliness of the June 20, 2017 appeal in her brief to this
Court, arguing that “[o]nce [Claimant] found out that she had missed the deadline, she immediately
filed the appeal one day late.” (Claimant’s Br. at 5.)


                                                6
      Claimant asserts that the UC representative’s error in entering her last day of
work constitutes both fraud and an administrative breakdown that support the grant
of nunc pro tunc relief.      Administrative breakdowns may occur when “an
administrative body acts negligently, improperly or in a misleading way.” Union
Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746
A.2d 581, 584 (Pa. 2000). However, “not every misstatement by an apparently
authoritative person will justify a nunc pro tunc appeal; rather, the misinformation
must relate to the availability, timing, or need for an appeal.” Greene v.
Unemployment Comp. Bd. of Review, 157 A.3d 983, 992 (Pa. Cmwlth.), petition for
allowance of appeal denied, 175 A.3d 217 (Pa. 2017) (emphasis added).
      For example, in Greene, the claimant did not timely appeal a determination
based upon a misunderstanding about the effect his receipt of severance payments
would have on his UC benefit eligibility due to a conversation he had with a UC
representative prior to his being laid off. Id. at 984-85. The Board dismissed the
appeal as untimely, and we affirmed, rejecting the claimant’s argument that nunc
pro tunc relief should be granted because the UC representative had misled him
about his eligibility for UC benefits. Id. at 991. We held that any misinformation
provided by the representative regarding the claimant’s eligibility was not related to
the claimant’s right or necessity of appeal. Id. Moreover, because the alleged
misleading statements were made months prior to the appeal period, and, in the
interim, the claimant had received correct information in his UC Handbook
regarding his eligibility and in the determination regarding his appeal rights, we
determined that his untimely appeal was not “caused by fraud or its equivalent by
the administrative authorities, [or] by a breakdown in the appellate system,” and
nunc pro tunc relief was not warranted. Id. at 992 (emphasis omitted).



                                          7
       In contrast, in Walsh v. Unemployment Compensation Board of Review, we
found a claimant had met her burden to show an administrative breakdown justifying
nunc pro tunc relief. (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013), slip
op. at 13.7 There, the claimant received a determination finding her ineligible, which
she timely appealed. Less than one month after she received the determination, the
UC Service Center issued a second determination of ineligibility premised on
different grounds. Id. at 2. During the 15-day appeal period for the second
determination, the claimant received a notice of hearing for the appeal of the first
determination, and the claimant, believing that the upcoming hearing would address
the issues set forth in the second determination, did not immediately appeal the
second determination. Id. at 3, 5-6. A hearing was held on the appeal of the first
determination, and a referee reversed, finding the claimant not ineligible. Id. at 3.
The claimant received a lump sum payment after the referee’s hearing and decision,
but nothing more. Id. at 5. The claimant called the UC Service Center repeatedly
and was finally informed that she would not receive any more benefits because she
had not appealed the second determination. Id. The claimant then filed a late appeal
to the second determination, explaining that she believed all issues regarding her
eligibility for benefits were resolved at the hearing, and she had received many
reassurances from UC representatives that “everything was fine and/or time needed
to pass for the referee’s ruling to go through [the] system.” Id. at 6. Therefore, the
claimant argued, she was unaware of the need to file a separate appeal until weeks
after the hearing, which was well after the 15-day appeal period for the second
determination. Id. The Board dismissed the claimant’s appeal of the second
determination as untimely, but we reversed, agreeing with the claimant that the

       7
         Walsh, an unreported opinion, is cited for its persuasive value in accordance with Section
414(a) of the Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).


                                                8
service center’s mishandling of the claim was an administrative breakdown that
caused her confusion about the necessity to appeal the second determination. Id. at
10, 12-13. As a result of this mishandling, we found that the claimant “was forced
to act when she would not otherwise be required to act or risk losing [UC] benefits
due to the errors committed by the Service Center,” which prevented her from
“understand[ing] the need to appeal the second . . . determination.” Id. at 12-13. We
found that under those circumstances, nunc pro tunc relief was warranted. Id. at 13;
see also Seropian v. State Ethics Comm’n, 20 A.3d 534, 542 (Pa. Cmwlth. 2011)
(finding an administrative breakdown justifying nunc pro tunc relief where the
agency’s regulations relating to appeal procedures were “unclear and inconsistent”
so as to mislead the appellant).
      The claimant in Walsh did not timely appeal due to actions of UC
representatives that mishandled her claim resulting in claimant’s confusion
regarding the right or necessity of appeal, whereas the claimant in Greene did not
appeal because of a misunderstanding about his eligibility for benefits. The first
situation justified the grant of nunc pro tunc relief as the agency’s mishandling of
the claim went to the necessity of appeal, but the second did not. The circumstances
of the present case are more similar to Greene than to Walsh. Claimant has not
presented evidence that any error or misrepresentation on behalf of the UC
authorities were the cause of her untimely appeal. Claimant’s arguments focus upon
the underlying error in the Determination, but our analysis for determining whether
nunc pro tunc relief may be granted centers on what caused the untimely appeal,
not whether the Determination was in error. While Claimant asserts the alleged
incorrect entry of her last date of work is fraud or administrative breakdown
warranting nunc pro tunc relief, such alleged error did not cause her to file the appeal



                                           9
after June 19, 2017. Claimant did not testify before the Referee that the UC
representative’s alleged error was the reason that she did not timely appeal.
Moreover, Claimant did not speak with any UC representative about the
Determination until after the 15-day appeal period had already run, meaning that the
cause of the untimeliness could not have been related to her receipt of
misinformation about the right or need to appeal. As noted above, because nunc pro
tunc relief is granted only in “limited circumstances,” the burden on a party to
establish their entitlement to such relief is heavy. Hessou, 942 A.2d at 198.
Claimant has not met that burden as she has not shown that actions attributable to
the agency were the reason for her untimely appeal of the Determination.8
       Because Claimant was found to have received the Determination, did not
appeal that Determination within the statutory time period, and did not meet her
heavy burden of establishing that the untimeliness of that appeal was the result of
fraud or an administrative breakdown, we are constrained to affirm the Board’s
Order.



                                           _____________________________________
                                           RENÉE COHN JUBELIRER, Judge




       8
         We note that our decision does not necessarily mean Claimant may be foreclosed from
ever receiving UC benefits, because the Determination found Claimant ineligible only for the 33
weeks in which her severance pay was deductible.


                                              10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeanne A. Wanner,                        :
                         Petitioner      :
                                         :
                    v.                   :   No. 1786 C.D. 2017
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


     NOW, January 9, 2019, the November 6, 2017 Order of the Unemployment
Compensation Board of Review is AFFIRMED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
