               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1191 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1192 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1193 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1194 C.D. 2016
                    Respondent        :
Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1195 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1196 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1197 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1198 C.D. 2016
                    Respondent        :   Submitted: December 9, 2016

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                               FILED: May 12, 2017
              Patricia D. Phillips (Claimant), pro se, petitions this Court for review of
the Unemployment Compensation Board of Review’s (UCBR) June 8, 2016 orders
(UCBR Orders) dismissing Claimant’s appeals because after the UCBR notified
Claimant that it appeared her appeals from the Referee’s decisions were untimely and
that she had fifteen days to request a hearing on the issue or her appeals would be
dismissed, she failed to timely request a hearing. The issue before this Court is
whether the UCBR properly dismissed Claimant’s appeals. After review, we vacate
and remand.
              Claimant, an hourly employee for H&R Block (Employer), filed for
unemployment compensation (UC) benefits for various claim weeks. On multiple
dates in January and early February 2016, the Department of Labor and Industry’s
(Department) Duquesne UC Service Center issued determinations denying Claimant
UC    benefits,    establishing   fault   overpayments      and      imposing   penalties
(Determinations). Each of the Determinations was mailed to Claimant’s address on
record with the Department, i.e., 84 Euclid Avenue, McKees Rocks, Pennsylvania
15136-2034 (Home Address), and notified Claimant that she had fifteen days from
the final date stated therein to appeal from the Determination.
              Claimant appealed from the Determinations on March 10, 2016 (Appeal
Petitions). On March 17, 2016, the UCBR sent notices to Claimant at her Home
Address informing her that a hearing would be held on April 1, 2016 to ascertain
whether her Appeal Petitions were timely and valid. Neither the Claimant nor the
Employer appeared at the April 1, 2016 hearing. On April 7, 2016, the Referee
issued decisions and orders (Decisions and Orders) to Claimant’s Home Address
dismissing the Appeal Petitions as untimely. The Decisions and Orders expressly
stated that the final date to appeal therefrom was April 22, 2016.


                                            2
              Claimant appealed from the Decisions and Orders (Decision Appeal
Petitions) on May 5, 2016.          Each of Claimant’s Decision Appeal Petitions was
accompanied by a letter in which Claimant stated, in relevant part:

              I sent in an appeal and was told it did not get through
              although on my end it showed it did. Then, I sent another
              appeal in by fax and I did not hear anything. I was waiting
              for what to do. I work everyday without one day off 7
              days a week and between 12-15 hour days from January
              2nd through April 20th, this year.[1] I also work afterwards
              in the off season so that I may be able to get unemployment
              and also be able to work for [Employer] the following year.
              I did have Easter off but that was the only day. Then I
              called again in April and they said I should be receiving
              papers. Then I called after April 20th and they said I
              should have been at a hearing on April 1st. I was
              shocked as I never received papers for that I would had to
              make arrangements but I would have showed up, and then
              I was told I owed over $4[,]000[.00]. I could not believe
              it. I didn’t understand the fact I didn’t receive anything
              in the mail so then the clerk I talked to told me he would
              resend them, so I wa[]ited[]for 5 days and called again
              and was told that I had been calling the wrong people, I
              had to call downtown Pittsburgh (near where I live) so I
              did that and they told me I was denied everything
              because I did not show up for a hearing I did not know
              about. I would have showed up for sure if I would have
              known. It would be crazy for me not to. . . . And, [y]es we
              get other peoples[’] mail all the time. I do not know where
              the mail came to and it is certainly not the fault of the
              [Department] to get the mail to me but if they had sent it
              certified there would be no way somebody else got it and
              then [at] least you would have known that I did not receive
              it.
              I am faxing with copies that came from the Appeals
              dep[artment] and you can see where I tried to respond not
              including phone calls and that should be easily traced. I


       1
         Claimant explains in her brief that during this time “her husband had a heart attack, mini
strokes and then [in] April was diagnosed with 3rd [s]tage [l]ung [c]ancer.” Claimant’s Br. at 15.
                                                3
              think there should be a log every time I tried to call. Please
              someone help me.

Original Record (O.R.) Item No. 11, May 5, 2016 Letter, attachment to Decision
Appeal Petitions (May 5, 2016 Letter) (emphasis added).2 Claimant also emailed the
UCBR a copy of her May 5, 2016 Letter and explained: “Please see attached letter[;]
I sent a fax but concerned that it did not go through. Please give me a chance to
state my case and help me out of this situation.” O.R. Item No. 11, May 5, 2016
email (May 5, 2016 Email) (emphasis added).
              On May 10, 2016, the UCBR sent a letter to Claimant’s Home Address
informing Claimant that her Decision Appeal Petitions were filed more than fifteen
days after the Referee’s Decisions and Orders were mailed (May 10, 2016 UCBR
Letter). The May 10, 2016 UCBR Letter also advised Claimant that if she

              believe[s] that [she] filed [her] appeal within the fifteen
              (15)[-]day period or that it should be deemed timely for
              other reasons, [she] must request in writing that a

       2
         Claimant’s May 5, 2016 Letter also claimed that Employer incorrectly reported her
earnings. Claimant stated:
              I first looked at 2015. I was shocked to find out that the [Department]
              said I did not report earnings I made. I have always reported my
              earnings[;] they are small[.] I make $9[.00] now [;] I made $8.50 in
              2015. We work a total of maybe 20-24 hours a week maybe but not
              always. Then I looked at the earnings reported by [E]mployer and
              that didn[’]t make any sense as it looked like my earnings were
              divided in half. I have never worked one week since 1996 that has
              ever been right on the same amount of hours as the previous. At
              [Employer,] we all have to take off 8 weeks and my weeks that I am
              off generally starts July 1st through [the] end of September and mid
              October this year. I am not salary, I am hourly[;] none of us work that
              way. From July through [m]id October, I would have reported no
              earnings. . . . The weeks they said I did not report earnings I made
              $178[.00] a week even below the amount I would be allowed
              although I know I reported income. . . . If I had known this[,] I would
              have screen shot my earnings.
May 5, 2016 Letter.
                                                4
               hearing be scheduled to allow [her] the opportunity to set
               forth [her] reasons as to why [she] believe[s] her appeal was
               timely filed.

O.R. Item No. 12, May 10, 2016 UCBR Letter. The May 10, 2016 UCBR Letter
further informed Claimant that “[u]nless the [UCBR] receives a reply[] specifically
requesting a hearing on the timeliness issue, postmarked by May 25, 2016, it will
proceed to issue an appropriate order.” Id. (bold and italic emphasis added). Because
the UCBR did not receive a response from Claimant, on June 8, 2016, the UCBR
issued decisions and orders (UCBR Decisions and Orders) dismissing Claimant’s
appeals as untimely.3 Claimant appealed to this Court.4




       3
          The matter before the Court involves the UCBR’s Decisions and Orders. Underlying the
case are four separate occurrences which impact the instant action: (1) Claimant’s untimely filing of
her Appeal Petitions from the March 10, 2016 Determinations challenging the denial of her UC
benefits, establishing the overpayments and imposing the penalties; (2) Claimant’s failure to appear
at the April 1, 2016 Appeal Petitions timeliness hearing; (3) Claimant’s untimely filing from the
May 5, 2016 Decision Appeal Petitions; and (4) Claimant’s failure to timely request a hearing in
response to the May 10, 2016 UCBR Letter. Essentially, only the last incident is before this Court,
because if the UCBR improperly denied Claimant a hearing on the timeliness of her Decision
Appeal Petitions, the matter must be remanded for a hearing. However, if the UCBR properly
dismissed Claimant’s Decision Appeal Petitions, the UCBR’s Orders must be affirmed.
        Claimant asserts she did not receive the Department’s Determinations, the hearing notices or
the Referee’s Decisions and Orders, that were allegedly mailed to her. We note that “[w]here notice
is mailed to a claimant’s last known address and not returned by the postal authorities as
undeliverable, the claimant is presumed to have received it and is barred from attempting to appeal
after the expiration of the appeal period . . . .” Mihelic v. Unemployment Comp. Bd. of Review, 399
A.2d 825, 827 (Pa. Cmwlth. 1979). “[S]imply stating that a notice was not received is not a
sufficient reason for extending the time for filing an appeal.” ATM Corp. of Am. v. Unemployment
Comp. Bd. of Review, 892 A.2d 859, 864 (Pa. Cmwlth. 2006). However, “our case law has
established the necessity of providing an addressee the opportunity to rebut the presumption
of receipt[.]” Volk v. Unemployment Comp. Bd. of Review, 49 A.3d 38, 42 (Pa. Cmwlth. 2012)
(emphasis added).
        4
          “This Court’s scope of review in an unemployment compensation appeal is limited to
determining whether an error of law was committed, whether constitutional rights were violated, or
whether necessary findings of fact are supported by substantial evidence.” Han v. Unemployment
Comp. Bd. of Review, 42 A.3d 1155, 1156 n.5 (Pa. Cmwlth. 2012).
                                                 5
               The law is well established:

               Section 502 of the [Unemployment Compensation] Law
               [(UC Law)5] provides that a party has 15 days to appeal a
               referee decision to the [UCBR]. [Section 101.82 of t]he
               Department[’s R]egulation[s], 34 Pa. Code § 101.82,
               provides an appeal of an unemployment compensation
               determination must be filed on or before the fifteenth day
               after the date the decision was delivered personally or
               placed into the mail. If an appeal is not filed within fifteen
               days of the mailing of the determination, it becomes final,
               and the [UCBR] does not have the requisite jurisdiction to
               consider the matter. An appeal filed one day after the 15-
               day appeal period is untimely.
               However, the [UCBR] may consider an untimely appeal
               in limited circumstances. 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. An appellant 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. ‘[F]ailure to file an appeal within fifteen days,
               without an adequate excuse for the late filing, mandates
               dismissal of the appeal.’        [U.S.] Postal Serv. v.
               Unemployment Comp. Bd. of Review, . . . 620 A.2d 572,
               573 ([Pa. Cmwlth.] 1993).

Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth.
2008) (citations and footnote omitted; emphasis added). Section 101.61(a) of the
Department’s Regulations states:

               If an appeal from a decision of the Department or an
               application for further appeal appears to have been filed
               beyond the applicable time limit, the tribunal shall advise
               the appealing party in writing that it appears not to have a
               [sic] jurisdiction because of the late filing, and that the
               appeal or application for further appeal will be dismissed
               without a hearing unless the appealing party notifies the
      5
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
                                                 6
             tribunal in writing within the succeeding 15 days from the
             date of such notice, that he contends the appeal or
             application for further appeal was timely filed and that he
             desires a hearing. If no reply from the appealing party is
             received within the 15-day period, or if the appealing party
             does not request a hearing, the tribunal shall dismiss the
             appeal or application for further appeal.

34 Pa. Code § 101.61(a).
             Here, Claimant’s Decision Appeal Petitions were filed beyond the
fifteen-day appeal window. However, Claimant’s Decision Appeal Petitions were
accompanied by Claimant’s May 5, 2016 Email in which Claimant explicitly
requested “a chance to state [her] case,” and letter in which Claimant urgently
pleaded, “someone help me.” The letter further explained that Claimant was not
aware that Referee Decisions and Orders had been issued because she “didn’t receive
anything in the mail[,]” and although she contacted the Department in April and was
told she would be receiving papers, she did not learn that the Decisions had been
issued until she again called the Department sometime after April 20, 2016 and was
told she should have been at the April 1, 2016 hearing. May 5, 2016 Email (emphasis
added), May 5, 2016 Letter. Claimant further explained in the May 5, 2016 Letter
that in that phone call, a Department employee informed her that copies of the
Decisions and Orders would be sent to her; however, after waiting five days and not
receiving the Decisions and Orders, she called again and learned that she had been
speaking to the “wrong people” and, instead, had to contact the Pittsburgh UC office.
May 5, 2016 Letter. When she did so, she ascertained she “was denied everything
because [she] did not show up for a hearing [she] did not know about.” Id. She
subsequently filed her Decision Appeal Petitions. Claimant’s representations in her
May 5, 2016 Letter provides an explanation which, if true, could justify the late-filing
of her Decision Appeal Petitions.      Although the UCBR could not consider the


                                           7
substance of Claimant’s representations purportedly justifying her untimely filings,6
Claimant’s aforementioned communications were sufficient to inform the UCBR that
Claimant requested to be heard on the timeliness of her Decision Appeal Petitions.
               Our Supreme Court “ha[s] long refused to give overly technical,
restrictive readings to procedural rules, particularly when remedial statutes such as
the [UC Law] are involved.             Dismissals are particularly disfavored.” Miller v.
Unemployment Comp. Bd. of Review, 476 A.2d 364, 366-67 (Pa. 1984) (citations
omitted). The instant action is analogous to this Court’s unreported opinion in James
v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 535 C.D. 2011, filed
December 1, 2011),7 wherein this Court, relying on Miller, held that the claimant
properly requested to reopen a referee hearing.                Although the claimant did not
explicitly request the UCBR to reopen the hearing as directed in the relevant UCBR
regulation, she “explained why she was absent from the hearing, and she asked to
submit to the [UCBR] the evidence she originally planned to present at the hearing.”
Id., slip op. at 6. This Court concluded, “[w]hile [c]laimant’s filing does not include
precise language asking the [UCBR] to reopen the hearing, it would be an unjust
application of form over substance not to remand this matter to allow [c]laimant to
appear at a fact-finding hearing.” Id.
               For similar reasons, under the specific circumstances presented herein,
the UCBR should have scheduled a hearing to receive evidence on the timeliness of
Claimant’s Decision Appeal Petitions under Section 101.106 of the Department’s

       6
          “It is well settled that the [UCBR] is restricted to reviewing the evidence submitted by the
referee unless it takes additional evidence under [S]ection 101.106 of the [R]egulations[, 34 Pa.
Code § 101.106].” Han v. Unemployment Comp. Bd. of Review, 42 A.3d 1155, 1157 (Pa. Cmwlth.
2012).
        7
          This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). This unreported case is cited for its persuasive value.

                                                  8
Regulations without requiring Claimant to again request the relief she explicitly
sought in her May 5, 2016 Email to the UCBR.8
               For all of the above reasons, we vacate the UCBR’s Orders and remand
the matters to the UCBR for a hearing on the timeliness of Claimant’s Decision
Appeal Petitions.9


                                             ___________________________
                                             ANNE E. COVEY, Judge




       8
          Our holding in this case is consistent with the well-established principle that “the purpose
of the [Law] is remedial in nature and must be liberally construed.” Schwab v. Unemployment
Comp. Bd. of Review, 427 A.2d 789, 791 (Pa. Cmwlth. 1981).
        9
          If the UCBR finds Claimant’s late filing from the Decision Appeal Petitions to be
excusable, it may then consider whether her failure to appear at the April 1, 2016 hearing on the
timeliness of her Appeal Petitions was excusable. Further, if the UCBR determines that the
Claimant’s absence was excusable, Claimant is entitled to a hearing on the timeliness of her Appeal
Petitions. Finally, if, after a timeliness hearing, the UCBR excuses Claimant’s late filing from the
Appeal Petitions, then the UCBR may reach Claimant’s substantive challenges to the Department’s
Determinations.
                                                  9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1191 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1192 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1193 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1194 C.D. 2016
                    Respondent        :

Patricia D. Phillips,                 :
                         Petitioner   :
                                      :
                    v.                :
                                      :
Unemployment Compensation             :
Board of Review,                             :   No. 1195 C.D. 2016
                          Respondent         :

Patricia D. Phillips,                        :
                          Petitioner         :
                                             :
                    v.                       :
                                             :
Unemployment Compensation                    :
Board of Review,                             :   No. 1196 C.D. 2016
                    Respondent               :

Patricia D. Phillips,                        :
                          Petitioner         :
                                             :
                    v.                       :
                                             :
Unemployment Compensation                    :
Board of Review,                             :   No. 1197 C.D. 2016
                    Respondent               :

Patricia D. Phillips,                        :
                          Petitioner         :
                                             :
                    v.                       :
                                             :
Unemployment Compensation                    :
Board of Review,                             :   No. 1198 C.D. 2016
                    Respondent               :

                                       ORDER

             AND NOW, this 12th day of May, 2017, the Unemployment
Compensation Board of Review’s (UCBR) June 8, 2016 orders are vacated and the
matters are remanded to the UCBR for a hearing on the timeliness of Claimant’s May
5, 2016 appeal petitions in accordance with this Opinion.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
