        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Guy Micciche,                            :
                         Petitioner      :
                                         :
            v.                           :   No. 304 C.D. 2018
                                         :   Submitted: December 21, 2018
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: March 28, 2019


            Petitioner Guy Micciche (Claimant), pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board), which
affirmed a decision of a Referee, holding that Claimant failed to appeal timely from
the Scranton UC Service Center’s (Service Center) determination denying
unemployment compensation benefits. As a result, Claimant was not entitled to
benefits. We now affirm the Board’s decision.
            Claimant worked for Euphoria Post (Employer). (Certified Record
(C.R.), Item No. 3.) Claimant voluntarily left his position and filed a claim for
unemployment compensation benefits. (Id.) The Service Center issued a notice of
determination, denying benefits pursuant to Section 402(b) of the Pennsylvania
Unemployment Compensation Law (Law),1 relating to voluntarily quitting
employment without cause of a necessitous and compelling nature. (Id.) The
Service Center made this determination after Claimant had received unemployment
compensation benefits, totaling $822. (Id.)
               By Notice of Determination (NOD), mailed on August 17, 2009, the
Department of Labor and Industry’s (Department) Office of UC Benefits informed
Claimant that his claim was denied and that he had received unemployment
compensation benefits to which he was not entitled. (Id.) As a result, Claimant
received an overpayment and was required to repay the overpayment. (Id.) Pursuant
to the NOD, Claimant’s last day to appeal timely was September 1, 2009. (Id.)
               Claimant did not file his petition for appeal until September 22, 2017—
eight years after the expiration of the appeal period. (C.R., Item No. 4.) The Referee
conducted a hearing on October 20, 2017. (C.R., Item No. 8, at 1.) Employer did
not appear for the hearing. (Id.) Claimant appeared pro se and testified on his own
behalf. (Id.) The Referee noted that the hearing involved but one issue: whether
Claimant had filed a timely and valid appeal from the initial Service Center
determination. (Id. at 3-4.) Claimant testified that “on the record, it . . . is definitely
untimely.” (Id. at 4.) He explained, however, that upon discovering that an issue
existed, he immediately took efforts to determine exactly what the issue was. (Id.)
Claimant testified that in July and August of 2009, he was residing at his parents’
home.       (Id. at 5-6.)   Claimant stated that he resided with his parents until




        1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(b).


                                            2
around 2011,2 but he was unsure of exactly when he moved again. (Id. at 6.)
Claimant further testified that he did not remember contacting the Service Center on
April 23, 2010, but he admitted that, “I’m sure that’s—that I did.” (Id.)
                The Referee issued a decision and order, dismissing Claimant’s appeal
in accordance with Section 501(e) of the Law.3 (C.R., Item No. 9.) The Referee
concluded there was nothing in the record demonstrating that Claimant was
misinformed or in any way misled regarding his right to appeal. (Id.) Accordingly,
the Referee dismissed Claimant’s petition for appeal. (Id.)
                Claimant appealed the Referee’s decision to the Board. (C.R., Item
No. 10.) By decision and order, dated January 31, 2018, the Board affirmed the
Referee’s order, concluding that Claimant’s appeal was untimely. (C.R., Item
No. 11.) In so doing, the Board made its own findings of fact:
               1.      On August 17, 2009, the Department . . . mailed to
                       the claimant’s correct address two determinations:
                       (1) denying unemployment compensation benefits
                       to him and (2) establishing [an] $822.00 fault
                       overpayment.
               2.      The determination notified the claimant that
                       September 1, 2009, was the final day to file a valid
                       appeal to a referee.
               3.      On August 26, 2009, the claimant spoke about the
                       determinations with a Department representative,
                       who re-emailed them to him.
               4.      On April 23, 2010, the claimant discussed the
                       overpayment with a Department representative and
                       was advised to file a late appeal.


      2
          Claimant explained he moved every year and resided at “1948 Broadway Avenue”
from 2013 to 2014, “Oakdale” in 2015, “1947 Westmont” in 2016, and “801” since 2017.
(C.R., Item No. 8, at 7.)
      3
          43 P.S. § 821(e).

                                             3
              5.     In 2011, the claimant moved, but his parents
                     continued to reside at that address.
              6.     On June 21, 2016, a lien was filed against the
                     claimant due to his overpayment.
              7.     On July 16, 2017, the Department mailed an
                     amnesty notice to the claimant.
              8.     On August 29, 2017, the Department mailed a
                     second amnesty notice to the claimant.
              9.     In September 2017, the claimant discovered the lien
                     on his credit report.
              10.    On September 22, 2017, the claimant discussed the
                     overpayment with a Department representative and
                     was advised to file a late appeal.
              11.    The     claimant’s     appeal      was filed     on
                     September 22, 2017.

(Id.) Based on those findings, the Board reasoned, citing Section 501(e) of the Law,
that “unless an interested party files an appeal from the Department’s determination
within fifteen days after the date of the determination, the Department’s
determination is final.” (Id.) The Board found that the final day for Claimant to file
an appeal from the Department’s determination was September 1, 2009, and
Claimant filed an appeal on September 22, 2017. The Board, therefore, concluded
that Claimant’s appeal was untimely. (Id.)
              On appeal,4 Claimant argues that substantial evidence does not exist to
support the Board’s finding that he neglected to appeal the Board’s determination.
We interpret Claimant’s arguments to be challenges to findings of fact
numbers 1 and 4. Claimant further argues that, due to his non-negligent conduct,
the Board erred in concluding that the appeal should be considered untimely.
       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.

                                               4
             We first address Claimant’s argument relating to substantial evidence.
In unemployment compensation cases, the Board is the ultimate finder of fact.
Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1385 (Pa. 1985). The
Board’s findings of fact are conclusive on appeal so long as there is substantial
evidence to support these findings in the record, taken as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977).
Substantial evidence is relevant evidence that a reasonable mind might consider
adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of
Review, 604 A.2d 1159, 1163 (Pa. Cmwlth. 1992). When determining whether
substantial evidence to support the Board’s findings existed, we must examine the
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618
(Pa. Cmwlth. 1999). This determination can only be made upon examination of the
record as a whole. Taylor, 378 A.2d at 831. Even if evidence exists in the record
that could support a contrary conclusion, it does not follow that the findings of fact
are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of
Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986). Any of the Board’s findings of fact
that are not specifically challenged on appeal are conclusive upon review. Salamak
v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
             Finding of fact number 1 provides: “On August 17, 2009, the Service
Center mailed to the claimant’s correct address two determinations: (1) denying
unemployment compensation benefits to him and (2) establishing an $822.00 fault
overpayment.”      (C.R., Item No. 11.)         Claimant challenges whether the
determinations were mailed to the “correct address,” not whether the Service Center


                                          5
actually mailed the determinations. (C.R., Item No. 11.) The Service Center mailed
the determinations to Claimant at an address in Milan, Pennsylvania. During the
hearing, the Referee specifically questioned Claimant about his address in July or
August 2009. Claimant testified that, at that time, he was living with his parents in
Milan, Pennsylvania.        Claimant confirmed that the Department addressed the
determinations (one of which is the NOD at issue in this matter) to the same address
at which he was living in July and August 2009. On appeal, Claimant states that in
August 2009, he was not living with his parents in Milan, Pennsylvania. Instead, he
was living with his aunt in California. There is nothing in the record to support this
assertion, despite the Referee specifically questioning Claimant about his residence
in August 2009. To the contrary, Claimant’s own testimony supports finding of fact
number 1. Thus, we conclude that substantial evidence exists to support that finding.
             Finding of fact number 4 provides: “On April 23, 2010, the claimant
discussed the overpayment with a Department representative and was advised to file
a late appeal.” (C.R., Item No. 11.) Claimant asserts that this finding is in error
because he never spoke with a Department representative. Instead, he suggested that
it may have been his father or brother who spoke with the Department representative.
The claim record entry from this phone conversation indicates that Claimant was
very upset and disputing the overpayment, and the Department representative
advised Claimant of the option to file a late appeal and request a possible hardship
and informed Claimant that if the Service Center could work an adjustment, it would
contact him. (C.R., Item No. 1 at 6.) The entry also indicates that Claimant calmed
down and apologized. (Id.) The Referee also questioned Claimant about the phone
call. Claimant testified:
             I don’t recall, however the lady that I spoke to recently on
             the phone, she had informed me that I did call in, you

                                          6
             know, and I’m sure that I did. It wouldn’t be on there if I
             didn’t write, didn’t talk. . . . But I don’t remember, but
             I-I’m sure that’s—that I did.

(C.R., Item No. 8, at 6.) Claimant admitted that he probably did speak with the
Department representative. Claimant’s assertion that father or brother spoke to the
Department representative is not supported by the record. Thus, we conclude that
substantial evidence exists to support finding of fact number 4.
             We next address Claimant’s argument that the Board erred in
concluding that his appeal was untimely, in light of his non-negligent conduct.
Section 501 of the Law provides that a party has fifteen days to appeal a referee
decision to the Board. “If an appeal is not filed within fifteen days . . . , it becomes
final, and the Board does not have the requisite jurisdiction to consider the matter.”
Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 197-98 (Pa.
Cmwlth. 2008). The Board, however, may consider an untimely appeal under
limited circumstances. Unemployment Comp. Bd. of Review v. Hart, 348 A.2d 497,
498 (Pa. Cmwlth. 1975). The burden to establish the right to have an untimely
appeal considered is heavy, because the statutory time limit established for appeals
is mandatory. Blast Intermediate Unit No. 17 v. Unemployment Comp. Bd. of
Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). Claimant may satisfy this burden
in two ways. First, he can show fraud or a breakdown in the administrative process.
Greene v. Unemployment Comp. Bd. of Review, 157 A.3d 983, 988 (Pa. Cmwlth.)
(citing Stana v. Unemployment Comp. Bd. of Review, 791 A.2d 1269, 1271
(Pa. Cmwlth. 2002)), appeal denied, 175 A.3d 217 (Pa. 2017). “Negligence on the
part of an administrative official may be deemed the equivalent of fraud.” Stana,
791 A.2d at 1271. Second, he can show that non-negligent conduct, beyond his
control, caused the delay. Hessou, 942 A.2d at 198. Failure to file an appeal within


                                           7
fifteen days, in the absence of one of these adequate excuses, mandates dismissal of
the appeal. United States Postal Serv. v. Unemployment Comp. Bd. of Review, 620
A.2d 572, 573 (Pa. Cmwlth. 1993).
             Claimant argues that he should have the right to an untimely appeal
based upon the non-negligent conduct standard. Non-negligent conduct means
conduct that is beyond the control of the petitioner. Hessou, 942 A.2d at 198. An
untimely appeal may be allowed where the delay in filing the appeal was caused by
extraordinary circumstances involving fraud or some breakdown in the
administrative process, or non-negligent circumstances related to the petitioner, his
counselor, or a third party.      Cook v. Unemployment Comp. Bd. of Review,
671 A.2d 1130, 1131 (Pa. 1996). Simply stating that a notice was not received is
not a sufficient reason for permitting an untimely appeal. ATM Corp. of Am. v.
Unemployment Comp. Bd. of Review, 892 A.2d 859, 864 (Pa. Cmwlth. 2006). When
notice is mailed to a claimant’s last known address, absent the postal authorities
returning the notice as undeliverable, the claimant’s receipt is presumed and an
appeal   filed   after   the    expiration       of   the   appeal    period   is   barred.
Mihelic v. Unemployment        Comp.   Bd.       of   Review,   399     A.2d   825,    827
(Pa. Cmwlth. 1979). In an unemployment compensation case, the Board is the
ultimate factfinder, including credibility determinations. Russo v. Unemployment
Comp. Bd. of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). While making
credibility determinations, the Board is free to reject the testimony of any witness,
even if uncontradicted. Id.
             Here, the Department issued two determinations to Claimant on
August 17, 2009, one of which was the NOD at issue in this case.                       The
determinations included notice that the final date to appeal the determinations was


                                             8
September 1, 2009. Claimant’s appeal was filed September 22, 2017, more than
eight years after the deadline. Claimant argues that he was “completely unaware of
any overpayment or rights to an appeal” and states that he had a “non-neglecting
attitude toward handling procedures and court filings and appeals.” (Claimant’s
Br. at 15.) The Department mailed the NOD to Claimant, using the correct address,
and the post office did not return the NOD as undeliverable. Claimant’s receipt is
presumed. As the ultimate factfinder, the Board did not find credible Claimant’s
assertion that he did not receive the NOD.
             Claimant argues that non-negligent conduct caused his appeal to be
untimely. He claims he was completely unaware of the overpayment or his rights to
an appeal.    Claimant provides no explanation for the late filing except that
non-negligent conduct caused his appeal to be untimely. We interpret his argument
to be that he was not residing at his parents’ home when the Service Center mailed
the NOD there on August 17, 2009. Claimant makes this argument despite testifying
that he resided with his parents in July and August 2009. The record contains
nothing to indicate that he was not residing there. Claimant provides a lengthy
recitation of his difficulty obtaining identification and a driver’s license once he
moved to California, but these events commenced in March 2010—seven months
after the Service Center mailed the NOD. Claimant also argues that he acted with a
non-neglecting attitude toward procedures, court filings, and appeals, but we observe
that, if Claimant in fact had moved to California, he did not notify the Service Center
regarding a change of address. The Service Center mailed the NOD to the most
recent address it had for Claimant. Claimant failed to meet the heavy burden to
establish the right to have an untimely appeal considered. As such, we must agree




                                          9
with the Board that Claimant failed to establish legal circumstances justifying a late
appeal. The Board properly dismissed Claimant’s appeal as untimely.
             Accordingly, we affirm the order of the Board.




                                          P. KEVIN BROBSON, Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Guy Micciche,                       :
                     Petitioner     :
                                    :
           v.                       :   No. 304 C.D. 2018
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 28th day of March, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
