                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica H. Davis,                              :
                           Petitioner          :
                                               :
          v.                                   : No. 1932 C.D. 2017
                                               : SUBMITTED: June 15, 2018
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :

BEFORE:             HONORABLE P. KEVIN BROBSON, Judge
                    HONORABLE MICHAEL H. WOJCIK, Judge
                    HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                      FILED: July 25, 2018

          Jessica Davis (Claimant) petitions pro se for review of the November 17, 2017
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.
                                           Background
          Claimant was employed by Charlotte Russe (Employer) from May 10, 2010
until August 25, 2010. Notes of Testimony (N.T.), 9/27/17, Ex. No. 7. On
December 20, 2010, Claimant filed for unemployment compensation (UC) benefits.
Id. Claimant was initially granted benefits, but was subsequently deemed ineligible
by the Allentown UC Service Center (Service Center) under Section 402(b)2 of the


          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).
          2
              43 P.S. § 802(b).
Law because Claimant voluntarily left work without a “necessitous and compelling
reason.” Id., Ex. No. 4. The Service Center further found Claimant ineligible for
benefits because her wages did not meet the income threshold set forth in Section
401(f)3 of the Law. Id. A notice of determination was mailed to Claimant on
October 27, 2011. Id. The last date to appeal the determination was November 14,
2011. Id. Claimant received a second determination, also mailed on October 27,
2011, which indicated a fault overpayment in the amount of $3,952.00 was
established pursuant to Section 804(a)4 of the Law. Id., Ex. No. 5. The last date to
appeal this second determination was also November 14, 2011.                              Id.    Both
determinations were mailed to Claimant at 114 South 6th Street, Apartment B,
Allentown, Pennsylvania 18101 (Allentown address). Id., Ex. Nos. 4-5. Neither
determination was returned as undeliverable. Id., Ex. No. 7.
       Approximately 6 years later, on July 3, 2017, following receipt of a
subsequent notice from the Department of Labor and Industry (Department) relating
to the fault overpayment, Claimant spoke on the phone with a Department
representative.5 N.T., 9/27/17, at 7. During that conversation, Claimant was made
aware of the option to file an appeal. Id. On September 5, 2017, Claimant filed an
appeal from the October 27, 2011 determinations, alleging she never received them.


       3
           43 P.S. § 801(f).

       4
          43 P.S. § 874(a). Section 804(a) of the Law provides that a claimant, who by reason of
his or her fault receives UC benefits to which he or she is not entitled, shall be liable to repay those
amounts.

       5
          The Claim Record indicates that a notice mailed to Claimant in November 2015 was
returned as undeliverable. N.T., 9/27/17, Ex. No. 7. It is not clear from the record whether the
notice which prompted Claimant to contact the Department on July 3, 2017 was mailed to the
Allentown address or elsewhere. Claimant’s address on file with the Department was changed on
July 3, 2017. Id.

                                                   2
N.T., 9/27/17, Ex. Service Center No. 2. The Referee conducted a hearing on
September 27, 2017. Claimant participated by telephone.6 Testimony was limited
to the timeliness of Claimant’s appeal.
       At the hearing, Claimant denied receiving the October 27, 2011
determinations but acknowledged that the Allentown address on the determinations
was correct and that it was the same address she used when completing her initial
application for benefits. N.T., 9/27/17, at 6. Claimant testified she moved from the
Allentown address at the end of September 2013. Id. While Claimant asserted her
landlord would not allow her to receive mail at the Allentown address, she admitted
that “[s]ome stuff would come through . . . .” Id. Claimant acknowledged having
received documents from the Department of Labor and Industry (Department) which
related to the initial grant of benefits. Id. Claimant testified she was living “between
there and college” at that time; however, Claimant’s mother also lived at the
Allentown address and she “could have” obtained Claimant’s mail for her. Id. at 8.
       The Referee issued a decision in which she found that the determinations were
sent to Claimant’s last known post office address and not returned by postal
authorities as undeliverable.       Certified Record (C.R.), Item No. 8, Referee’s
Decision, Findings of Fact (F.F.) Nos. 3-4. The Referee further found that the last
date upon which a valid appeal could be filed was November 14, 2011, but Claimant
did not file an appeal until September 5, 2017. Id., F.F. Nos. 6-7. Additionally, the
Referee found that Claimant was not misinformed or misled regarding the right of
or need to appeal, and Claimant’s late appeal was not caused by fraud or its
equivalent by administrative authorities, a breakdown in the system, or non-



       6
         A representative of Employer, Laurie Esarco, was present for the hearing; however, she
gave no testimony and declined to cross-examine Claimant.
                                              3
negligent conduct.       Id., F.F. Nos. 8-9.        Consequently, the Referee dismissed
Claimant’s appeal. Id. at 3.
       Claimant appealed to the Board, asserting she filed her appeal once she
became “aware of this situation.” C.R., Item No. 9, Claimant’s Petition for Appeal.
She further argued the merits of her underlying appeal, maintaining she did not quit
her employment. The Board issued an order in which it adopted and incorporated
the findings and conclusions of the Referee. C.R., Item No. 11, Board’s Order. The
Board noted that, even if it accepted Claimant’s testimony that the landlord for the
Allentown address would not permit Claimant to receive her mail there, Claimant
was aware of the overpayment determination on July 3, 2017 but waited more than
two months to file her appeal. Accordingly, the Board affirmed the dismissal of
Claimant’s appeal. This appeal followed.
                                             Issue
       On appeal,7 the sole issue before this Court is whether the Board erred in
dismissing Claimant’s appeal as untimely.
                                          Discussion
       Section 501(e) of the Law requires a claimant to file an appeal from a
Department determination within 15 days of the date of mailing to the claimant’s
last known postal address. 43 P.S. § 821(e). The statutory time limit for filing an
appeal is mandatory in the absence of fraud or manifestly wrongful or negligent
conduct by an agency. Das v. Unemployment Comp. Bd. of Review, 399 A.2d 816
(Pa. Cmwlth. 1979).         Further, a timely appeal is a jurisdictional prerequisite.
DiIenno v. Unemployment Comp. Bd. of Review, 429 A.2d 1288, 1289 (Pa. Cmwlth.

       7
        Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the necessary factual findings are supported
by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 n.2
(Pa. Cmwlth. 2014).
                                                4
1981). If the claimant does not file an appeal within 15 days, “the determination
becomes final, and the [Department] does not have the requisite jurisdiction to
consider the matter.” Vereb v. Unemployment Comp. Bd. of Review, 676 A.2d 1290,
1292 (Pa. Cmwlth. 1996) (en banc). An appeal nunc pro tunc 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, her counselor or a third party. Cook v.
Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996). The
petitioner “must also establish that (1) the appeal was filed within a short time after
learning of and having an opportunity to address the untimeliness; (2) the elapsed
time period was of very short duration; and (3) the [respondent] is not prejudiced by
the delay.” Sofronski v. Civil Service Comm’n v. Phila., 695 A.2d 921, 924 (Pa.
Cmwlth. 1997).
      Claimant does not dispute her appeal was not filed within 15 days of the
October 27, 2011 mail date, nor has she alleged the existence of fraud or a
breakdown in the administrative process. Claimant has not challenged whether the
Department mailed the determinations to the Allentown address or claimed the
determinations were returned as undeliverable. Rather, she alleges the landlord for
the Allentown address would not permit Claimant to receive mail at that address
because Claimant was not on the lease. Claimant also asserts she was away at
college and not physically living at the Allentown address to which the Department
mailed its determinations. Upon graduating college, Claimant moved to Germany.
Consequently, Claimant states she would not have known if mail was left for her at
the Allentown address.
      The Board responds that, if Claimant was unable to receive mail at the address
she provided to the Department, Claimant was responsible for providing a different

                                          5
address. Further, the Board maintains that, even if it could be presumed Claimant
did not receive the determinations, Claimant was aware of the overpayment
determination on July 3, 2017 when she spoke to a Department representative on the
phone. Claimant filed her appeal more than two months after that date, which was
not “within a short time” after learning of the untimeliness of her appeal. Sofronski,
695 A.2d at 924. Therefore, the Board argues, Claimant has not established a right
to nunc pro tunc relief.
       We agree that Claimant’s untimely appeal was caused by her own conduct.
When testifying at the September 27, 2017 hearing, Claimant stated that the
Allentown address she used when applying for benefits was correct. Claimant did
not move from that address until September 2013. Whether or not Claimant’s
landlord prevented her mail from being collected at that address, it is clear from
Claimant’s testimony she believed that to be the case. Nevertheless, Claimant failed
to provide an alternative address to the Department. If a more appropriate address
for the receipt of her mail existed, Claimant was responsible for providing one. The
record fails to reveal any fraudulent or manifestly wrongful or negligent conduct on
the part of the Department, nor does it appear Claimant’s untimely appeal was
caused by a breakdown in the administrative process. As Claimant’s untimely
appeal was not caused by non-negligent circumstances, we need not address whether
her appeal was filed within a short time after she learned of the need to appeal.8

       8
         We must express concern regarding the procedural process utilized by the Department in
matters that involve a revocation of benefits. In the present matter, Claimant was granted benefits
for claim weeks ending January 1, 2011 through June 25, 2011. C.R., Item No. 1, Claim Record,
at 1. On July 10, 2011, Claimant received payment for the claim week ending June 25, 2011. Id.
Over three months later, on October 27, 2011, the Department mailed Claimant the overpayment
determination. Id., Item No. 2. While three months is not an extraordinarily lengthy period of
time, Claimant would have had no reason to expect further communication from the Department,
as her receipt of benefits had terminated. A fairer process would involve the initiation of

                                                6
                                          Conclusion
       As we have concluded Claimant’s untimely appeal was caused by her own
negligent conduct, and given the lack of evidence of fraud, wrongful or negligent
conduct, or a breakdown in the administrative process, we perceive no error in the
Board’s dismissal of Claimant’s appeal as untimely. Accordingly, the order of the
Board is affirmed.

                                              __________________________________
                                              ELLEN CEISLER, Judge




revocation proceedings, through which the Department would ensure a claimant has received
actual notice of the existence of an issue regarding a grant of benefits, prior to the issuance of a
determination finding an overpayment has been made.

                                                 7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jessica H. Davis,                  :
                    Petitioner     :
                                   :
      v.                           : No. 1932 C.D. 2017
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                 ORDER

      AND NOW, this 25th day of July, 2018, the order of the Unemployment
Compensation Board of Review, dated November 17, 2017, is affirmed.



                                   ________________________________
                                   ELLEN CEISLER, Judge
