          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tina L. Wood,                              :
                    Petitioner             :
                                           :
             v.                            :   No. 2123 C.D. 2015
                                           :   Submitted: March 24, 2016
Unemployment Compensation                  :
Board of Review,                           :
                 Respondent                :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: May 18, 2016

             Tina Wood (Claimant) petitions for review of an adjudication of the
Unemployment Compensation Board of Review (Board) that dismissed her appeal
as untimely. The Board held that Claimant’s untimely appeal could not be allowed
nunc pro tunc. Concluding that the Board erred, we reverse and remand.
             Claimant was last employed by Sterling Jewelers (Employer) on
November 5, 2013. Between November 16, 2013, and May 24, 2014, Claimant
received a total of $14,274 in unemployment benefits. On May 8, 2015, the
Harrisburg Overflow Center (Department) issued a Notice of Determination
finding Claimant ineligible for benefits under Section 402(b) of the Unemployment
Compensation Law1 because she had voluntarily quit without a necessitous and




1
 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Section 402(b) states, in relevant part, that
(Footnote continued on next page…)
compelling reason. In a second Notice of Determination, also dated May 8, 2015,
Claimant was charged with a fault overpayment, penalty weeks, and an additional
15% penalty under Section 8012 of the Law. Each notice informed Claimant that


(continued…)
        [a]n employe shall be ineligible for compensation for any week … [i]n which his
        unemployment is due to voluntarily leaving work without cause of a necessitous
        and compelling nature[.]
43 P.S. §802(b).
2
 Section 801 of the Law states, in relevant part:
        (b) Whoever makes a false statement knowing it to be false, or knowingly fails
        to disclose a material fact to obtain or increase any compensation or other
        payment under this act or under an employment security law of any other state or
        of the Federal Government or of a foreign government, may be disqualified in
        addition to such week or weeks of improper payments for a penalty period of two
        weeks and for not more than one additional week for each such week of improper
        payment: Provided, That no additional weeks of disqualification shall be imposed
        under this section if prosecution proceedings have been instituted against the
        claimant because of such misrepresentation or non-disclosure. The departmental
        determination imposing penalty weeks under the provisions of this subsection
        shall be subject to appeal in the manner provided in this act for appeals from
        determinations of compensation. The penalty weeks herein provided for shall be
        imposed against any weeks with respect to which the claimant would otherwise be
        eligible for compensation, under the provisions of this act, which begin within the
        four year period following the end of the benefit year with respect to which the
        improper payment or payments occurred.
        (c) Whoever makes a false statement knowing it to be false, or knowingly fails
        to disclose a material fact to obtain or increase compensation or other payment
        under this act or under an employment security law of the Federal Government
        and as a result receives compensation to which he is not entitled shall be liable to
        pay to the Unemployment Compensation Fund a sum equal to fifteen per centum
        (15%) of the amount of the compensation. The sum shall be collectible in the
        manner provided in section 308.1 or 309 of this act for the collection of past due
        contributions and by any other means available under Federal or State law. No
        administrative or legal proceeding for the collection of the sum may be instituted
        after the expiration of ten years following the end of the benefit year with respect
        to which the sum was paid.
43 P.S. §871.


                                                 2
her last day to appeal was May 26, 2015. Claimant filed her appeal on August 8,
2015.   The matter proceeded to a Referee on the issue of the timeliness of
Claimant’s appeal.
             Claimant testified that she did not receive the notices because she was
not living at the address in the Department’s records on May 8, 2015, i.e., 848
Lampeter Road, Lancaster, Pennsylvania.            She had moved to 1520 Lincoln
Highway East, also in Lancaster, approximately one year before the notices were
sent. Nevertheless, Claimant continued to own the 848 Lampeter Road property,
which she rented to her son. He was living at this house when the Department sent
its May 2015 notices to Claimant. The Referee asked Claimant what her son did
with any mail that arrived for her. She replied:

             I, I have no idea. Some, some mail we got, some mail we
             didn’t. I have no idea what, what I -- obviously I can’t tell you
             what I didn’t receive. Any bills, you know, I know what my
             mortgage payment is. I don’t look for mortgage payments, I go
             straight to the bank and pay the mortgage payment, pay things
             like that. So I, I wasn’t looking for mail. I wouldn’t have been
             looking for something from Unemployment. There was no
             need to be waiting for something from Unemployment.

Notes of Testimony, 8/28/2015, at 4-5; Reproduced Record at 29a-30a (R.R. ___).
             The Referee asked Claimant for documentation that she had moved to
1520 Lincoln Highway East. Claimant and the Referee discussed what sort of
evidence Claimant could offer:

             [Claimant]: I don’t think -- I don’t have anything. I didn’t have
             bills there. I mean I don’t have bills in my name there. I didn’t
             make bills in my name there.

             [Referee]: Well you must have something I mean with [your
             second address].

                                          3
             [Claimant]: Well I didn’t transfer my driver’s license, there was
             no need to do that. Like I didn’t -- I mean [my husband] can
             testify that I lived there, or people know I was there. I can get
             affidavits signed that I was …

             [Referee]: Well an affidavit wouldn’t do me much good.

Id. at 5; R.R. 30a.
             The Referee then questioned Claimant regarding why she could not
produce utility bills or a driver’s license verifying her new residence, prompting
the following exchange:

             [Claimant]: I purposely was trying not to -- trying not to like let
             people know that I was there, honestly.

             [Referee]: And what was, what was the reason for that?

             [Claimant]: For personal reasons.      I didn’t want anyone to
             really know where I was.

             [Referee]: Okay.

             [Claimant]: This, separation of employment from going from
             the income that I had because of this injury put me in a very,
             very, very bad financial situation, and I had repo people
             knocking on our doors at 2:00 a.m. looking for a camper and a
             car, and that’s why I left my home. I was sleeping in a car for a
             little while because of people looking for me. And it was only,
             it was only because of that. I mean I’m literally living below
             the poverty line, and I could lose my job because of this today.

Id.
             On September 1, 2015, the Referee dismissed Claimant’s appeal as
untimely. Claimant appealed to the Board, which affirmed the Referee. The
Board explained:

             [C]laimant was deliberately trying to avoid being contacted
             because of creditors. She did not make arrangements to receive
                                          4
              mail in a timely fashion. Even though [C]laimant was not
              receiving benefits at the time of the determination and did not
              expect mail from the Department, her late appeal was not due to
              non-negligent conduct.

Board Adjudication at 1. Claimant now petitions for this Court’s review.
              On appeal,3 Claimant raises three issues. First, Claimant argues that
the Board’s adjudication is not supported by substantial evidence.                   Second,
Claimant asserts that the Board erred by not allowing her to appeal nunc pro tunc.
Third, Claimant contends that the Board did not give Claimant a fair opportunity to
prove that she was living at a new address at the time the Department had mailed
its notices. Claimant asks this Court to reverse the Board’s decision and to remand
the matter so that the Referee can consider the merits of Claimant’s appeal. The
Board counters that Claimant cannot take steps to avoid mail and then claim she
was not negligent in failing to receive the Department’s notices.
              Claimant first argues that the Board’s adjudication is not supported by
substantial evidence. Specifically, Claimant challenges the Referee’s findings of
fact numbered 2, 3, 5, and 6, which the Board adopted:

              2. Copies of these determinations were mailed to the claimant’s
              last known post office address on the above date.

              3. The Notices of Determination were not returned by the postal
              authorities as being undeliverable.

                                                  ***



3
  Our review is to determine whether an error of law was committed, the findings of fact are
supported by substantial evidence or Claimant’s constitutional rights were violated. Miller v.
Unemployment Compensation Board of Review, 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).


                                              5
             5. The claimant did not file an appeal on or before May 26,
             2015, but waited until August 8, 2015.

             6. The claimant was not misinformed nor in any way misled
             regarding the right of appeal or the need to appeal.

Referee’s Decision at 1-2, Findings of Fact No. 2, 3, 5, and 6.
             In unemployment appeals, the Board’s findings of fact are conclusive
if the record, taken as a whole, contains substantial evidence to support them.
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa.
1977). “Substantial evidence” is all “relevant evidence which a reasonable mind
might accept as adequate to support a conclusion.” Philadelphia Gas Works v.
Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth.
1995).
             Claimant’s challenges to Findings of Fact No. 2, 5 and 6 lack merit.
In regards to Finding of Fact No. 2, the Department’s files contained copies of the
notices sent to Claimant that show when and to what address the notices were
mailed. Regarding Finding of Fact No. 5, Claimant argues that the Referee’s use
of the word “waited” suggests that Claimant consciously chose to file a late appeal.
We disagree. The import of this finding is, simply, that Claimant did not file her
appeal before August 8, 2015, which is uncontroverted. In Finding of Fact No. 6,
the Referee found there is no evidence that the Department misled or misinformed
Claimant about her appeal.       This “finding” is not supported by substantial
evidence.   In actuality, this finding simply states that Claimant did not offer
evidence that she was misled. We reject Claimant’s challenges to Findings of Fact
No. 2, 5 and 6.



                                          6
               Turning to Finding of Fact No. 3, Claimant is correct that there is no
evidence to support the Board’s finding that the two Notices of Determination
mailed May 8, 2015, were actually delivered to her former address at 848
Lampeter Road. The Department, which did not appear at the hearing, offered no
evidence of delivery. However, Claimant’s entitlement to nunc pro tunc relief
does not require a finding of fact that the notices were returned as undeliverable.
               We consider, next, Claimant’s contention that the Board erred by not
allowing her to appeal nunc pro tunc. Section 501(e) of the Law requires that an
appeal from a notice of determination be filed within 15 days from the date the
notice was delivered to the claimant. 43 P.S. §821(e).4 Nevertheless, appeals can
be accepted after the 15-day period under certain narrow circumstances. Hessou v.
Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth.
2008). A claimant may appeal nunc pro tunc if the late filing was caused by
extraordinary circumstances involving fraud, a breakdown in the administrative
process, or non-negligent conduct of the claimant.                   Cook v. Unemployment
Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996).




4
 Section 501(e) of the Law provides:
        (e) Unless the claimant or last employer or base-year employer of the claimant
        files an appeal with the board, from the determination contained in any notice
        required to be furnished by the department under section five hundred and one (a),
        (c) and (d), within fifteen calendar days after such notice was delivered to him
        personally, or was mailed to his last known post office address, and applies for a
        hearing, such determination of the department, with respect to the particular facts
        set forth in such notice, shall be final and compensation shall be paid or denied in
        accordance therewith.
43 P.S. §821(e).


                                                 7
             According to the Board, Claimant did not publicize her new address in
order to avoid creditors. Board Brief at 4. The Board asserts that Claimant’s
purposeful avoidance of mail is negligent conduct that makes her ineligible for a
nunc pro tunc appeal.
             Claimant contends that nothing about her move was “negligent.” She
moved more than a year after her unemployment benefits had ended and had no
obligation to continue living at the place where she lived at a time she was
collecting unemployment benefits. She had no obligation, or reason, to inform the
Department of her move more than one year after her benefits stopped. Further,
Claimant testified that the only reason she moved was to avoid personal
confrontations at 2:00 a.m. with individuals trying to repossess her personalty, not
to avoid the Department or creditors.
             The only evidence is Claimant’s testimony, upon which the Referee
based his findings. That testimony established that Claimant had an unstable
housing situation, but this is not negligent conduct. To the contrary, it is non-
negligent conduct.      Further, a claimant has no duty to keep the Department
apprised of her moves.
             We also reject the Board’s argument that Claimant was purposely
avoiding mail and, thus, negligent. Claimant did not routinely retrieve her mail
from her son because she did not expect any important mail to arrive at that
address. Contrary to the Board’s claim that she was trying to avoid creditors,
Claimant testified that she paid her bills in person at the bank. She did not need
monthly invoices to do so. The Board’s argument that Claimant was purposefully
avoiding creditors is not supported by the record.


                                         8
               For these reasons, we reverse the Board’s order and remand this
matter with instructions to remand to a Referee for a hearing on the merits of
Claimant’s appeal.5

                                          _____________________________________
                                          MARY HANNAH LEAVITT, President Judge

Judge Covey dissents.




5
  Claimant also argues that the Board erred by requiring Claimant to produce documentary
evidence that she moved to a new address. She is correct that testimonial evidence is not inferior
to documentary evidence. The Referee should not have disallowed her husband’s testimony.
Given our disposition of Claimant’s second issue, however, we need not consider this issue.


                                                9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tina L. Wood,                               :
                  Petitioner                :
                                            :
            v.                              : No. 2123 C.D. 2015
                                            :
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


                                    ORDER

            AND NOW, this 18th day of May, 2016, the order of the
Unemployment Compensation Board of Review dated October 7, 2015, in the
above-captioned matter is REVERSED and this matter is REMANDED for further
proceedings in accordance with the attached opinion.
            Jurisdiction is relinquished.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
