               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harrison Richards,                           :
                     Petitioner              :
                                             :   No. 327 C.D. 2019
              v.                             :
                                             :   Submitted: August 23, 2019
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: October 18, 2019

              Harrison Richards (Claimant) petitions, pro se, for review of the January
18, 2019 order of the Unemployment Compensation Board of Review (Board)
dismissing his appeal as untimely pursuant to section 501(e) of the Unemployment
Compensation Law (Law).1 Upon review, we affirm.
              Following his termination from employment with GS Solutions, Inc.
(Employer), Claimant applied for unemployment compensation (UC) benefits.
(Certified Record (C.R.) at Item Nos. 1, 9.) On July 30, 2018, the local service center
issued a notice of determination finding that Claimant voluntarily quit his job for
unknown reasons and that there was insufficient information provided to indicate

       1
       Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e). Section 501(e) of the Law requires a claimant to appeal an
unemployment compensation notice of determination within 15 days of it being mailed to him. Id.
whether Claimant had a necessitous and compelling reason for voluntarily leaving his
job. (C.R. at Item No. 9.) Therefore, the local service center denied Claimant UC
benefits under section 402(b) of the Law. The notice of determination advised
Claimant that he had 15 days, or until August 14, 2018, to file an appeal.2 Id.
However, Claimant did not file an appeal from the notice of determination until
October 29, 2018, two and a half months after the appeal deadline. (C.R. at Item No.
10.) In his petition for appeal, Claimant stated that the reason for his late appeal was
that he moved to another address and never received his mail. Id.
               A referee conducted a telephone hearing on December 5, 2018, at which
only Claimant testified. At the hearing, the referee advised Claimant that she would
take evidence on Claimant’s reasons for filing a late appeal. (C.R. at Item No. 13,
Notes of Testimony (N.T.) at 3-4.) Claimant testified that on June 30, 2018, he moved
from his residence on Annin Street in Philadelphia to a new residence on Poplar Street
in Philadelphia. (N.T. at 4.) Claimant stated that he did not complete an address
forwarding card with the United States Postal Service (USPS). Id. He testified that he
first became aware of the local service center’s notice of determination in late October
2018, when his old roommates, who still lived at his former residence, informed him
that he had received several pieces of mail from the UC benefits office. (N.T. at 5.)
Claimant stated that his roommates did not tell him about the mail until late October,
that he picked up the mail at that time, and that he filed his appeal on October 29, 2018.




       2
         Contemporaneous to the notice of determination, the local service center also issued a notice
of determination of overpayment of benefits. (C.R. at Item No. 9.) This determination also advised
Claimant that he had until August 14, 2018, to file an appeal. Id.




                                                  2
Id. Claimant acknowledged that he did not check for mail at his former residence at
any time after moving in June 2018. Id.3
              After the hearing, the referee made the following findings of fact:

              1. On July 30, 2018, the UC Service Center mailed a
                 Determination to the Claimant’s last known mailing
                 address finding the Claimant ineligible for benefits under
                 section 402(b) of the [Law].

              2. On July 30, 2018, the UC Service Center mailed a
                 Determination on Overpayment of Benefits to the
                 Claimant’s last known mailing address finding that the
                 Claimant received benefits in the aggregate amount of
                 $1641 to which he was not entitled and ruling the
                 overpayment a fault overpayment under Section 804(a) of
                 the Law.

              3. On July 30, 2018, the UC Service Center mailed a Penalty
                 Determination to the Claimant’s last known mailing
                 [address] penalizing the Claimant * [sic] weeks of
                 benefits and $246.15 under Section 801(b) and (c) of the
                 Law[, 43 P.S. §871(b), (c)].

              4. Each Determination indicated that the last date in which
                 to file an appeal from was August 14, 2018.

              5. The Claimant filed an appeal to Determination via email,
                 and the Claimant’s petition for appeal was received on
                 October 29, 2018.

              6. The Claimant was not misinformed or misled with respect
                 to his/her appeal rights.

(Referee Finding of Fact (F.F.) Nos. 1-6.)

       3
          Additionally, Claimant testified that Employer terminated his employment because it
decided to relocate its office to California and that he did not voluntarily quit. (N.T. at 6-8.)



                                               3
             The referee noted that under section 501(e) of the Law, a decision made
by a local service center is final unless it is appealed within the 15-day appeal period.
(Referee decision at 2.) The referee observed that Claimant acknowledged that he
moved from the Annin Street address in June 2018, did not file a change of address
form with USPS, and did not regularly check his mail after moving from Annin Street.
Id. The referee also noted that the claim record for the matter indicated that Claimant
did not notify the Department of Labor and Industry (Department) of his change in
address until October 29, 2018. Id. The referee determined that Claimant’s appeal was
not filed until October 29, 2018, and that there was nothing in the record to indicate
that a breakdown in the administrative process or fraud occurred, which would have
excused the late filing. Id. Accordingly, the referee dismissed the appeal pursuant to
section 501(e) of the Law. (Referee decision at 2-3.)
             Claimant appealed to the Board. The Board concluded the referee’s
decision was proper and adopted and incorporated the referee’s findings and
conclusions. The Board also made the following additional finding of fact: Claimant
“moved from his then address of record on June 30, 2018, and did not update the
Department with his new address until October 29, 2018, and did not have his mail
forwarded by the postal authorities.” (Board order at 1.) On appeal, Claimant argued
the referee’s decision was unjust because he did not voluntarily quit, but instead, was
laid off. The Board stated that if Claimant “believed that the determination was in error
it was incumbent upon him to file a timely appeal and prove that he was laid off.” Id.
It determined that Claimant “did not file a timely appeal because he did not change his
address with the Department after moving and did not have his mail forwarded.” Id.
Because section 501(e) of the Law is a jurisdictional requirement and Claimant’s
excuse did not justify his timely appeal, the Board affirmed the referee’s decision.
(Board order at 1.)



                                           4
              Claimant now petitions for review of the Board’s order,4 arguing that
Employer fraudulently stated that he voluntarily quit, even though he was, in fact,
terminated, and that Employer’s alleged fraud should supersede his untimely appeal.
Claimant acknowledges that the Department sent the notice to his former address at
Annin Street, that he moved from that address to Poplar Street on June 30, 2018, that
he did not change his address, and that he was first notified about his mail in late
October 2018. Claimant asserts that he missed the 15-day appeal period because he
moved and did not receive mail from the Department until his former roommates
notified him in October 2018. Claimant notes that he changed his address with USPS
and the Department at the time of his hearing.
              Section 501(e) of the Law provides as follows:
              Unless the claimant . . . files an appeal with the board, from
              the determination contained in any notice . . . 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). Pennsylvania courts have consistently held that the 15-day appeal
period under section 501(e) is mandatory and subject to strict application. Lin v.
Unemployment Compensation Board of Review, 735 A.2d 697, 699 (Pa. 1999);
Constantini v. Unemployment Compensation Board of Review, 173 A.3d 838, 844 (Pa.
Cmwlth. 2017); Vereb v. Unemployment Compensation Board of Review, 676 A.2d



       4
          Our review of the Board’s order “is limited to determining whether the necessary findings
of fact were supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).



                                                5
1290, 1292 (Pa. Cmwlth. 1996). If an appeal from a local service center determination
is not filed within 15 days of mailing, the determination becomes final and the Board
does not have the requisite jurisdiction to consider the matter. Lin, 735 A.2d at 699;
Vereb, 676 A.2d at 1292. “Appeal periods, even at the administrative level, are
jurisdictional and may not be extended as a matter of grace or indulgence,” and even
an “appeal filed one day after the expiration of the statutory appeal period must be
dismissed as untimely.” Dumberth v. Unemployment Compenation Board of Review,
837 A.2d 678, 681 (Pa. Cmwlth. 2003).
               Nevertheless, an untimely appeal, i.e., an appeal nunc pro tunc, may be
allowed in limited circumstances. Hessou v. Unemployment Compensation Board of
Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). The burden to establish the right to a
nunc pro tunc appeal is a “heavy one because the statutory time limit established for
appeals is mandatory.” Id. A petitioner may only satisfy this heavy burden by
demonstrating either (1) “the administrative authority engaged in fraudulent behavior
or manifestly wrongful or negligent conduct”;5 or (2) “non-negligent conduct beyond
his control caused the delay.” Id. Thus, “[f]ailure to file an appeal within [15] days,
without an adequate excuse for the late filing, mandates dismissal of the appeal.” Id.
               Here, as found by the Board and referee,6 the local service center mailed
its notices of determination to Claimant’s last known address at Annin Street on June
30, 2018, yet Claimant did not file his appeal until October 29, 2018, two and a half
months after the August 14, 2018 appeal deadline. Claimant testified that he moved

       5
         A so-called “administrative breakdown” occurs where the “administrative board or body is
negligent, acts improperly or unintentionally misleads a party.” Duhigg v. Unemployment
Compensation Board of Review, 181 A.3d 1, 4 (Pa. Cmwlth. 2017).

       6
        Where, as here, a claimant fails to challenge the Board’s factual findings, they are conclusive
on appeal. Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167, 1169 (Pa.
Cmwlth. 1997).



                                                  6
from Annin Street to Poplar Street in late June 2018, that he did not file a change of
address form with USPS, and that he did not regularly check for mail at his old
residence after moving. He also stated that he only became aware that the notices of
determination had been mailed to his former address when his former roommates told
him about the mail in late October 2018. Further, as found by the Board and reflected
by the record, Claimant did not update his address with the Department until October
29, 2018. See Board order at 1; C.R. at Item No. 1.
              In Duhigg v. Unemployment Compensation Board of Review, we observed
that an unemployment compensation claimant bears the responsibility of notifying the
Department of a change in address when it occurs. 181 A.3d 1, 5 (Pa. Cmwlth. 2017).
We also held that where the untimeliness of an appeal results from a claimant’s own
failure to notify the Department of a change in address or to take advantage of USPS’s
mail forwarding services, nunc pro tunc relief is inappropriate. Id.; see also, Johnson
v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1220 C.D. 2017,
filed February 23, 2018), slip op. at 6-7 (concluding that a claimant who did not receive
a determination because she was not living at home and not collecting her mail did not
have good cause for filing a late appeal because “it was [the claimant’s] responsibility
to collect her mail in a timely manner, even if she was living elsewhere”). 7
              Likewise, here, the untimeliness of Claimant’s appeal resulted from his
failure to provide his new address to the Department, file a change of address form with
USPS, and check for mail at his previous residence. Because the record is devoid of
any evidence that the Department engaged in “fraudulent behavior or manifestly
wrongful or negligent conduct” or that “non-negligent conduct” beyond Claimant’s


       7
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).




                                                 7
control caused the untimely appeal, a nunc pro tunc appeal is unwarranted. Hessou,
942 A.2d at 198.8 While Claimant argues his late appeal should be excused due to
Employer’s allegedly fraudulent conduct, because section 501(e) is a jurisdictional
requirement and Claimant failed to carry the “heavy burden,” id., of establishing a right
to an untimely appeal, we are constrained to affirm the order of the Board dismissing
Claimant’s appeal.
               Accordingly, because Claimant’s appeal from the notice of determination
was untimely, the Board’s order is affirmed.




                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge




       8
          In his brief, Claimant also argues that after he changed his address with the Department, the
Department still sent him mail to his former address, which, according to him, negates the fact that
he did not receive his mail after moving, because the Department could have sent him mail to the
incorrect address at any point even if he had immediately changed his address after moving.
However, because our review of the record reveals that Claimant failed to raise this issue in his appeal
to the Board, the issue is waived. See Lewis v. Unemployment Compensation Board of Review, 42
A.3d 375, 379 n.8 (Pa. Cmwlth. 2012); Reading Nursing Center v. Unemployment Compensation
Board of Review, 663 A.2d 270, 275 (Pa. Cmwlth. 1995). Nevertheless, even if Claimant had not
waived this issue, we would conclude it is meritless. The record reflects that after Claimant provided
his new address to the Department on October 29, 2018, he listed his old address on his untimely
petition for appeal from the notice of determination. (C.R. at Item Nos. 1, 10.) As argued by the
Board, Claimant’s error in providing his old address on the appeal form resulted in the notice of
hearing being sent to his old address. (C.R. at Item No. 12.) Therefore, any correspondence being
sent to Claimant’s old address after he changed his address resulted from Claimant’s mistake, rather
than any sort of administrative breakdown by the Department. Further, the fact that the Department
sent correspondence to Claimant’s old address, after he submitted his petition for appeal, does not
alter the fact that Claimant’s untimely appeal from the notice of determination occurred due to
Claimant’s failure to update his address with the Department and/or submit a change of address form
with USPS until more than two months after his appeal was due.



                                                   8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harrison Richards,                    :
                     Petitioner       :
                                      :    No. 327 C.D. 2019
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


                                   ORDER


            AND NOW, this 18th day of October, 2019, the January 18, 2019 order
of the Unemployment Compensation Board of Review is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
