            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith D. Spicknell,                           :
                   Petitioner                 :
                                              :
       v.                                     : No. 1707 C.D. 2018
                                              : SUBMITTED: May 17, 2019
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                      FILED: July 23, 2019

       Keith D. Spicknell (Claimant) petitions for review, pro se, of the November 2,
2018 Order of the Unemployment Compensation Board of Review (Board), which
dismissed Claimant’s appeal as untimely under Section 502 of the Unemployment
Compensation Law (Law).1 The Board concluded that Claimant failed to establish that
his late filing of the appeal was the result of fraud, an administrative breakdown, or
non-negligent circumstances. For the reasons that follow, we affirm the Board’s Order.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Section 502 of the Law provides in relevant part:

       The parties and their attorneys shall be duly notified of the time and place of a referee’s
       hearing and of the referee’s decision, and the reasons therefor, which shall be deemed
       the final decision of the [B]oard, unless an appeal is filed therefrom, within fifteen
       days after the date of such decision . . . .

43 P.S. § 822 (emphasis added).
                                          Background
       On August 7, 2018, the Referee issued a decision unfavorable to Claimant. Bd.’s
Finding of Fact (F.F.) No. 1.2 Claimant received the Referee’s decision before the 15-
day appeal deadline. Id. No. 2. Claimant was required to file his appeal with the Board
by August 22, 2018. Id. No. 3. Claimant filed his appeal via e-mail on August 23,
2018. Id. No. 4.
       Claimant hired an attorney to file his appeal, but the attorney did not file the
appeal on time for unknown reasons. Id. No. 5. Claimant was neither misinformed
nor misled by the UC authorities regarding his right to appeal. Id. No. 6.
       By letter dated August 29, 2018, the Board notified Claimant that his appeal was
untimely. Record (R.) Item No. 13. On September 17, 2018, Claimant submitted a
written request for a hearing on the issue of timeliness. R. Item No. 14. On September
21, 2018, the Board remanded the matter to the Referee “to schedule a hearing for the
purpose of providing [Claimant] with an opportunity to testify regarding” the
timeliness of the appeal. R. Item No. 16.


       2
          Claimant was on a medical leave of absence from his employment with Apple Inc.
(Employer). Employer asked Claimant to participate in a video chat to discuss possible medical
accommodations for Claimant and told him he could e-mail his responses if he did not feel
comfortable speaking on video. Ref.’s Order, 8/7/18, at 2. Claimant never responded to Employer’s
request for a video chat, instead sending Employer a “farewell e[-]mail.” Id.

        In the August 7, 2018 Order, the Referee determined that Claimant was ineligible for
unemployment compensation (UC) benefits under Sections 402(b) and 401(d)(1) of the Law, 43 P.S.
§§ 802(b) and 801(d)(1), and assessed a fault overpayment of $11,712 under Section 804(a) of the
Law, 43 P.S. § 824(a). Ref.’s Order, 8/7/18, at 4. The Referee found that Claimant voluntarily quit
without necessitous and compelling cause and did not make a reasonable attempt to preserve his
employment by failing to respond to, or comply with, Employer’s request for a video chat. Id. at 2.
Regarding the fault overpayment, the Referee found that Claimant notified the Department of Labor
and Industry that his separation was due to lack of work and, thus, he misrepresented information in
order to receive benefits to which he was not entitled. Id. at 3.



                                                 2
       The Referee held the remand hearing on October 12, 2018. At the hearing,
Claimant, appearing pro se, testified that he sent a text message to his attorney on the
morning of August 22, 2018 inquiring about the appeal, and his attorney replied that
he would file the appeal that day. Notes of Testimony (N.T.), 10/12/18, at 4.3 Claimant
offered into evidence a printout of this text-message exchange. Id., Claimant’s Ex. 1.
Claimant presented no further testimony or evidence regarding the circumstances
surrounding the filing of the appeal.4
       After receiving and reviewing the hearing transcript, the Board issued an Order
dismissing Claimant’s appeal as untimely. The Board concluded:

       [T]here is a lack of evidence in the record as to the reason for the
       attorney’s delay [in filing the appeal]. Without a reason for the delay,
       [C]laimant has failed to prove that he is entitled to have his appeal treated
       as if timely filed.

       . . . The Board has no jurisdiction to accept an appeal filed after the
       expiration of the statutory appeal period absent limited exceptions not
       relevant herein. The filing of [Claimant’s] late appeal was not caused by
       fraud or its equivalent by the administrative authorities, a breakdown in
       the appellate system, or by non-negligent conduct. . . .

Bd.’s Order, 11/2/18, at 2. Claimant now appeals from that decision.5


       3
          Claimant’s text message to his attorney stated, in pertinent part, “I’m following up on my
e[-]mail from 8/10[/18], to which I have not yet received a response. I’m wondering about the status
of my appeal, and how [w]e might strategize to better argue my position against overpayment of [UC]
benefits.” The attorney replied, “I’ll file it today.” N.T., 10/12/18, Claimant’s Ex. 1.

       4
         After the admission of the text-message exchange, the Referee asked Claimant if there was
“anything else [he] wanted to add that [he had] not already provided,” to which Claimant replied,
“That’s everything.” N.T., 10/12/18, at 4. Claimant did not call his former attorney as a witness.

       5
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the factual findings are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.


                                                 3
                                        Analysis
      Section 502 of the Law provides that an aggrieved party has 15 days to appeal a
referee’s decision to the Board. 43 P.S. § 822; see 34 Pa. Code § 101.82(a). If the
aggrieved party does not file an appeal within 15 days of the mailing date of the
referee’s decision, the decision becomes final, and the Board lacks jurisdiction to
consider the merits of the appeal. Hessou v. Unemployment Comp. Bd. of Review, 942
A.2d 194, 197-98 (Pa. Cmwlth. 2008). An appeal filed even one day after the 15-day
appeal deadline is untimely. Id. at 198; see DiBello v. Unemployment Comp. Bd. of
Review, 197 A.3d 819, 822 (Pa. Cmwlth. 2018).
      The Board may consider an untimely appeal only in extraordinary
circumstances. Roman-Hutchinson v. Unemployment Comp. Bd. of Review, 972 A.2d
1286, 1288 n.1 (Pa. Cmwlth. 2009). An appeal nunc pro tunc may be allowed where
the delay in filing the appeal was caused by fraud, a breakdown in the administrative
process, or non-negligent circumstances related to the petitioner, his attorney, or a third
party. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996).
“[T]he [petitioner] bears a heavy burden to justify an untimely appeal.” Roman-
Hutchinson, 972 A.2d at 1288 n.1.
      Here, Claimant’s attorney filed the appeal via e-mail one day after the appeal
deadline. Bd.’s F.F. Nos. 3, 4; see N.T., 10/12/18, Claimant’s Ex. 1. Claimant does
not dispute that his appeal was untimely. Rather, Claimant maintains that he sent a text
message to his attorney on the morning of August 22, 2018, and the attorney replied
that he would file the appeal that day. However, Claimant offered no evidence
demonstrating    that   fraud,   an   administrative    breakdown,     or   non-negligent
circumstances caused his attorney to file a late appeal. In fact, Claimant offered no



                                            4
reason whatsoever for the delay. Claimant merely contends that “to the best of [his]
knowledge . . . [his] attorney filed the appeal by the deadline of August 22, 2018.”
Claimant’s Br. at 7.
      Claimant also asserts, without any citation to legal authority, that a party filing
an appeal by e-mail “cannot be held responsible for any technical or electronic issues
which may potentially cause a delay.” Claimant’s Br. at 7. This claim is belied by the
Board’s own regulation, which provides: “A party filing an appeal by electronic
transmission is responsible for using the proper format and for delay, disruption,
interruption of electronic signals and readability of the document and accepts the risk
that the appeal may not be properly or timely filed.” 34 Pa. Code § 101.82(b)(4)
(emphasis added). Significantly, the Referee’s decision mailed to Claimant included
this warning regarding e-mailed appeals, stating: “A party filing an appeal via the
internet or electronic mail is responsible for using the proper format and for delay,
disruption or interruption of electronic signals and readability of the document and
accepts the risk that the appeal may not be properly or timely filed.” Ref.’s Order,
8/7/18, at 5 (emphasis added).
      Finally, Claimant attempts to challenge “the veracity of the date of [the appeal]
email’s sending.” Claimant’s Br. at 7. In Chapman v. Unemployment Compensation
Board of Review, 163 A.3d 1152, 1157 (Pa. Cmwlth. 2017), the claimant argued that
the Board erred in failing to consider the possibility that its own time of receipt of the
e-mailed appeal, as recorded in its computer system, could have been inaccurate. We
rejected this claim, noting: “Aside from the fact that this argument is purely
speculative, it ignores that 34 Pa. Code § 101.82(b)(4) specifically provides that the
date an appeal is received is the date it is logged, and that [the c]laimant assumed the
risk that his electronically submitted appeal would not be properly time-stamped.” Id.



                                            5
(emphasis added); see also Roman-Hutchinson, 972 A.2d at 1289 (stating that “the
[Board’s] regulation clearly contemplates malfunction in the e[-]mail delivery system
and places the resulting risk of an untimely filing on the [c]laimant”).
       Here, as in Chapman, we reject Claimant’s contention that he cannot be held
responsible for a potential technical issue that may have caused the appeal to be
received late. Such argument is purely speculative. Moreover, Claimant does not
dispute the authenticity of the e-mailed Petition for Appeal that was entered into the
record, which indicates that the appeal was filed at 8:26 a.m. on August 23, 2018. See
N.T., 10/12/18, at 3; R. Item No. 12.
                                            Conclusion
       We conclude that Claimant failed to satisfy his burden of proving extraordinary
circumstances justifying a nunc pro tunc appeal.6 Accordingly, we affirm the Board’s
Order.


                                              __________________________________
                                              ELLEN CEISLER, Judge




       6
          Claimant devotes the majority of his Petition for Review and his appellate brief to
challenging the underlying adjudication of his claim for UC benefits. However, we cannot consider
these claims, because, like the Board, this Court lacks jurisdiction to review the merits of an untimely
appeal.


                                                   6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith D. Spicknell,               :
                   Petitioner     :
                                  :
      v.                          : No. 1707 C.D. 2018
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER


      AND NOW, this 23rd day of July, 2019, the Order of the Unemployment
Compensation Board of Review, dated November 2, 2018, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
