       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul H. Corson, IV,                     :
                        Petitioner      :
                                        :
            v.                          :   No. 818 C.D. 2017
                                        :   Submitted: March 9, 2018
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: April 17, 2018

            Paul H. Corson, IV (Claimant) petitions for review from an order of the
Unemployment Compensation Board of Review (Board) that upheld a referee’s
decision dismissing as untimely Claimant’s appeals from three notices of
determination issued by an unemployment compensation (UC) service center.
Claimant argues the Board erred in finding his appeals untimely where it credited
his testimony that he attempted to file his appeals by email before the appeal
deadline. Upon review, we affirm.


                                 I. Background
            The Board made the following findings. On December 20, 2016, the
Erie UC Service Center (service center) sent three notices of determination to
Claimant’s last known mailing address. The first notice found Claimant ineligible
for UC benefits under Section 402(e) of the Pennsylvania UC Law (UC Law)
(relating to willful misconduct).1 The second notice found Claimant received an
overpayment of UC benefits, and it assessed a fault overpayment. See Section
804(a) of the UC Law, 43 P.S. §874(a). The third notice was a Notice of Penalty
Weeks and 15% Penalty Determination that assessed penalties against Claimant.
See Sections 801(b), (c) of the UC Law, 43 P.S. §871(a), (b). The three notices
contained appeal instructions, which stated that the last day to file a timely appeal
was January 4, 2017.


                Claimant received the notices and was or should have been aware that
the last day to file a timely appeal was January 4, 2017. Claimant did not file an
appeal on or before January 4, 2017. Instead, he filed an appeal over the internet,
which the service center received on February 22, 2017. A hearing ensued before a
referee.


                At the hearing, Claimant, representing himself, and a service center
representative testified. Claimant’s former employer did not appear.


                After the hearing, the referee issued a decision determining that
Claimant’s appeal of the three notices of determination was untimely. In so doing,
the referee explained, Section 501(e) of the Law, 43 P.S. §821(e), states that unless
a claimant files an appeal of a notice of determination within 15 calendar days after
it is mailed to his last known address, the notice is final. The 15-day appeal period
is mandatory. In order for a referee to have jurisdiction to consider an appeal filed
after the 15-day period, the petitioner must show either fraud or a breakdown in the

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

                                              2
administrative process caused the late appeal, or the non-negligent conduct of the
party, the party’s representative or the party’s attorney caused the late appeal.


               The referee further explained, pursuant to 34 Pa. Code §101.82(b)(4),
an appeal may be filed by email. However, the filing date for such an appeal is
determined by the date recorded by the Department of Labor and Industry
(Department) or the Board’s system. Further, a party is responsible for any delay if
the email is not sent in the correct format or if there is an interruption in the electronic
signals. Id.


               Here, the referee determined, the competent documentary evidence
established that the service center mailed a notice of determination, a notice of
determination of overpayment, and a notice of determination assessing penalties to
Claimant’s last known mailing address. Claimant received these notices and knew
or should have known that the final date to file timely appeals was January 4, 2017.
Claimant was not misled or misinformed as to his appeal rights.


               The referee further explained that, at the hearing, Claimant testified he
attempted to file an appeal from the notices of determination over the internet in
December 2016. However, he was unable to provide the specific date he filed the
appeal, and he did not present documentation to establish his appeal was successfully
filed at that time. Further, a service center representative testified that the only
appeal received from Claimant was over the internet on February 22, 2017.
               Although the referee found Claimant credible that he attempted to file
an appeal over the internet in December 2016, the referee determined the record



                                             3
lacked competent evidence to establish the Department received an appeal from
Claimant in December 2016. Therefore, the referee was constrained to find that
Claimant filed his appeal over the internet, and the Department received it on
February 22, 2017.


              Further, the referee stated, the notices of determination expressly warn
claimants that if they file their appeals electronically, they are responsible for any
delay, disruption, or interruption of electronic signals and the readability of the
appeal, and claimants accept the risk that their appeals may not be properly or timely
filed.


              As such, the referee stated, he was required to conclude Claimant filed
his appeal beyond the 15-day appeal period; therefore, the referee lacked jurisdiction
to consider the appeal. Thus, the referee dismissed Claimant’s appeal. Claimant
appealed to the Board.


              The Board adopted and incorporated the referee’s findings and
conclusions, and it affirmed the referee’s decision. Claimant petitions for review to
this Court.




                                       II. Issue



                                          4
              On appeal,2 Claimant, now through counsel, asserts the Board erred in
deeming his appeal untimely where it credited his testimony that he attempted to file
his appeal by email prior to the appeal deadline.


                                     III. Discussion
              In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in evidence, witness credibility, and weight afforded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d
338 (Pa. Cmwlth. 2008).          Unchallenged findings are conclusive on appeal.
Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth.
1997). Additionally, we are bound by the Board’s findings so long as the record,
taken as a whole, contains substantial evidence to support them. Ductmate.


                                     A. Contentions
              Claimant asserts this Court should reverse the Board’s decision
dismissing his appeal as untimely. He contends he should be permitted to file an
appeal “now for then” or nunc pro tunc because an unknown error caused the service
center not to receive his December 2016 appeal.


              Claimant argues he attempted to file an appeal by email in December
2016, well before the January 4, 2017 appeal deadline. He maintains both the referee
and the Board credited this testimony, but ruled against him based on a lack of
competent evidence supporting the service center’s receipt of an email appeal.

       2
          Our review is limited to determining whether an error of law was committed, whether
constitutional rights were violated, or whether necessary findings of fact were supported by
substantial evidence. Rock v. Unemployment Comp. Bd. of Review, 6 A.3d 646 (Pa. Cmwlth.
2010).

                                             5
Claimant asserts when he became aware of the issue with his first attempt at an
appeal, he sought to rectify it by contacting the service center by phone. However,
he argues, he was unsuccessful in his attempts to do so as he could not reach anyone
from the office. Claimant contends he then sent a second attempt at an email appeal,
which the service center received on February 22, 2017.


            Because the Board credited his testimony regarding his December
appeal attempt and did not find a delay, disruption, or interruption of electronic
signals in his December appeal, other than the service center’s non-receipt of an
email appeal, Claimant asserts, this Court should reverse the Board’s decision. In
support, he relies on this Court’s decision in Wright v. Unemployment
Compensation Board of Review, 41 A.3d 58 (Pa. Cmwlth. 2011) (en banc).
Alternatively, Claimant contends, this Court should remand for further development
of a record on the circumstances regarding his December appeal.


            The Board responds that, based on this Court’s holding in Roman-
Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286 (Pa.
Cmwlth. 2009), it properly dismissed Claimant’s untimely appeal under Section
501(e) of the Law and the Board’s regulations.


                                   B. Analysis
            Section 501(e) of the Law states, as relevant:

                   Unless the claimant … files an appeal with the
            [B]oard, from the determination contained in any notice
            required to be furnished by the [D]epartment … within
            fifteen calendar days after such notice … was mailed to
            his last known post office address, and applies for a


                                         6
              hearing, such determination of the [D]epartment, with
              respect to the particular facts set forth in such notice, shall
              be final and compensation shall be … denied in
              accordance therewith.

43 P.S. §821(e).


              “The requirement that an appeal be filed within fifteen days is
jurisdictional, precluding either the Board or a referee from further considering the
matter.” Gannett Satellite Info. Sys., Inc. v. Unemployment Comp. Bd. of Review,
661 A.2d 502, 504 (Pa. Cmwlth. 1995) (citation omitted). The time for taking an
appeal cannot be extended as a matter of grace or mere indulgence. Russo v.
Unemployment Comp. Bd. of Review, 13 A.3d 1000 (Pa. Cmwlth. 2010).


              However, the Board may consider an untimely appeal in limited
circumstances. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa.
Cmwlth. 2008). The burden to establish the right to have an untimely appeal is a
heavy one as the statutory time limit established for appeals is mandatory. Roman-
Hutchinson.


              A petitioner may satisfy this heavy burden in one of two ways. Hessou.
First, he can show administrative breakdown or fraud. Cook v. Unemployment
Comp. Bd. of Review, 671 A.2d 1130 (Pa. 1996); Hessou. Second, he can show
non-negligent conduct beyond his control caused the delay. Cook; Hessou.
“[F]ailure to file an appeal within fifteen days, without an adequate excuse for the
late filing, mandates dismissal of the appeal.” Hessou, 942 A.2d at 198 (quoting




                                            7
U.S. Postal Serv. v. Unemployment Comp. Bd. of Review, 620 A.2d 572, 573 (Pa.
Cmwlth. 1993)).


             Further, Section 101.82 of the Board’s regulations states, in pertinent
part (with emphasis added):

             (a) A party seeking to appeal a Department determination
             shall file an appeal … on or before the 15th day after the
             date on which notification of the decision of the
             Department was delivered personally to the appellant or
             mailed to him at his last known post office address.

             (b) A party may file a written appeal by any of the
             following methods:

                                       ****

               (4) Electronic transmission other than fax transmission.
             The date of filing is the receipt date recorded by the
             Department appeal office or the Board’s electronic
             transmission system, if the electronic record is in a form
             capable of being processed by that system. A party filing
             by electronic transmission shall comply with Department
             instructions concerning format. 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.

This same language appears in the instructions for filing an appeal included with the
notices of determination. Certified Record (C.R.), Item #5.


             Our decision in Roman-Hutchinson is controlling here. There, the
claimant received a referee’s decision denying her UC benefits, which informed the
claimant that the appeal deadline was July 2, 2008. The claimant asserted she


                                          8
appealed the referee’s decision by email prior to the appeal deadline. However, the
UC authorities did not receive the emailed appeal; rather, they received a faxed
appeal after the expiration of the appeal period. The Board found the claimant was
not misled or misinformed as to her appeal rights, and her untimely appeal was not
caused by fraud, administrative breakdown or non-negligent conduct. Thus, it
dismissed the claimant’s appeal as untimely.


             On appeal to this Court, the claimant argued the Board erred in
dismissing her appeal as untimely because there was a breakdown in the
administrative process. Specifically, she asserted, something in the email system
went awry and led to the UC authorities’ failure to receive her timely-sent email
appeal. Relying on the “mailbox rule,” the claimant also argued that she overcame
the assertion that the UC authorities did not receive her appeal by submitting a copy
of the email she sent before the expiration of the appeal period, with proof it was
sent to the correct email address. This Court disagreed, stating:

                    Although the ‘mailbox rule’ applies to mailings via
             the post office, the Department’s regulation at 34 Pa. Code
             § 101.82(b)(4) controls emailed appeals. … Thus, even if
             [the] [c]laimant emailed her appeal before the appeal
             deadline, it was untimely because it was not received by
             the UC authorities until after the deadline. McClean v.
             [Unemployment Comp. Bd. of Review, 908 A.2d 956 (Pa.
             Cmwlth. 2006)].         Consequently, [the] [c]laimant’s
             argument fails.          Further, the regulation clearly
             contemplates malfunction in the email delivery system and
             places the resulting risk of an untimely filing on the
             [c]laimant.

                   Claimant next asserts that she is entitled to nunc pro
             tunc relief based on our [sic] decisions in Bass v.
             Commonwealth, [401 A.2d 1133 (Pa. 1979)] and Perry v.
             Unemployment Compensation Board of Review, 459

                                          9
              A.2d 1342 (Pa. Cmwlth. 1983), wherein we held that nunc
              pro tunc relief is appropriate where the untimeliness of an
              appeal is due to non-negligent conduct. However, because
              the regulation expressly provides that [the] [c]laimant
              assumed the risk of an untimely filing when she chose to
              file her appeal by email, the rationale in Bass and Perry is
              inapplicable here.

Roman-Hutchinson, 972 A.2d at 1289 (emphasis added).


              Similar to the facts presented in Roman-Hutchinson, the UC service
center mailed Claimant three notices of determination, which informed him that the
final day to appeal was January 4, 2017. Referee’s Dec., 3/22/17, Finding of Fact
(F.F.) No. 4; Referee’s Hr’g, Notes of Testimony (N.T.), 3/21/17, at 8; C.R., Item
#5. Claimant received the notices of determination and was or should have been
aware that the last day to timely file appeals was January 4, 2017. F.F. No. 5; N.T.
at 6. At some point prior to the expiration of the 15-day appeal period, Claimant
attempted to file his appeal electronically. Referee’s Dec. at 2 (emphasis added);
N.T. at 6-7. However, Claimant was unable to provide the specific date on which
he attempted to file his appeal electronically, and he did not submit any
documentation to establish he successfully filed his appeal before the appeal period
expired. Referee’s Dec. at 2; N.T. a 7. Claimant did not successfully transmit his
appeal prior to the appeal deadline; instead, he filed an appeal over the internet which
the service center received on February 22, 2017. F.F. No. 6; C.R., Item #6; N.T. at
8. Claimant was not misled or misinformed as to his appeal rights. F.F. No. 7. As
in Roman-Hutchinson, Claimant concedes “an unknown error caused the [s]ervice
[c]enter not to receive his December appeal.”3 Pet’r’s Br. at 11. Thus, as in Roman-

       3
         This is consistent with Claimant’s testimony before the referee. See Referee’s Hr’g,
Notes of Testimony (N.T.), 3/21/17, at 7, 8 (“I must have did something wrong. … I don’t know



                                             10
Hutchinson, the Board properly dismissed Claimant’s appeal of the notices of
determination as untimely.


              Further, as in Roman-Hutchinson, Claimant did not establish a right to
proceed nunc pro tunc, or “now for then.” To that end, the Board’s supported
findings reveal the service center did not receive Claimant’s appeal until seven
weeks after the appeal deadline. F.F. No. 6; C.R., Item #6; N.T. at 8. As indicated
above, a claimant filing an appeal by electronic transmission is responsible for any
delay, disruption, or interruption of electronic signals and assumes the risk of an
untimely filing. 34 Pa. Code §101.82(b)(4); Roman-Hutchinson. Thus, as we
explained in Roman-Hutchinson, Claimant is not entitled to nunc pro tunc relief
here.


              In addition, Wright, relied on by Claimant, is distinguishable. There,
the claimant attempted to file an appeal of a notice of determination by fax prior to
the appeal deadline. At a hearing, the claimant presented evidence that he timely
faxed his appeal before the July 13, 2010 appeal deadline. In particular, he
presented: his testimony; the testimony of his father, who faxed the appeal on his
behalf (sender); and, an account log from the sender’s telephone carrier that showed
the sender successfully transmitted a fax before the appeal deadline to the number
listed on the notice of determination. Further, the sender testified he was certain the
transmission was complete and confirmed. After learning the UC authorities did not
receive his faxed appeal, the claimant sent a second faxed appeal, which was


what I did, or it didn’t go through …. I don’t know what happened.”). In his appeal to the Board,
Claimant also stated that in December 2016 his “email was compromised through Yahoo ….”
Certified Record, Item #11.

                                               11
received after the appeal deadline. No witness from the service center appeared at
the hearing, and the employer offered no evidence as to the timeliness of the appeal.
Ultimately, a referee deemed the appeal timely. On further appeal, the Board
reversed. More particularly, because the claimant’s appeal purportedly faxed before
the deadline was not of record, the Board determined the claimant faxed his appeal
after the deadline, and it dismissed the appeal as untimely.


             On further appeal, this Court reversed the Board, explaining:

             The Board bases its legal conclusion that [the] [c]laimant’s
             appeal was untimely on Board finding of fact number 5, in
             which the Board found that [the] [c]laimant filed an appeal
             by fax, which the UC Center received on August 11, 2010.
             The document in the Board record with a receipt notation
             of August 11, 2010, however, is not the filing that the
             [r]eferee found timely. There is extensive and unrebutted
             testimony before the [r]eferee … that [the] [c]laimant
             faxed an appeal to the UC Center on July 9, 2010. It is
             that appeal—faxed days before the filing deadline of July
             13, 2010—that the [r]eferee found timely. …

             [T]he Board here utterly ignored [the] [c]laimant’s
             evidence. The Board’s decision does not recount the
             evidence before the [r]eferee or make any credibility
             findings with respect to the testimony, which the [r]eferee
             obviously found credible and persuasive. In essence, the
             Board completely ignored the entire evidentiary basis of
             the [r]eferee’s decision—i.e., that the [c]laimant filed his
             appeal on July 9, 2010, as reflected by both the testimony,
             the documents presented during the hearing before the
             [r]eferee, and the notation from the [s]ender’s office that
             accompanied the later-transmitted document in the
             Board’s record. Because the Board failed to address, let
             alone acknowledge, the uncontroverted evidence before
             the [r]eferee on the timeliness issue that supported the
             [r]eferee’s decision, the Board capriciously disregarded
             competent evidence.


                                         12
Wright, 41 A.3d at 62-64 (emphasis added).                   Ultimately, we concluded the
claimant’s appeal was timely, and we remanded for a determination on the merits.4


               Here, unlike in Wright, Claimant did not provide “extensive and
unrebutted testimony” to establish he successfully transmitted his appeal prior to the
appeal deadline, and the Board did not capriciously disregard Claimant’s evidence.
Id. at 62.     Indeed, although the Board credited Claimant’s testimony that he
attempted to file his appeal electronically before the deadline,5 it determined “there
is not competent evidence contained in the record to establish that the Department
received an appeal from [Claimant] in December 2016.” Referee’s Dec. at 3.
Indeed, unlike in Wright, Claimant offered nothing to corroborate his testimony that
he transmitted his appeal prior to the deadline or that the service center received it
prior to the deadline. Further, unlike in Wright, where the claimant’s evidence was
unrebutted, a service center representative appeared here and testified the service
center did not receive an appeal from Claimant until February 22, 2017, several

       4
         Accord Bennett v. Unemployment Comp. Bd. of Review, 33 A.3d 133 (Pa. Cmwlth.
2011) (en banc) (where claimant presented testimony and documentary evidence that he emailed
his appeal and the Board received it prior to appeal deadline, and the Board’s decision ignored that
evidence, the Board capriciously disregarded evidence, necessitating a remand).
       5
       While Claimant argues the Board credited his testimony that he filed his appeal in
December 2016, the Board actually stated:

               Although the [r]eferee finds [Claimant] credible, that he attempted
               to file an appeal via the internet in December 2016, there is not
               competent evidence contained in the record to establish that the
               Department received an appeal from the Claimant in December
               2016. Therefore, the [r]eferee is constrained to find that [Claimant]
               filed his appeal via the internet, which was received by the
               Department on February 22, 2017.

Referee’s Dec., 3/22/17, at 3 (emphasis added).

                                                13
weeks after the appeal period expired. N.T. at 8. Moreover, unlike in Wright,
Claimant did not present evidence that the Board received his appeal prior to the
appeal deadline such as a read receipt or other confirming information; indeed, he
concedes the service center here did not receive his attempted appeal. Pet’r’s Br. at
11.


               In addition, under these circumstances, we disagree with Claimant that
a remand for further development of a record concerning the timeliness issue is
appropriate. Indeed, based on our review of the record, there is no indication that
Claimant was denied an opportunity to present any relevant evidence before the
referee,6 or that Claimant’s evidence was not sufficiently considered by the referee
or the Board, so as to necessitate a remand.
               Accordingly, we affirm.




                                              ROBERT SIMPSON, Judge

       6
          Indeed, in his brief to this Court, Claimant does not contend that he possesses proof that
his purported December 2016 email appeal was received. Instead, he argues, “[h]ad [he] been
allowed a few moments to check his mobile phone [at the referee’s hearing] it is entirely possible
that [he] would have been able to produce evidence that he sent his appeal via email in December.”
Pet’r’s Br. at 15 (emphasis added). To that end, Claimant asserts, during the hearing, the referee
denied him an opportunity to check his email on his cell phone to see if he could find confirmation
of the December 2016 appeal he purportedly sent to the service center. Contrary to this assertion,
our review of the transcript of the referee’s hearing reveals that, when the referee asked Claimant
if he received confirmation of his purported December 2016 emailed appeal, Claimant replied “I
don’t even remember going on [my] e-mail and checking for confirmation.” N.T. at 7. Further,
although Claimant indicated he could “go back and look[,]” it was not made clear to the referee
that Claimant was seeking an opportunity to check his email on his cell phone or that Claimant
had access to his email on his cell phone at that time. Additionally, Claimant did not raise this
issue in his appeal to the Board. Thus, it is waived. Chapman v. Unemployment Comp. Bd. of
Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (issues not raised before the referee or the Board are
waived for purposes of appeal and will not be addressed for the first time by this Court).

                                                14
15
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul H. Corson, IV,                  :
                      Petitioner     :
                                     :
            v.                       :   No. 818 C.D. 2017
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER

            AND NOW, this 17th day of April, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    ROBERT SIMPSON, Judge
