                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Kinback,                                :
                            Petitioner        :
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 2403 C.D. 2014
                    Respondent                :   Submitted: November 20, 2015

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: March 7, 2016

              Frank Kinback (Claimant), pro se, petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) November 21, 2014
order dismissing Claimant’s appeal under Section 501(e) of the UC Law (Law).2
Essentially, the issue before the Court is whether the UCBR erred by dismissing
Claimant’s appeal as untimely.3 After review, we affirm.
              Claimant was receiving Emergency UC (EUC) benefits in 2014. At that
time, Claimant’s address was 8125 Algon Avenue, Philadelphia, Pennsylvania 19152.
On May 12, 2014, the Erie UC Service Center mailed Claimant a Notice of
Determination (Determination) denying his EUC benefits for the week ending June
22, 2013, pursuant to Sections 4001(i)(1)(B) and 4001(i)(3) of the Supplemental

       1
         This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
       2
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e) (relating to time for appeal).
       3
         Claimant also raises the issue of whether he was properly denied benefits under Sections
4001(i)(1)(B) and 4001(i)(3) of the Supplemental Appropriations Act of 2008, 26 U.S.C. § 3304
Note. Given our disposition of the first issue, we do not reach that question.
Appropriations Act of 2008 (EUC Act), 26 U.S.C. § 3304 Note, due to his failure to
participate in mandatory reemployment and eligibility assessment sessions. On that
same day, the Erie UC Service Center mailed Claimant a Non-Fraud Overpayment
Determination (Overpayment Determination) under Sections 4005(b) and 4005(c) of
the EUC Act, 26 U.S.C. § 3304 Note. The Determinations were mailed to Claimant
at 8125 Algon Avenue, Philadelphia, Pennsylvania 19152.                    Both Determinations
informed Claimant that May 27, 2014 was the last day to file an appeal.
              Claimant appealed from the Determinations on July 16, 2014. A Referee
hearing was held on September 30, 2014. On October 2, 2014, the Referee dismissed
Claimant’s appeal as untimely pursuant to Section 501(e) of the Law. Claimant
appealed to the UCBR. On November 21, 2014, the UCBR affirmed the Referee’s
decision. Claimant appealed to this Court.4
              Claimant argues that the UCBR erred by dismissing his appeal as
untimely since he did not receive the Determinations until after the last day to appeal,
and thereafter he was unable to reach a representative at the unemployment office for
nearly two weeks.

              Section 501(e) of the Law, . . . provides that an appeal from
              the UC Service Center’s notice of eligibility determination
              must be filed ‘within fifteen calendar days after such notice
              was delivered to him [or her] personally, or was mailed to
              his [or her] last known post office address.’

Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1002 (Pa. Cmwlth.
2010). “Failure to timely appeal an administrative agency’s decision constitutes a
jurisdictional defect.” Id. “The appeal provisions of the law are mandatory: failure
to file an appeal within fifteen days, without an adequate excuse for the late filing,

       4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).
                                                 2
mandates dismissal of the appeal.”      Dumberth v. Unemployment Comp. Bd. of
Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (quoting U.S. Postal Serv. v.
Unemployment Comp. Bd. of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 1993)).

            If an appeal is not filed within fifteen days of the mailing of
            the determination, it becomes final, and the [UCBR] does
            not have the requisite jurisdiction to consider the matter.
            Appeal periods, even at the administrative level, are
            jurisdictional and may not be extended as a matter of grace
            or indulgence; otherwise, there would be no finality to
            judicial action. Therefore, an appeal filed one day after the
            expiration of the statutory appeal period must be dismissed
            as untimely.

Dumberth, 837 A.2d at 681 (citations omitted). Here, because Claimant’s appeal was
not filed until July 16, 2014, 51 days after the May 27, 2014 deadline, it was clearly
untimely.
            We acknowledge that an appeal’s untimeliness is not always fatal.

            [T]he [UCBR] may consider an untimely appeal in limited
            circumstances. The burden to establish the right to have an
            untimely appeal considered is a heavy one because the
            statutory time limit established for appeals is mandatory.
            An appellant may satisfy this heavy burden in one of two
            ways. First, he can show the administrative authority
            engaged in fraudulent behavior or manifestly wrongful or
            negligent conduct. Second, he can show non-negligent
            conduct beyond his control caused the delay.

Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth.
2008) (citations omitted). “Where notice is mailed to a claimant’s last known address
and not returned by the postal authorities as undeliverable, the claimant is presumed
to have received it and is barred from attempting to appeal after the expiration of the
appeal period provided in Section 501(e) of the Law.” Mihelic v. Unemployment
Comp. Bd. of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979).



                                          3
             In the instant matter, Claimant testified that in May 2014, he was
working at a job in Washington, D.C. during the weekdays, but returned home on
weekends and checked his mail. He could not recall what day he received the
Determinations, but asserted that they were “already way past the [appeal] date.”
Certified Record Item 8, September 30, 2014 Notes of Testimony (N.T.) at 9.
Claimant described that, after he read them, “[he] tried calling the unemployment
office to find out what [he] had to do.” N.T. at 9. He acknowledged that the appeal
instructions accompanying the Determinations specified that appeals must be filed by
mail, by fax or by email, and that he “must have overlooked” the portion of the
instructions stating that appeals cannot be made by telephone. N.T. at 10.
             Notwithstanding, Claimant asserted that he preferred to “talk to a live
representative,” which took him approximately two weeks. N.T. at 10. Claimant
explained: “[W]hen . . . I tried calling the unemployment office[,] . . . I either got put
on hold or the PAT system would say call back during business hours.” N.T. at 9.
Claimant recalled that when he finally reached a representative on July 11, 2014, he
was told that although the appeal deadline had passed, an appeal form would be sent
to him, and that he should mail or fax it, which he did on July 16, 2014.
             Based upon this evidence, we hold that Claimant failed to prove that his
appeal was due to “the administrative authority engag[ing] in fraudulent behavior or
manifestly wrongful or negligent conduct[,]” or “non-negligent conduct beyond
[Claimant’s] control[.]” Hessou, 942 A.2d at 198. Rather, the evidence established
that Claimant’s untimely appeal was due to his failure to check his mail regularly,
and his choice to file his appeal by telephone rather than as clearly instructed in the
Determinations and appeal guidelines. Accordingly, the UCBR properly affirmed the
Referee’s decision dismissing Claimant’s appeal.




                                            4
For the above-stated reasons, the UCBR’s order is affirmed.

                         ___________________________
                         ANNE E. COVEY, Judge




                             5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Kinback,                       :
                       Petitioner    :
                                     :
                 v.                  :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 2403 C.D. 2014
                    Respondent       :


                                    ORDER

           AND NOW, this 7th day of March, 2016, the Unemployment
Compensation Board of Review’s November 21, 2014 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
