               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Moses Gonzalez,                                :
                               Petitioner      :
                                               :
                 v.                            :   No. 1852 C.D. 2016
                                               :   Submitted: March 31, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: July 28, 2017

                 Petitioner Moses Gonzalez (Claimant) petitions for review of an order
of the Unemployment Compensation Board of Review (Board), dated
October 19, 2016, dismissing Claimant’s appeal as untimely pursuant to
Section 501(e) of the Unemployment Compensation Law (Law).1 We affirm the
Board’s order.
                 Claimant filed a claim for unemployment compensation benefits
following the termination of his employment with J.B. Hunt Transport Inc.
(Employer) as a Yard Jockey. The Erie Unemployment Compensation Service
Center (Service Center) issued a Notice of Determination (First Notice), dated
July 26, 2016, finding Claimant ineligible for benefits under Section 402(e) of the
       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43. P.S.
§ 821(e).
Law, relating to willful misconduct.2 (Certified Record (C.R.), Item No. 7.) The
First Notice stated that the last day Claimant could appeal the determination was
August 10, 2016. (Id.) Claimant did not file his appeal until August 11, 2016,
after the statutory appeal period had expired. (C.R., Item No. 8.)
                 A Referee conducted a hearing on September 9, 2016, for the sole
purpose of determining whether Claimant timely appealed from the First Notice.
(C.R., Item No. 12.) Claimant testified at the hearing that he received the First
Notice before the filing deadline of August 10, 2016. (Id. at 5.) Claimant further
testified that he “didn’t realize [] the deadline was the 10th” and that he “neglected
to notice” the deadline.         (Id. at 7, 8.)    Claimant explained that he, with the
assistance of his girlfriend, attempted to file an appeal via e-mail on or about
August 2, 2016. (Id. at 5.) Claimant did not contact the Service Center to verify
receipt of the e-mail and did not proffer any evidence of this e-mail’s existence or
receipt by the Service Center at the hearing. (Id. at 10.)
                 The Referee subsequently dismissed Claimant’s appeal. (C.R., Item
No. 13.) In so doing, the Referee issued the following findings of fact:
                 1.      On July 26, 2016, the Erie Unemployment
                 Compensation Service Center issued a Notice of
                 Determination finding the claimant ineligible for benefits
                 under Section 402(e) of the [Law] beginning with
                 waiting week ending July 9, 2016.
                 2.      The Notice was mailed to the claimant’s last
                 known mailing address, and was not returned by the
                 postal authorities as being undeliverable.
                 3.      The Notice advised the claimant that the last day to
                 file a timely appeal was August 10, 2016.

       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43. P.S.
§ 802(e).


                                               2
            4.     The claimant was not misled or misinformed
            regarding his appeal rights.
            5.     On August 11, 2016, the claimant filed an appeal
            to the Notice of Determination by facsimile.

(Id.) The Referee reasoned:
            In the present case, the claimant contends that he initially
            filed an appeal by e-mail with the assistance of his
            girlfriend approximately two weeks prior to the second
            appeal filed by facsimile on August 11, 2016. The
            claimant testified that he did not receive verification that
            the e-mail appeal had been received. The evidence
            shows the claimant did not immediately contact the
            Unemployment Compensation Service Center to verify
            the appeal had been received. Court precedent has
            determined that an appellant is responsible for the
            successful e-mail transmission of an appeal. The
            evidence shows that on August 8, 2016, the claimant was
            advised by Unemployment Compensation Service Center
            representative that he has the right to file an appeal.
            However, the claimant did not file the appeal by
            August 10, 2016, the deadline date, but instead waited
            until August 11, 2016. The claimant testified that he
            didn’t realize that there was a deadline date in which to
            file an appeal. The referee finds the claimant has not
            shown that he filed an untimely appeal due to fraud, a
            breakdown in the administrative process, or because of
            non-negligent reasons. Therefore, the claimant’s appeal
            must be dismissed in accordance with the law.

(Id.)
            Claimant appealed to the Board. By order dated October 19, 2016,
the Board affirmed the Referee’s determination and adopted and incorporated the
Referee’s findings and conclusions. The Board explained that “[t]here [was] no
credible evidence that the claimant attempted to submit an appeal on
August 8, 2016, when he was at the Career Link.” (C.R., Item No. 15.) The Board
further explained that “[t]here [was] no credible testimony or evidence that the


                                         3
claimant inquired about his denial of benefits or his alleged e-mail appeal.” (Id.)
Claimant now petitions this Court for review of the Board’s order.
              On appeal,3 Claimant argues that the Board erred as a matter of law in
dismissing his appeal as untimely. Claimant now submits that he received a
second Notice of Determination (Second Notice) that lists the last day to timely
appeal his denial of benefits as August 15, 2016. Claimant argues that his appeal,
submitted via facsimile on August 11, 2016, was, therefore, timely.
              Section 501(e) of the Law provides that unless a claimant files an
appeal with respect to a notice of determination within fifteen calendar days after
the mailing date, such determination is final and compensation shall be paid or
denied in accordance therewith. The fifteen-day time limit is mandatory and
subject to strict application.            Renda v. Unemployment Comp. Bd. of
Review, 837 A.2d 685, 695              (Pa.          Cmwlth.           2003),           appeal
denied, 863 A.2d 1151 (Pa. 2004).          Failure to timely appeal an administrative
agency’s action is a jurisdictional defect, and the time for taking an appeal cannot
be extended as a matter of grace or mere indulgence. Sofronski v. Civil Svc.
Comm’n, City of Phila., 695 A.2d 921, 924 (Pa. Cmwlth. 1997). A claimant thus
carries a heavy burden to justify an untimely appeal.                    Blast Intermediate
Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449 (Pa.
Cmwlth. 1994). An appeal nunc pro tunc may be allowed where extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
non-negligent circumstances related to the claimant, his counselor, or a third party
       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.


                                               4
caused the delay in filing the appeal.       Cook v. Unemployment Comp. Bd. of
Review, 671 A.2d 1130, 1131 (Pa. 1996).
            In the case sub judice, Claimant admitted to receiving the First Notice
before the August 10, 2016, deadline, yet he did not file his appeal until
August 11, 2016. Claimant further admitted that he “neglected to notice . . . the
expiration day was the 10th.” (C.R., Item No. 12 at 8.) Claimant, before this
Court, now asserts that his appeal was timely under the Second Notice. Claimant
did not raise this issue in his appeal to the Referee, provide any testimony before
the Referee regarding the Second Notice, or raise the issue in his appeal to the
Board. Only now before this Court does Claimant argue that the Second Notice’s
deadline of August 15, 2016, subverts the First Notice’s deadline of
August 10, 2016.    “Issues not raised at the earliest possible time during a
proceeding are waived.”      Grever v. Unemployment Comp. Bd. of Review,
989 A.2d 400, 402 (Pa. Cmwlth. 2010). Claimant, therefore, failed to preserve the
issue when he appealed the Referee’s determination to the Board and,
consequently, waived the issue. Even if Claimant had preserved this issue, we
would still conclude that the Board did not err in determining that Claimant’s
appeal was untimely. The Second Notice relates to a separate determination issued
on a different date denying Claimant’s request to backdate a compensable week
under Section 401(c) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. § 801(c), and 34 Pa. Code § 65.43. This
determination to deny backdating is independent of the determination to deny
Claimant benefits and is, therefore, not the subject of the instant appeal. Even if
the Second Notice were relevant to the instant matter, which it is not, we
nonetheless would be precluded from considering it on appeal because it is not part


                                         5
of the certified record.           See Croft v. Unemployment Comp. Bd. of
Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (“This Court may not consider
auxiliary information appended to a brief that is not part of the certified record on
appeal.”).    Moreover, Claimant does not now argue that his appeal dated
August 11, 2016, was otherwise timely.4
              Accordingly, we affirm the Board’s order, dismissing Claimant’s
appeal as untimely.




                                   P. KEVIN BROBSON, Judge



Judge Cosgrove concurs in result only.




       4
          Because Claimant’s appeal to the Referee was untimely, we, like the Referee and the
Board, do not consider his merits challenge to the First Notice, finding him ineligible for
benefits.


                                             6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Moses Gonzalez,                     :
                     Petitioner     :
                                    :
           v.                       :   No. 1852 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER

           AND NOW, this 28th day of July, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
