            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph A. Sheller,                              :
                              Petitioner        :
                                                :
                       v.                       :   No. 1833 C.D. 2017
                                                :   SUBMITTED: June 22, 2018
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                           FILED: August 16, 2018


               Claimant, Joseph A. Sheller, petitions pro se for review of an order of
the Unemployment Compensation Board of Review (Board) that affirmed the
decision of the referee to dismiss his appeal as untimely under Section 501(e) of the
Unemployment Compensation Law (Law).1 We affirm.
               On June 18, 2015, the Harrisburg Overflow Center issued three notices
of determination pursuant to numerous sections of the Law and mailed them to
Claimant at his last known mailing address. (Referee’s August 8, 2017, Decision,
Findings of Fact (F.F.) Nos. 1 and 2.) These notices reflected that Claimant had
fifteen days in which to file a timely appeal. (Id., No. 4.) Claimant did not appeal
from the 2015 determinations, however, until June 2017. (Id., No. 5.) In that regard,


   1
       Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
he alleged that he first received the determinations in 2017 with the help of his state
representative. (July 26, 2017, Hearing, Notes of Testimony (N.T.) at 3-5.) In any
event, the referee rejected Claimant’s assertion that he did not receive the notices in
2015, finding determinative the fact that they were mailed to him at his last known
mailing address and that the postal authorities did not return them as undeliverable.
(F.F. Nos. 2 and 3.) The referee observed that Section 501(e) of the Law provides
that a notice of determination shall become final and compensation shall be paid or
denied according to that decision unless it is appealed within the fifteen-day appeal
period after notice of it is mailed to the appealing party.
              In addition, mindful that the provisions of Section 501(e) are mandatory
and that a referee has no jurisdiction to consider an appeal filed after expiration of
the statutory appeal period,2 the referee also determined that Claimant as the party
who filed an untimely appeal failed to establish grounds for allowance of an appeal
nunc pro tunc.3 (Id., No. 8.) Specifically, the referee concluded that the record did
not reflect that Claimant was misinformed or misled regarding his right to appeal.
(Id., No. 7.) Accordingly, the referee dismissed Claimant’s appeal as untimely.
              The Board affirmed, adopting and incorporating all of the referee’s
findings and conclusions. In addition, the Board found:

              [C]laimant admits to receiving copies of the
              determinations at issue in May 2017. [He] waited until
              June 27, 2017, to file his appeal. Thus, even if [he] had
              successfully shown that he was not in receipt of the
              originals mailed on June 18, 2015, he clearly failed to act
              promptly in filing his appeal once he became aware of the
              determinations and the need to file an appeal.

    2
     Edwards v. Unemployment Comp. Bd. of Review, 639 A.2d 1279, 1282 (Pa. Cmwlth. 1994).
    3
      The criteria require that a party prove that the late appeal was caused by fraud or its
equivalent, by a breakdown in the appellate system, or by non-negligent conduct. McClean v.
Unemployment Comp. Bd. of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006).


                                             2
(Board’s October 17, 2017, Decision at 1.) Claimant’s appeal to this Court followed.
             On appeal, Claimant maintains that he did not receive the
determinations in 2015 and that no proof or evidence was offered substantiating a
claim that they were mailed. In that regard, he observes that the notices were not
sent by certified or registered mail, with signature confirmation required or return
receipt requested. He further notes that the documents were not sent by other means
such as e-mail. His position is without merit.
             What is referred to as the “mailbox rule” provides “that the depositing
of a properly addressed letter with prepaid postage in the post office raises a
presumption that the letter reached its destination by due course of mail.” Douglas
v. Unemployment Comp. Bd. of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016).
Ordinarily, evidence that a letter was mailed will suffice to permit a fact finder to
find that the letter was, in fact, received by the party to whom it was addressed. Id.
Two component presumptions, both rebuttable, may be at play: (1) the presumption
of regularity of the acts of public officials in placing items into the mail; and (2) the
presumption of timely receipt by the addressee when a properly mailed letter to the
last known address of the addressee has not been returned as undeliverable. Id. at
1192.
             Regarding the presumption of the regularity and mailing, the instant
record contains copies of the three notices of determination at issue, all bearing a
mailing date of June 18, 2015, and indicating a final date for a timely appeal.
(Record, Item No. 2.) It also contains the annotations or log for the processing of
these documents. (Id., Item No. 1.) In addition, Claimant testified: “Unbeknownst
to me, the document, the - - UC-44 Form was mailed to me, telling me that I was
overpaid and I had until July of 2015 to file a [sic] Appeal.” (N.T. at 4.) To the



                                           3
extent that he preserved any challenge based upon an assertion that the
determinations were not mailed, we conclude that the record evidence was sufficient
to establish the presumption of the regularity of the acts of public officials in mailing
them. Douglas, 151 A.3d at 1192 (holding that the presumption of mailing is
triggered when there is an indication of record that the act was performed).
Accordingly, the burden shifted to Claimant to rebut the presumption that he did not
receive the determinations. Id. at 1191-93.
             Notwithstanding his assertions, Claimant acknowledged that he has
lived at the same address since 1984, that he has never had a problem with his mail,
and that the 2015 notices bear his correct address. (N.T. at 3-5.) While it is true that
he continued to deny receipt, the Board did not accept his bald assertion. As noted,
when a notice is mailed to the last known address of the claimant or the employer
and is not returned as undeliverable, it is presumed that the addressee received the
notice. Volk v. Unemployment Comp. Bd. of Review, 49 A.3d 38, 41 (Pa. Cmwlth.
2012); Gaskins v. Unemployment Comp. Bd. of Review, 429 A.2d 138, 140 (Pa.
Cmwlth. 1981); see also 34 Pa. Code § 101.53 (providing, in pertinent part, that the
mailing of notices to the parties at their last known addresses as furnished by them
to the department shall constitute notice of the matters contained therein).
Accordingly, we agree that Claimant failed to rebut the presumption of receipt.
             Moreover, contrary to Claimant’s contention, there is no requirement
that the unemployment compensation authorities send a notice in any manner other
than mail. Section 501(c)(2) of the Law provides that “notice shall be given by the
department in writing to the claimant stating that the claim is invalid and the reason
therefor.” 43 P.S. § 821(c)(2).




                                           4
               Finally, the Board concluded that Claimant failed to establish the
requisite extraordinary circumstances for an appeal nunc pro tunc. Specifically, it
determined that he failed to establish that he was misinformed or misled regarding
his right to appeal.         Additionally, it found that, once he received the 2015
determinations in 2017, allegedly for the first time, he failed to act with alacrity in
pursuing his appeal.4 The timeliness of an appeal is not a mere technicality. The
failure to file a timely appeal is a jurisdictional defect and courts cannot extend the
time for taking an appeal as a matter of grace or mere indulgence. Sofronski v. Civil
Serv. Comm’n, City of Phila., 695 A.2d 921, 924 (Pa. Cmwlth. 1997). The party
seeking a late appeal, therefore, must justify the delay in filing the appeal. Id. This
is an extremely heavy burden. Blast Intermediate Unit No. 17 v. Unemployment
Comp. Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). As determined here,
Claimant failed to satisfy this burden.
               Accordingly, we affirm.



                                               _____________________________________
                                               BONNIE BRIGANCE LEADBETTER,
                                               Senior Judge




    4
      To the extent that Claimant outlines in his brief what steps he took after his 2017 receipt of
the 2015 determinations, this Court may not consider that extra-record evidence. See Croft v.
Unemployment Comp. Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (court may not consider
auxiliary information appended to a brief that is not part of certified record on appeal). In addition,
regarding his statement that he could call a witness at a future date, we note that he had the
opportunity to present evidence in support of his position at the hearing.


                                                  5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph A. Sheller,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 1833 C.D. 2017
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :



                                       ORDER


            AND NOW, this 16th day of August, 2018, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.



                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge
