           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Boesch,                  :
                    Petitioner :
                               :
            v.                 : No. 612 C.D. 2016
                               : Submitted: August 12, 2016
Unemployment Compensation      :
Board of Review,               :
                    Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: November 3, 2016

                Jason Boesch (Claimant), representing himself, petitions for review of
an order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s decision dismissing Claimant’s appeal as untimely under
Section 501(e) of the Unemployment Compensation Law (Law).1 Claimant argues
the Board should have excused the untimeliness based on his testimony that he
never received a copy of the notice of denial in the mail. Upon review, we affirm.


                Claimant was employed by Hairy Mary’s, Inc. (Employer). After his
separation from employment, Claimant filed an application for unemployment
compensation benefits.          The local service center denied his application,
determining Claimant was ineligible for benefits because he failed to register for

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e).
unemployment search services.2 Upon learning the local service center denied his
application, Claimant appealed.


              At a hearing before the referee, the issue was whether Claimant filed a
timely appeal under Section 501(e) of the Law. Referee’s Op., 2/8/16, at 2. At the
hearing, Claimant alleged he did not receive the Notice of Determination issued on
April 6, 2015. Referee’s Hr’g, Notes of Testimony (N.T.), 2/8/16, at 3-4. The
determination was mailed to Claimant’s correct mailing address on April 6, 2015.
Id. at 1-2, 4. Claimant acknowledged he did not file his appeal until after the
expiration of the appeal period. Id. at 3. According to Claimant, he never received
the notice in the mail. Id. Claimant did not testify to a persistent problem with the
mail, and he did not produce anything showing this alleged problem was brought
to the attention of postal authorities. Id. at 4. Claimant stated he learned of the
service center’s determination on January 5, 2016, when he spoke by telephone
with a service center representative who told Claimant the service center denied his
claim based on his failure to register in February 2015. Id.; see also Pet. for
Appeal, 1/7/16 at 2a. After learning the service center denied his claim, Claimant
filed his appeal on January 7, 2016. Id.


              Based on the evidence presented, the referee found that, on April 6,
2015, the service center issued a determination denying Claimant’s application for
unemployment benefits under Section 401(b)(1)(i) of the Law, 43 P.S.

       2
         Claimant was issued the Pennsylvania Unemployment Compensation Handbook, Form
UCP-1. This form explains the requirement to register for employment services offered by the
Pennsylvania CareerLink system within 30 days after filing the application for benefits.
Certified Record (C.R.) Item No. 3.



                                             2
§801(b)(1)(i).   On the same date, the service center mailed a copy of the
determination to Claimant at his last known post office address. The notice was
not returned by the postal authorities as undeliverable. The notice informed
Claimant he had 15 days from the date of the determination in which to file an
appeal if he disagreed with the determination. Claimant did not file an appeal on
or before April 21, 2015. Claimant did not file his appeal until January 7, 2016, by
mail. The referee found Claimant alleged he did not receive the determination
issued April 6, 2015. The referee further found Claimant lived at the same address
for nine years and did not experience problems receiving other mail. The referee
found Claimant’s filing of the 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. Referee’s Op., 4/6/15, Findings of Fact (F.F.) Nos. 1-8.


            Ultimately, the referee determined Claimant did not file his appeal
within the 15-day period after proper notification.       The referee determined
Claimant’s unsupported allegation that he did not receive the determination,
without more evidence, was insufficient to overcome the presumption of receipt of
the determination. Thus, the referee dismissed Claimant's appeal as untimely.


            Claimant appealed to the Board, which affirmed. The Board adopted
and incorporated the referee's findings and conclusions. Claimant petitions for
review.




                                         3
              On appeal,3 Claimant contends the referee and the Board erred by
dismissing his appeal as untimely because he never received a copy of the Notice
of Determination despite alleging he had issues with receiving mail. Claimant
further asserts he was not required to register for employment services because he
was on recall. On this basis, he argues the Board’s decision should be reversed.


              In unemployment compensation cases, the Board is the ultimate fact-
finder and is empowered to resolve all conflicts in evidence, witness credibility,
and weight accorded 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. Munski v. Unemployment Comp. Bd. of Review, 29
A.3d 133 (Pa. Cmwlth. 2011). In addition, we are bound by the Board's findings
so long as the record, taken as a whole, contains substantial evidence to support
them. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829 (Pa. 1977);
Ductmate.


              With regard to timeliness, Section 501(e) of the Law states, as
relevant:

              Unless the claimant ... files an appeal with the board,
              from the determination contained in any notice required
              to be furnished by the department ... within fifteen
              calendar days after such notice was delivered to him
              personally, or was mailed to his last known post office
              address, and applies for a hearing, such determination of

       3
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth.
2008).



                                              4
             the department, 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).


             The Board may consider an untimely appeal in limited circumstances.
Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth.
2008); Unemployment Comp. Bd. of Review v. Hart, 348 A.2d 497 (Pa. Cmwlth.
1975). 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.
Roman-Hutchinson v. Unemployment Comp. Bd. of Review, 972 A.2d 1286 (Pa.
Cmwlth. 2009).


             A petitioner may satisfy this heavy burden in one of two ways.
Hessou. First, he can show an 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 United States Postal Serv. v. Unemployment Comp. Bd. of Review,
620 A.2d 572, 573 (Pa. Cmwlth. 1993)).


                                         5
             A claimant asserting non-receipt of mail must overcome the
presumption created by the common law mailbox rule. Volk v. Unemployment
Compensation Bd. of Review, 49 A.3d 38 (Pa. Cmwlth. 2012). The mailbox rule
provides that the depositing of a properly addressed letter with prepaid postage in
the mail raises a presumption the letter reached its destination by due course of
mail. Roman–Hutchinson. Thus, under the mailbox rule, evidence that a letter
was mailed ordinarily will be sufficient to permit a fact-finder to find that the letter
was, in fact, received by the party to whom it was addressed. Id.


             Here, the Board adopted and incorporated the referee’s findings that
the service center mailed a copy of the determination to Claimant at his last-known
post office address, and the notice was not returned by the postal authorities as
undeliverable. F.F. Nos. 2, 3; Board Op., 3/11/16. Claimant did not file an appeal
by April 21, 2015, within 15 days of the service center’s April 6, 2015
determination, as required by Section 501(e). F.F. Nos. 4, 5. Claimant testified he
was back to work when the determination was issued.

             R [Referee] The claim record printout here shows all the
             actions on your claim. Last March [2015] you filed an
             [u]nemployment claim. It’s good for a year, so this claim
             is good until February 27 of 2016. So at the time when
             you originally filed it last March, you had 30 days to
             register for work.

             C [Claimant] Correct.

             R Okay. And you didn’t.

             C Because I was already back to work.



                                           6
             R Okay. So…

             C    So I didn’t -- Well, I wasn’t worried about
             [u]nemployment or any of that.

             R Okay. So when you got this letter telling you that you
             were ineligible, did you take any action at that time?

             C At that time I did not because I was back to work.

N.T. at 3. Claimant waited until January 7, 2016 to file his appeal.


             Claimant did not challenge the Board’s adopted findings. See Pet. for
Review at ¶3; Claimant’s Br. at 12. As a result, these findings are conclusive on
appeal. Munski. Further, the Board’s adopted findings are amply supported by the
record. See C.R., Item Nos. 3 (Notice of Determination, 4/6/15) & 4 (Claimant’s
Petition for Appeal, 1/7/16).


             Although Claimant testified he did not receive his mail from the
postal authorities, the fact-finder did not attach much weight to this unsupported
claim, expressly finding it insufficient to overcome the presumption of receipt.
Referee's Op. at 2.     Such credibility findings are beyond our review.         See
Ductmate. Thus, Claimant did not rebut the presumption of receipt or otherwise
establish an adequate excuse for his late appeal.


             Further, Claimant testified he was back to work when the
determination was issued.       N.T. at 3, 5.   This testimony seems to contradict
Claimant’s assertion he was unaware of the determination.           Nevertheless, the
determination clearly stated: “This disqualification will continue to apply until you



                                          7
register.” C.R., Item No. 3. Therefore, even though Claimant may have returned
to work, he was on notice that should he become unemployed again during the
same benefit year, he was obligated to complete the registration process in order to
obtain benefits. Claimant's failure to recognize the full implication that the
disqualification would continue did not provide him with justification to allow his
late appeal.


               Finally, Claimant asserts he did not need to register because he had a
recall date. Claimant's argument may have been meritorious had he filed a timely
appeal, but he did not. This Court has no jurisdiction to address the merits of the
case due to the untimely appeal. Dilenno v. Unemployment Comp. Bd. of Rev.,
429 A.2d 1288 (Pa. Cmwlth. 1981).              A “timely appeal is a jurisdictional
prerequisite.” Id. at 1289.


               However, even if Claimant misunderstood and believed he did not
need to appeal because he had already returned to work, he was subsequently laid
off again, and he reopened his claim on December 7, 2015. Review of the record
reveals that on the same date, a Departmental representative informed Claimant he
must complete the registration process. C.R., Item No. 1; N.T. at 5. Despite
receiving that instruction, Claimant still delayed filing his appeal until January 7,
2016. Even where an appeal is not timely because of non-negligent circumstances,
the appeal still must be filed within a short time after the petitioner learns of, and
has an opportunity to address, the untimeliness. Cook; Hessou.




                                           8
            For these reasons, the Board properly dismissed Claimant’s appeal as
untimely.



                                    ROBERT SIMPSON, Judge




                                       9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Boesch,                       :
                     Petitioner     :
                                    :
           v.                       :   No. 612 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :

                                  ORDER

           AND NOW, this 3rd day of November, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                   ROBERT SIMPSON, Judge
