            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bankers Life & Casualty,                      :
                            Petitioner        :
                                              :
                     v.                       :   No. 1590 C.D. 2018
                                              :   SUBMITTED: June 6, 2019
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                          FILED: June 27, 2019


              Bankers Life & Casualty (Employer) petitions for review of the
November 5, 2018 decision of the Unemployment Compensation (UC) Board of
Review (Board) affirming a referee’s decision holding that Employer’s petition for
appeal was untimely under section 501(e) of the Unemployment Compensation Law
(Law).1 We now reverse and remand.


                             Facts and Procedural History
              On December 11, 2017, the Duquesne UC Service Center issued a
notice of determination finding Joseph W. Zuiker (Claimant) eligible for benefits




       1
       Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e).
under the Law.2 (Finding of Fact No. 1.) The notice of determination was mailed
to the parties’ addresses of record and was not returned by the postal authorities.
(Finding of Fact No. 2.) The notice of determination advised the parties that the last
day to file an appeal was December 26, 2017. (Finding of Fact No. 3.) Counsel for
Employer submitted an appeal via certified mail to the Duquesne UC Service Center,
but the postal authorities returned the same on January 6, 2018, as undeliverable. 3
(Finding of Fact No. 4.) On January 31, 2018, counsel for Employer resubmitted
the appeal correspondence via fax, and included a copy of the certified mail envelope
that was returned as undeliverable. (Finding of Fact No. 5.) However, the postmark
on the copy of the certified mail envelope was not readable. Id.
               The referee subsequently scheduled and held a hearing regarding
Employer’s untimely appeal on February 26, 2018. At this hearing, Employer
presented the testimony of William Weissman, the attorney for Employer who
prepared and sent the original appeal to the Duquesne UC Service Center. Attorney
Weissman testified that he sent the appeal on December 26, 2017, via certified mail
with return receipt, to the address provided in the notice of determination, i.e., 14 N.
Linden Street, Duquesne, Pennsylvania 15110-1067. He stated that the postal
authorities returned the appeal to his office on January 6, 2018, marked as
undeliverable and unable to forward. Attorney Weissman indicated that he sent
another petition for appeal, along with the original petition and a copy of the original
envelope, via fax on January 31, 2018. While he acknowledged that the postmark
on the copy of the original envelope was unreadable, he noted that his customary

       2
          Section 402(h) of the Law, 43 P.S. §802(h), generally provides that an employee shall be
ineligible for benefits for any week in which he is engaged in self-employment.

       3
        Although returned as undeliverable, the address to which counsel for Employer sent the
appeal was the correct address for the Duquesne UC Service Center as set forth in the notice of
determination.

                                                2
practice was to sign and mail letters on the same date, i.e., the date reflected on the
letter. (Notes of Testimony (N.T.), 2/26/2018, pp. 8-10; Reproduced Record (R.R.)
at 75a-77a.)
               Employer also presented the testimony of Joshua Ford, a branch sales
manager for Employer. Mr. Ford testified that Claimant had originally worked for
Employer as an independent contractor selling life insurance for approximately three
weeks during October and November of 2017, at which time he resigned. During
that time, Claimant did not receive wages but strictly worked for commissions. Mr.
Ford proceeded to testify regarding the specific nature of Claimant’s work with
Employer in order to establish that Claimant was an independent contractor and
engaged in self-employment. However, Mr. Ford indicated that Claimant was later
hired as an employee, namely as a field trainer, on January 1, 2018. (N.T.,
2/26/2018, pp. 10-18; R.R. at 77a-85a.)
               On March 14, 2018, the referee issued her decision dismissing
Employer’s appeal as untimely. The referee noted that under section 501(e) of the
Law, a party has fifteen calendar days to file an appeal with the Board. The referee
also noted that section 101.82(b)(1) of the Board’s regulations, 34 Pa. Code
§101.82(b)(1), which addresses appeals filed by mail, provides that the filing date
will be determined by the date of the official postmark on the envelope containing
the appeal or the date of a postage meter mark. If no filing date can be determined
by the postmark or postage meter mark, then the appeal will be deemed filed when
it is received by the Board. While Attorney Weissman testified that he timely sent
the appeal via certified mail on December 26, 2017, the referee stated that the copy
of the envelope that was provided to support this assertion did not contain a readable
date stamp.



                                          3
              Employer appealed to the Board, but the Board affirmed the referee’s
decision. In its decision, the Board noted that Employer attached a document to its
appeal that was not part of the record below and asked that it be considered to show
that its appeal was timely filed.4 However, the Board refused to consider any extra-
record evidence. The Board stated that Employer should have submitted this
document at the referee’s hearing for it to be considered. Further, the Board denied
a request from Employer to remand the matter to the referee for a decision on the
merits. Employer thereafter filed a petition for review with this Court.


                                        Discussion
              On appeal,5 Employer argues that the Board erred in affirming the
referee’s dismissal of its appeal as untimely given the uncontroverted testimony that
it timely mailed the petition for appeal to the correct address, but the United States
Postal Service, for unknown reasons, returned the mailing as undeliverable, and
where Employer produced a clear copy of the original envelope with a postmark of
December 26, 2017. For the following reasons, we agree with Employer.


              Section 501(e) of the Law states,

              (e) Unless the claimant or last employer or base-year
              employer of the claimant files an appeal with the board
              from the determination contained in any notice required to
              be furnished . . . 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 the department, with
       4
          This document was simply a clearer copy of the envelope that contained Employer’s
original appeal, with a visible and readable postage mark of December 26, 2017.

       5
        Based upon the issue presented here, the scope of our review is limited to determining
whether errors of law were committed.

                                              4
               respect to the particular facts set forth in such notice, shall
               be final and compensation shall be paid or denied in
               accordance therewith.
43 P.S. §821(e).
               If an appeal is not filed within fifteen days of mailing, the referee and
the Board lack jurisdiction to consider the matter, and the initial eligibility
determination becomes final.6 Roman-Hutchinson v. Unemployment Comp. Bd. of
Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009); U.S. Postal Serv. v.
Unemployment Comp. Bd. of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 1993). We
agree with the Board that Attorney Weissman’s testimony, absent evidence of a


       6
        In determining whether an appeal filed by mail is timely filed, we find guidance in section
101.82(b)(1) of the Board’s regulations, which states,

               (1) United States mail. The filing date will be determined as
               follows:

                      (i)     The date of the official United States Postal
                              Service postmark on the envelope containing
                              the appeal, a United States Postal Service
                              Form 3817 (Certificate of Mailing) or a
                              United States Postal Service certified mail
                              receipt.

                      (ii)    If there is no official United States Postal
                              Service postmark, United States Postal
                              Service Form 3817 or United States Postal
                              Service certified mail receipt, the date of a
                              postage meter mark on the envelope
                              containing the appeal.

                      (iii)   If the filing date cannot be determined by any
                              of the methods in subparagraph (i) or (ii), the
                              filing date will be the date recorded by the
                              Department, the workforce investment office
                              or the Board when it receives the appeal.

34 Pa. Code §101.82(b)(1)(i)-(iii).

                                                5
postmark or other postal service documentation of the mailing date, is insufficient
to establish that the appeal was timely filed. That is not to say, however, that his
undisputed testimony concerning his mailing of the document is of no significance.
Rather, such testimony has probative value in determining whether to allow an
appeal nunc pro tunc. As we have repeatedly noted, an appeal nunc pro tunc may
be allowed “where a delay in filing the appeal is caused by extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
non-negligent circumstances related to an appellant or [her] counsel or a third party.”
Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth.
2010).
             In the seminal case of Bass v. Commonwealth, 401 A.2d 1133 (Pa.
1979), our Supreme Court for the first time extended the allowance of a nunc pro
tunc appeal to a situation involving the non-negligent failure of counsel to file a
timely appeal. In that case, the client, Shirley Bass, had decided to appeal this
Court’s dismissal of the Commissioner of the Bureau of Corrections from a trespass
suit she filed against multiple parties after her husband was killed by an inmate who
absconded during a weekend furlough from then-Graterford Prison. Ms. Bass
communicated her decision to counsel, who prepared the necessary appeal papers
for filing six days prior to the appeal deadline. However, on that day, the secretary
for counsel became ill and missed the entire next week. During that time, the appeal
papers sat in a folder along with other filings on the corner of the secretary’s desk.
When the secretary returned to work, she discovered the folder, advised counsel, and
he prepared a petition for permission to file the appeal nunc pro tunc. Our Supreme
Court ultimately granted this petition, noting that the client should not suffer because
of the non-negligent conduct of her counsel. The Court emphasized that the “non-
negligent failure to file a timely appeal . . . was corrected within a very short time,


                                           6
during which any prejudice to the other side of the controversy would necessarily be
minimal.” Id. at 1135-36.
                Our Supreme Court later expanded the allowance of a nunc pro tunc
appeal to situations involving the non-negligent conduct of the party himself in Cook
v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996). In
that case, the claimant had scheduled a meeting with an attorney to discuss an appeal
from a referee’s denial of unemployment compensation benefits but, two days prior
to that meeting, the claimant collapsed and was hospitalized. The claimant was
released from the hospital one day after the time for appeal had expired and filed his
appeal three days after his release. The referee dismissed the appeal as untimely,
and both the Board and this Court affirmed. Our Supreme Court, however, reversed,
explaining,

                We believe a better statement of the rule in Bass is that
                where an appeal is not timely because of non-negligent
                circumstances, either as they relate to appellant or his
                counsel, and the appeal is filed within a short time after the
                appellant or his counsel learns of and has an opportunity
                to address the untimeliness, and the time period which
                elapses is of very short duration, and appellee is not
                prejudiced by the delay, the court may allow an appeal
                nunc pro tunc.
Id. at 1131 (emphasis added).
                At the hearing before the referee,7 Employer presented uncontroverted
testimony from Attorney Weissman that he sent the appeal on December 26, 2017,
via certified mail with return receipt, to the address provided in the notice of
determination. Attorney Weissman noted that his customary practice was to sign
and mail letters on the same date, i.e., the date reflected on the letter. In this case,
the record reflects that the letter accompanying the original appeal was dated

      7
          Claimant declined to participate in the referee’s hearing.

                                                  7
December 26, 2017. Additionally, the copy of the original envelope submitted at
the referee’s hearing confirms that it was mailed to the correct address of the
Duquesne UC Service Center as set forth in the notice of determination. For
unknown reasons unrelated to the conduct of Employer or Attorney Weissman, the
postal authorities returned the appeal on January 6, 2018, marked as undeliverable
and unable to forward. Shortly thereafter, on January 31, 2018, Attorney Weissman
faxed another petition for appeal, along with the original petition and a copy of the
original envelope. Further, the Board has never suggested that, let alone how, it
would be prejudiced by allowing the appeal to proceed nunc pro tunc.


                                    Conclusion
             We must conclude that Attorney Weissman’s uncontroverted
testimony, along with the documentation which he produced, while insufficient
under the law to prove timely mailing, did establish that an administrative
breakdown by the postal service caused the untimely appeal, and satisfies all the
necessary elements to permit the filing of the appeal nunc pro tunc.
             Accordingly, the order of the Board is reversed.          The matter is
remanded to the Board, with specific instruction to remand to the referee, for
consideration of the merits of Employer’s appeal nunc pro tunc.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bankers Life & Casualty,                   :
                           Petitioner      :
                                           :
                 v.                        :   No. 1590 C.D. 2018
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :



                                        ORDER


            AND NOW, this 27th day of June, 2019, the order of the Unemployment
Compensation Board of Review (Board), dated November 5, 2018, is hereby
reversed. The matter is remanded to the Board, with specific instruction to remand
to the referee, for consideration of the merits of the appeal of Bankers Life &
Casualty nunc pro tunc.
            Jurisdiction relinquished.



                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
