             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark E. McFadden,                                 :
                               Petitioner         :
                                                  :
                       v.                         :    No. 951 C.D. 2018
                                                  :    Submitted: April 5, 2019
Unemployment Compensation                         :
Board of Review,                                  :
                    Respondent                    :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                  FILED: November 21, 2019


       Mark E. McFadden (Claimant), proceeding pro se, petitions for review of an
Order of the Unemployment Compensation (UC) Board of Review (Board) dated
June 12, 2018, which affirmed the Referee’s Decision dismissing Claimant’s appeal
as untimely pursuant to Section 501(e) of the UC Law1 (Law). On appeal, Claimant
avers the UC Altoona Service Center (Service Center) erred by accepting a Request
for Relief From Charges (Request), which he characterizes as an “untimely appeal,”


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e) (providing 15 days to appeal a determination before a determination is deemed final). If
an appeal is not filed within 15 days, the referee and Board lack jurisdiction to consider the matter.
Carney v. Unemployment Comp. Bd. of Review, 181 A.3d 1286, 1287-88 (Pa. Cmwlth. 2018).
filed by his former employer Arthur J. Gallagher Service (Employer).2 Claimant
argues that because the Request was untimely, the Service Center and the Board
lacked authority to consider Employer’s Request and, therefore, all actions after his
initial UC eligibility determination are invalid. Additionally, Claimant avers the
Board erred by concluding Claimant did not demonstrate proper cause for his
nonappearance at a March 19, 2018 hearing (Hearing). Specifically, Claimant
argues the Board erred by improperly relying on the mailbox rule to presume timely
delivery of the Notice of the Hearing (Notice) without supporting evidence, and in
light of Claimant’s testimony to the contrary. Under the current state of the law, we
are constrained to affirm.
       From August 24, 2015, until his discharge on May 8, 2017, Claimant worked
as a senior account manager for Employer. After his discharge, Claimant filed an
application for UC benefits in June 2017, and thereafter received bi-weekly benefits
through January 2018, pursuant to a Notice of Financial Determination.3 After
receiving the Request, the Service Center mailed to Claimant’s last known address
a Notice of Determination and Notice of Determination Overpayment of Benefits
(Determinations). The Determinations stated Claimant was ineligible to receive UC




       2
          We have rearranged the order of Claimant’s arguments for ease of resolution of the issues.
       3
           The record contains a letter, dated June 27, 2017, in which Employer requests a
determination as to Claimant’s eligibility following this initial determination. (Certified Record
(C.R.) Item 2, Ex. SC-8.) It is unclear whether this letter ever reached the Service Center.
Employer subsequently attached this June 27, 2017 letter to its Request, inquiring as to the status
of its protest. (Id., Ex. SC-7.) All of these documents were received by the Service Center in
December 2018. Neither Claimant nor the Board reference Employer’s June 27, 2017 letter,
explain what occurred during the initial proceedings, or assert what, if any, impact the letter has
on this Court’s consideration of the issues before it. This letter raises some serious questions about
the initial decision to commence payments to Claimant, but, ultimately, does not alter our result.



                                                  2
benefits pursuant to Section 402(e)4 of the Law because he was discharged for
insubordination and that he was liable for repayment of the UC benefits that he
received pursuant to Section 804(a)5 of the Law.                     (Notices of Determination,
Certified Record (C.R.) Item 5.) The Determinations stated Claimant had until
February 6, 2018, to appeal the Determinations, consistent with Section 501(e) of
the Law. (Notices of Determination, C.R. Item 5.)
        On February 8, 2018, Claimant filed an appeal of the Determinations to the
Board. Claimant’s appeal stated that the reason it was untimely was because he did
not receive the Determinations until February 7, 2018, the day after the appeal was
due. Thereafter, on March 5, 2018, the Board mailed to Claimant the Notice
scheduling the Hearing for March 19, 2018, to determine “[w]hether [Claimant] filed
a timely and valid appeal from the initial determination.” (Notice of Hearing, C.R.
Item 8.) Claimant did not appear at said Hearing, and the Referee conducted the
Hearing in Claimant’s absence.6 On March 20, 2018, the Referee entered a Decision
with the following findings of fact:

        1. On January 22, 2018, the Altoona UC Service Center mailed 2
           Notices of Determinations to the [C]laimant’s last known mailing
           address, 1 of which denied benefits under Section 804(a) of the UC
           Law.

        2. Neither determination mailed to the [C]laimant was returned by the
           postal authorities as being undeliverable.

        4
          Pursuant to Section 402(e) of the Law, a claimant is ineligible to receive UC benefits
when “unemployment is due to [the claimant’s] discharge or temporary suspension from work for
willful misconduct connected with [the claimant’s] work.” 43 P.S. § 802(e).
        5
          Pursuant to Section 804(a) of the Law, a claimant is liable for repayment of UC benefits
claimant was not entitled to receive. 43 P.S. § 874(a).
        6
          “If a party notified of the date, hour and place of a hearing fails to attend a hearing without
proper cause, the hearing may be held in [the party’s] absence.” Section 101.51 of the Board’s
Regulations, 34 Pa. Code § 101.51.


                                                   3
       3. Said determinations contained appeal instructions which indicated
          the last day to file a timely appeal was February 6, 2018.

       4. The [C]laimant filed an appeal electronically on February 8, 2018.

(Referee Decision, Findings of Fact ¶¶ 1-4.) Based upon the foregoing facts, the
Referee dismissed Claimant’s appeal as untimely pursuant to Section 501(e) of the
Law.
       Thereafter, Claimant filed an appeal of the Referee’s Decision to the Board
requesting the matter be reopened.7 In response, the Board remanded the case to the
Referee to conduct a hearing “to receive testimony and evidence on the [C]laimant’s
reason for his nonappearance at the previous [H]earing.” (Board Hearing Order,
C.R. Item 16.) Additionally, the Board’s Order stated that the parties could present
evidence at the remand hearing regarding the timeliness of Claimant’s appeal of the
Determinations and on the merits of Claimant’s appeal, but that if the Board found
he was without proper cause for his nonappearance, it would not consider the other
evidence.8 (Id.)
       At the remand hearing, Claimant testified that he did not appear at the Hearing
because he received the Notice “after the hearing date had already occurred.”


       7
          A request to reopen a hearing “which is not received before the decision was mailed, but
is received or postmarked on or before the 15th day after the decision of the referee was mailed to
the parties shall constitute a request for further appeal to the Board and a reopening of the hearing.”
Section 101.24(c) of the Board’s Regulations, 34 Pa. Code § 101.24(c). If the Board reopens the
case, “the case will be remanded and a new hearing scheduled, with written notice thereof to each
of the parties.” Id. We have previously “held that not receiving or not timely receiving a hearing
notice can constitute ‘proper cause’ for reopening a hearing.” Volk v. Unemployment Comp. Bd.
of Review, 49 A.3d 38, 40 (Pa. Cmwlth. 2012).
        8
          If the Board determines that a claimant did not have proper cause for his nonappearance
at a referee’s hearing, the Board “must issue a decision on the merits with findings of fact based
upon the record before the referee.” Ortiz v. Unemployment Comp. Bd. of Review, 481 A.2d 1383,
1386 (Pa. Cmwlth. 1984).


                                                  4
(Remand Hearing Transcript at 9, C.R. Item 20.) Specifically, Claimant testified
that he received the Notice on March 19, 2018, the day of the Hearing. As support
of this claim, Claimant introduced into evidence the envelope in which the Notice
was mailed. The envelope contains a postage meter mark dated March 5, 2018, and
a handwritten date of March 19, 2018. (Id.; Claimant’s Ex. 1; Claimant’s Amended
Brief (Br.), Attach. 01a.) Claimant testified that he wrote March 19, 2018, on the
envelope to note the day he received it in the mail. Claimant further testified that he
lives in a townhouse community with a central mailbox and that mail is sometimes
placed in the wrong box. Claimant suggested that the Notice could have been placed
in the wrong box, causing a delay in its delivery to him. However, Claimant did
admit to receiving the Notice in his personal mailbox.
      Following the remand hearing, the Board entered its June 12, 2018 Order,
affirming the Referee’s March 20, 2018 Decision dismissing Claimant’s appeal as
untimely. The Board found that:

      The [C]laimant alleges he failed to appear because he received the
      notice of hearing after the hearing had been held on March 19, 2018.
      The [C]laimant advanced that he occasionally gets his mail redirected
      because he lives in a housing development which shares a central box
      with individual locked mailboxes and that it is not uncommon for the
      postal worker to place the mail in the wrong box. However, regarding
      the notice of hearing, the [C]laimant acknowledged that he received it
      in his personal locked mailbox. The record indicates that the notice of
      hearing was placed in the mail on March 5, 2018, and therefore[,] it is
      presumed to have been received in a timely manner. The Board
      discredits the [C]laimant’s testimony that he received the notice late.
      Consequently, the Board does not find proper cause for the
      nonappearance. Therefore, the Board has not considered the testimony
      and evidence on the timeliness offered at the remand hearing.




                                          5
(Board Order.) The Board concluded that based upon the record created prior to the
remand hearing, the Referee’s Decision dismissing Claimant’s appeal as untimely
was proper under the Law. Claimant now petitions this Court for review of the
Board’s June 12, 2018 Order.9
       On appeal, Claimant avers the Service Center erred by accepting the Request
filed by the Employer, which Claimant characterizes as an untimely appeal, and
therefore, the Determinations should never have been issued. Claimant argues that
because Employer’s Request was untimely all actions after January 1, 2018, should
be invalidated because the Service Center and Board lacked authority to consider
Employer’s Request.         Additionally, Claimant avers that the Board erred in
concluding that he did not demonstrate proper cause for his nonappearance at the
Hearing.
       First, Claimant avers that the Service Center erred by accepting the Request,
filed more than 15 days after Claimant was found to be eligible for UC benefits via
a Notice of Financial Determination in June 2017, and that the Service Center lacked
the authority to issue the Determinations in response to Employer’s Request because
the June 2017 finding as to Claimant’s eligibility was final. This argument is not
supported by the law.        Section 501(a) of the Law governs the procedure for
determining a claimant’s eligibility to receive UC benefits. Pursuant to Section
501(a) of the Law, the Pennsylvania Department of Labor and Industry (Department)
is charged with examining all applications for UC benefits and must provide notice
to claimants, and their employers, whether the claimant is eligible to receive UC

       9
          “Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).



                                              6
benefits. 43 P.S. § 821(a).10 If a claimant’s UC claim is facially valid under Section
401(a) of the Law, 43 P.S. § 801(a),11 and the claimant is found to be eligible for UC
benefits by the Department, no determination as to eligibility need be made by the
Department. 43 P.S. § 821(c). However, if an employer files information with the
Department that raises an issue of a claimant’s eligibility to receive UC benefits for
reasons other than Section 401(a), the Department must render a determination on
that issue.      Id.    A determination rendered by the Department in response to
information provided by an employer to the Department becomes final if an appeal
is not filed within 15 days after the Department issues the determination. 43 P.S.
§ 821(e).
       Contrary to Claimant’s characterization, Employer’s request for relief from
charges is not an “appeal.” Pursuant to Section 302.1(a)(1) of the Law, an employer
may file a request for relief from charges if, among other things, a claimant “was
separated from his most recent work for an employer due to being discharged for
willful misconduct connected with that work.”                   43 P.S. § 782.1(a)(1).12         “An
employer seeking relief from charges is requesting a tax exemption . . . .” Ruffner


       10
            Section 501(a) of the Law provides, in relevant part:

       The [D]epartment shall promptly examine each application for benefits and on the
       basis of the facts found by it shall determine whether or not the application is valid.
       Notice shall be given by the [D]epartment in writing to the claimant and each base-
       year employer of the claimant, stating whether or not the claimant is eligible under
       section four hundred and one (a) [of the Law], and, if declared eligible thereunder,
       the weekly benefit rate and the maximum amount of compensation payable . . . .

43 P.S. § 821(a).
        11
           Pursuant to Section 401(a) of the Law, a claimant that has applied for UC benefits is
eligible to receive UC benefits if, among other things, the claimant meets the earnings
requirements set forth in subsection (a). 43 P.S. § 801(a).
        12
           Added by Section 3 of the Act of June 17, 2011, P.L. 16.


                                                  7
v. Unemployment Comp. Bd. of Review, 172 A.3d 91, 96 (Pa. Cmwlth. 2017)
(citation omitted). A request for relief from charges is separate and distinct from an
appeal of a notice of determination. Id. Because a request for relief from charges is
not an “appeal,” it is not subject to the 15-day appeal period contained in Section
501(e) of the Law. Narducci v. Unemployment Comp. Bd. of Review, 183 A.3d 488,
495-96 (Pa. Cmwlth. 2018) (rejecting, among other things, the argument “that the
Board lacked jurisdiction to issue a notice of determination denying benefits [10]
months after [the c]laimant was found to be eligible” based on an employer’s relief
from charges filed more than 15 days after the claimant’s facially valid claim for
benefits was granted).
      Here, the Service Center did not err by considering Claimant’s eligibility to
receive UC benefits under Section 402 of the Law based on the information in
Employer’s Request, even though the Request was filed more than 15 days after the
Service Center found Claimant to be financially eligible to receive UC benefits,
because such Request was not an “appeal.” Additionally, the Service Center did not
err by issuing the Determinations in response to Employer’s Request because no
final determination had been previously made as to Claimant’s eligibility to receive
UC benefits. Consistent with Section 501(c) of the Law, the Service Center found
Claimant eligible to receive UC benefits via a Notice of Financial Determination in
June 2017, but did not issue a notice of determination at that time. A financial
determination issued by the Department “determines ‘financial eligibility’ for UC
benefits.” Narducci, 183 A.3d at 490 n.4. Further, where “an employer does not
provide information within 15 days [of receiving notice of a claimant’s UC claim]
giving reasons why [a] claim should not be granted . . . [and] the claim is facially
valid, then benefits can be granted without a notice of determination being issued.”



                                          8
Id. at 496. Since no notice of determination was issued at that time, nothing became
final upon the Service Center’s acceptance of Claimant’s UC application. See id.
Therefore, the Service Center was not without authority to issue the Determinations
because there had been no prior final determination regarding Claimant’s eligibility
to receive UC benefits under Section 402 of the Law.
      Second, Claimant argues that the Board erred by finding Claimant did not
demonstrate proper cause for not attending the Hearing. Specifically, Claimant
contends the Board improperly relied on the mailbox rule to presume that the Notice
was timely delivered to Claimant, despite there being no evidence that the Notice
was actually mailed on March 5, 2018, and despite his testimony regarding the late
delivery of the Notice. Claimant does not dispute the mailing of the Notice, but
rather asserts that there is no evidence to support the Board’s conclusion that the
Notice was mailed on March 5, 2018. On appeal, Claimant suggests that the Notice
could have been mailed after March 5, 2018, resulting in it being delivered to
Claimant after the Hearing.
      “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). The rule creates two rebuttable
presumptions: (1) the regularity of the acts of public officials in placing items in the
mail; and (2) the timely receipt by the addressee when a properly addressed and
stamped letter has not been returned undeliverable.         Id. at 1192.    These two
presumptions are applied separately. Id. Meaning, there must be evidence that an
item was mailed before the presumption that the item was timely received by the




                                           9
addressee may be invoked. Id. The addressee bears the burden of rebutting the
presumption of timely receipt. Id. at 1193.
      We recently examined what evidence is required for the Board to utilize the
presumption of regularity in Pinnacle Health Hospitals v. Unemployment
Compensation Board of Review, 210 A.3d 1127 (Pa. Cmwlth. 2019). In Pinnacle
Health Hospitals, the claimant applied for, and was denied, UC benefits. The
claimant then filed an appeal and a hearing was held before a referee. Pinnacle
Health, the claimant’s employer, did not appear at the hearing. Thereafter, the
referee found the claimant to be eligible for UC benefits. Pinnacle Health appealed
the referee’s decision to the Board, claiming it never received notice of the hearing
and challenged whether the notice was actually mailed. At a remand hearing, a clerk
typist for the referee (Clerk), testified as to how she processes notices of hearings.
She testified that the computer automatically generates hearing notices, which she
then prints out and stuffs into envelopes. Clerk explained that she places these
envelopes into a basket and that mailroom staff picks up these envelopes and
processes them for mailing. Clerk admitted that she does not personally place
stamps on the envelopes or place the envelopes in the mail. Relying on Clerk’s
testimony, the Board found that notice of the hearing, addressed to Pinnacle
Hospital, was placed in the regular place of mail and applied the mailbox rule’s
second presumption to presume Pinnacle Health’s timely receipt of the notice.
      On appeal we reversed, concluding that Clerk’s testimony “did not address
how and when the notices she prepares enter the mail or whether the notices receive
the proper postage prior to their mailing, as she only places mail in a basket on her
desk, which must then be picked up and further processed.” Id at 1133. We defined
the regular place of mailing for a properly addressed and posted letter, as the place



                                         10
where the item “enters the U.S. Mail, whether that be a mailbox, a post office, mail
room, or other location where a mail carrier retrieves the mail.” Id. We further
concluded that “for the Board to utilize the presumption of regularity in order to
invoke the presumption of receipt, it must present evidence regarding how properly
addressed items, with proper postage affixed, customarily enter the mail” or
demonstrate by some other means that an item was placed in the mail such as a log
that records when an item is placed in the mail. Id.
      Here, unlike in Pinnacle Health Hospitals, the fact of mailing is not in dispute.
While the employer in Pinnacle Health Hospitals claimed it had never received the
notice, Claimant admits to receiving the Notice in his personal mailbox. Since
mailing has been established by Claimant’s admitted receipt of the Notice, the Board
did not err, as a matter of law, by applying the second presumption of the mailbox
rule – that Claimant timely received the Notice. See Douglas, 151 A.3d at 1192.
The burden then shifts to Claimant to rebut the presumption of timely receipt of the
Notice. Id. at 1193. In rebuttal, Claimant asserts the Board erred by finding the
Notice was mailed on March 5, 2018, specifically. Claimant argues the Notice could
have been mailed after this date, causing its untimely delivery to him.
      In reviewing this matter, we are guided by the well-established principles that:

      [T]he Board is the ultimate fact-finder in unemployment compensation
      matters and is empowered to resolve all conflicts in evidence, witness
      credibility, and weight accorded the evidence. It is irrelevant whether
      the record contains evidence to support findings other than those made
      by the fact-finder; the critical inquiry is whether there is evidence to
      support the findings actually made. Where substantial evidence
      supports the Board[’]s findings, they are conclusive on appeal.




                                         11
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342
(Pa. Cmwlth. 2008) (citations omitted). We have previously defined substantial
evidence as “such relevant evidence which a reasonable mind might accept as
adequate to support the finding under review.” Mormak v. Unemployment Comp.
Bd. of Review, 579 A.2d 1383, 1385 (Pa. Cmwlth. 1990). “In determining whether
a finding is supported by substantial evidence, we review the record in the light most
favorable to the party in whose favor [the Board] found, giving that party the benefit
of all inferences which logically and reasonably can be drawn from the record.” Id.
Therefore, our review is limited to determining whether the Board’s finding that the
Notice was mailed on March 5, 2018, is supported by substantial evidence of record.
      Upon examination of the record, we conclude the Board’s finding is supported
by substantial evidence. The Notice states that it was mailed on March 5, 2018,
which was a Monday. While a notice of determination that indicates the date it was
mailed, by itself, is not enough to establish proof of mailing, Douglas, 151 A.3d
1193, the record here contains additional evidence to support the Board’s finding
that the Notice was mailed on March 5, 2018. The envelope in which the Notice
was mailed contains a postage meter mark dated March 5, 2018, indicating that the
envelope was mailed on said date. Claimant argues that since the Board does not
accept “‘a private postage meter mark’ to establish a date of filing . . . the same
should hold for the letters sent by the [UC] Bureau.” (Claimant’s Amended Br. at
48.) However, pursuant to Section 101.82(b)(1)(ii) of the Board’s Regulations, the
Board accepts postage meter marks to establish the date of filing an appeal if there
is no United States Postal Service (USPS) postmark. 34 Pa. Code § 101.82(b)(1)(ii).
Considering this evidence, and all logical and reasonable inferences that can be
drawn therefrom, in a light most favorable to the prevailing party, Mormak, 579 A.2d



                                         12
at 1385, a reasonable mind might accept the foregoing as adequate evidence to
support the finding that the Notice was mailed on March 5, 2018. Thus, the Board’s
finding is supported by substantial evidence. This in turn supports the Board’s
application of the presumption of timely receipt of the Notice. Claimant also asserts
he rebutted the presumption of timely receipt of the Notice with his testimony at the
remand hearing.
      At the remand hearing, Claimant testified that he did not receive the Notice
until March 19, 2018. Claimant testified that he lives in a townhouse community
with a central mailbox and that mail is sometimes delivered in the wrong box.
Claimant suggests that this could have caused a delay in the delivery of the Notice,
but acknowledges that he received the Notice in his personal box. The Board
discredited this testimony. Claimant argues the Board erred by discrediting his
testimony. However, as stated above, “the Board is the ultimate finder of fact and
arbiter of witness credibility.” Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d
667, 671 (Pa. Cmwlth. 2010). Under our precedent, this Court lacks the authority to
overturn the Board’s credibility determinations.
      As additional support for his challenge to the application of the mailbox rule,
Claimant brings to this Court’s attention the United States Court of Appeals for the
Third Circuit’s opinion in Lupyan v. Corinthian Colleges Inc., 761 F.3d 314 (3d Cir.
2014). In Lupyan, an employee took a personal leave from her job at Corinthian
Colleges Inc. (CCI), and, at the suggestion of her supervisor, visited her physician
for purposes of applying for short term disability. After the employee received the
requisite form from her physician, CCI determined the employee was eligible for
Family and Medical Leave Act13 (FMLA) leave. Thereafter, the employee met with


      13
           29 U.S.C. §§ 2601-2654.


                                         13
another supervisor, who instructed the employee to mark family and medical leave
on her request for leave form. CCI alleged that the same day as this meeting, it
mailed the employee a letter “advising her that her leave was designated as FMLA
leave, and further explaining her rights under the [FMLA].” Id. at 317. When the
employee attempted to return to work, she was advised that she was being terminated
due to, inter alia, “not return[ing] to work within the twelve weeks allotted for
FMLA leave.” Id. The employee claimed she was unaware she was on FMLA leave
and brought suit against CCI, alleging it “interfered with her rights under the FMLA
by failing to give notice that her leave fell under that Act, and that she was fired in
retaliation for taking FMLA leave.”        Id. The district court entered summary
judgment against the employee on both claims. As to the first claim, that the
employee never received notice of her rights under the FMLA, the district court
relied on evidence introduced by CCI that it mailed the employee a letter advising
her of her rights under the FMLA, and applied the mailbox rule to presume the
employee’s timely receipt of the letter.
       On appeal, the Third Circuit reversed the district court, concluding the
employee’s testimony that she did not receive the letter was enough to overcome
summary judgment and entitled the employee to a hearing to determine whether she
did in fact receive the letter. Id. at 322-23. In reaching this conclusion, the court
noted that when receipt of an item is at issue, the individual attempting to rebut the
mailbox rule’s presumption of timely receipt are “forced to prove a negative []” and
that this “elevates the weak presumption intended by the mailbox rule to a conclusive
presumption that would be equivalent to an ironclad rule.” Id. Thus, the question
of receipt, and the employee’s testimony of non-receipt, was to be placed before the
fact finder.



                                           14
       This is consistent with our decision in Volk v. Unemployment Compensation
Board of Review, 49 A.3d 38, 46 (Pa. Cmwlth. 2012). In that case, we concluded,
relevantly, that an individual challenging the presumption of receipt must be given
the opportunity to rebut the presumption at a hearing because denying an individual
the opportunity to do so “transforms the presumption of receipt into an irrebuttable
presumption.” Id. at 46-47. Here, consistent with Volk and the Third Circuit’s
decision in Lupyan, Claimant was provided an opportunity to rebut the presumption
of timely receipt at the remand hearing. Although we recognize, as did the Third
Circuit, the difficulty of proving a negative, as stated above, the Board discredited
Claimant’s testimony, and we are without authority to overturn the Board’s
credibility determinations.
       Additionally, on appeal, Claimant cites to three reports issued by USPS to
support his claim that the Notice could have been delayed. These three reports
examine the performance of USPS, including delays in processing and delivery. One
such report, entitled “Quarterly Performance for Presort First-Class Mail[,]”
examined USPS’s performance from July 1, 2018 through September 30, 2018. This
report concluded that performance for three-to-five-day first-class mail in the
Philadelphia metro area during this time period was 94.4 percent on time.14 Based
on this statistic, Claimant concludes that “approximately 6% of mail is not delivered
timely every day[]” and that this “provide[s] sufficient evidence to support the
probability of an Administrative Breakdown with either” the Board or USPS.
(Claimant’s Amended Br. at 21 (emphasis omitted)). However, these reports were
not presented to the Referee or to the Board and, therefore, are not part of the

       14
           United States Postal Service, Quarterly Performance for Presort First-Class Mail,
https://about.usps.com/what-we-are-doing/service-performance/fy2018-q4-presort-first-class-
mail-quarterly-performance.html (last visited August 5, 2019).


                                            15
certified record. As such, this Court cannot now consider these reports. Umedman
v. Unemployment Corp. Bd. of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012).
      Based on the Board’s credibility determinations, by which we are bound,
Claimant has not satisfied his burden of rebutting the presumption of timely receipt
of the Notice or the burden of demonstrating proper cause for his nonappearance at
the Hearing. Because Claimant did not demonstrate proper cause for not attending
the Hearing, the Board was required to decide the issue of the timeliness of his appeal
based on the evidence presented at the Hearing. Oritz v. Unemployment Comp. Bd.
of Review, 481 A.2d 1383, 1386 (Pa. Cmwlth. 1984). That evidence reflects that
Claimant’s appeal of the Determinations was due on February 6, 2018, and that
Claimant did not file his appeal until February 8, 2018. Accordingly, we are
constrained to affirm the Board’s dismissal of Claimant’s appeal as untimely under
Section 501(e) of the Law.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          16
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark E. McFadden,                     :
                      Petitioner      :
                                      :
                 v.                   :   No. 951 C.D. 2018
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                   ORDER


     NOW, November 21, 2019, the Order of the Unemployment Compensation
Board of Review dated June 12, 2018, is AFFIRMED.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark E. McFadden,                                  :
                             Petitioner            :
                                                   :
              v.                                   :       No. 951 C.D. 2018
                                                   :       Submitted: April 5, 2019
Unemployment Compensation                          :
Board of Review,                                   :
                    Respondent                     :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: November 21, 2019
              The majority sets forth the terms of the Unemployment Compensation
Law (Law),1 as it was construed in Narducci v. Unemployment Compensation Board
of Review, 183 A.3d 488, 490 (Pa. Cmwlth. 2018). The Law’s procedures on an
employer’s request for relief from charges raise serious due process concerns for the
claimant who has been granted unemployment benefits without knowledge that they
may be set aside later.
              Section 501(a) of the Law, 43 P.S. §821(a), requires a “prompt”
examination of, and determination on, an employee’s application for unemployment
benefits.2 The Department of Labor and Industry (Department) gives notice to the

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751 –
918.10.
2
  Section 501(a) states, in pertinent part:
        (a) The department shall promptly examine each application for benefits and on the
        basis of the facts found by it shall determine whether or not the application is valid.
        Notice shall be given by the department in writing to the claimant and each base-
        year employer of the claimant, stating whether or not the claimant is eligible under
applicant’s employer of its former employee’s application. The employer may
intervene to oppose the application with relevant information. The employer may,
for example, take the position that the applicant is not eligible by reason of his
misconduct or voluntary resignation. If benefits are granted, the employer may
appeal that decision.
              On the other hand, the employer may decide to do nothing upon
receiving the Department’s notice of the claimant’s application for benefits. Later,
even years later, the employer may file a request for relief from charges pursuant to
Section 302.1 of the Law, 43 P.S. §782.1,3 and seek to set aside the claimant’s receipt
of unemployment benefits. See, e.g., Ruffner v. Unemployment Compensation
Board of Review, 172 A.3d 91 (Pa. Cmwlth. 2017). If the Department grants the
employer relief from charges, the Department revokes its prior grant of
unemployment benefits. It then seeks recoupment from the claimant under Section
804 of the Law, 43 P.S. §874, for the benefits he has collected.
              The Department deals with the competing requirements in the statutory
scheme by treating the Section 501 requirement for a “prompt” examination and
“determination” on an application for benefits as not triggered unless, or until, the
employer either contests the application or seeks a relief from charges. To that end,
the Department calls the award of benefits a “determination of financial eligibility,”
as opposed to an “official” determination issued pursuant to Section 501 of the Law.
This is a fine line distinction that will escape the understanding of most claimants as
well as their lawyers.


        section four hundred and one (a), and, if declared eligible thereunder, the weekly
        benefit rate and the maximum amount of compensation payable[.]
43 P.S. §821(a).
3
  Section 302.1 of the Law was added by the Act of June 17, 2011, P.L. 16, 43 P.S. §782.1.
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             Section 501 of the Law gives both the claimant and the employer an
opportunity to be heard on an application for unemployment benefits. Section 501
requires a prompt and final decision on the validity of an application for benefits.
Neither occurs if the employer is silent and bides its time until it learns of the impact
on its contribution rate. Then it can seek relief from charges under Section 302.1 of
the Law, 43 P.S. §782.1. Effectively, the Department has allowed Section 501 to be
gutted by Section 302.1 of the Law. This leaves claimants in limbo on whether they
are entitled to the benefit checks they receive without objection from either the
employer or the Department.
             I question Narducci, 183 A.3d 488, and whether the Department’s
“non-official” grant of benefits via a “determination of financial eligibility”
comports with Section 501 of the Law. However, the claimant in this case has not
challenged the Department’s implementation of Section 501 and, thus, I am
constrained to join the panel. I write separately to express the concerns recited
herein.
                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge




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