                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beatrice G. Rosario,                            :
                                Petitioner      :
                                                :
                         v.                     :
                                                :
Unemployment Compensation                       :
Board of Review,                                :   No. 1394 C.D. 2018
                    Respondent                  :   Submitted: March 15, 2019

BEFORE:            HONORABLE P. KEVIN BROBSON, Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: May 22, 2019

                   Beatrice G. Rosario (Claimant) petitions this Court, pro se, for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) August 16, 2018
order affirming the Referee’s decision dismissing Claimant’s appeal as untimely.
The sole issue before this Court is whether the UCBR properly dismissed Claimant’s
appeal under Section 501(e) of the UC Law (Law).1 After review, we affirm.
                   On July 20, 2016, the Allentown UC Service Center issued three
determinations: (1) denying Claimant UC benefits;2 (2) establishing a $5,814.00 fault

          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).
          2
         Claimant was denied UC benefits under Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1),
because Claimant answered in both her UC questionnaire and during her oral interview that she
could not work per doctor’s orders, as of her last day of work. See Certified Record (C.R.) Item 2
(Claimant Questionnaire) at 1; C.R. Item 3 (Claimant’s Record of Oral Interview) at 1. Further,
during the oral interview, Claimant was advised: “I have to make you aware that you may be
overpaid for benefits you received. Being able to work and available for work is a requirement to
collect [UC].” C.R. Item 3 (Claimant’s Record of Oral Interview) at 1. Moreover, in her brief to
this Court, Claimant stated that she “had a doctor’s note that determined she was unable to return to
work and prevented her from suitable work beginning weeks ending 12/19/2015.” Claimant Br. at
7.
overpayment; and (3) imposing seventeen penalty weeks and an $872.10 penalty
(collectively, Determinations). Claimant received the Determinations, which notified
her that August 4, 2016, was the final day to file an appeal from the Determinations
to a Referee. In late November 2016, the Commonwealth of Pennsylvania announced
it would close the Allentown UC Service Center.                   On December 2, 2016, the
Department of Labor and Industry (Department) mailed Claimant a billing statement
for her overpayment. In December 2016, the Allentown UC Service Center closed.
               On July 6, 2017, the Department mailed Claimant an amnesty notice for
her overpayment.3 On August 29, 2017, the Department mailed Claimant a second
amnesty notice for her overpayment. On October 12, 2017, the Department mailed
Claimant a billing statement for her overpayment.                 On November 2, 2017, the
Department mailed Claimant notice that her tax refund would be withheld to repay
her outstanding overpayment.            On December 3, 2017, the Department mailed
Claimant a billing statement for her overpayment.                   On January 8, 2018, the
Department mailed Claimant a billing statement for her overpayment.
               On January 30, 2018, Claimant attempted to mail an appeal from the
Determinations to the Allentown UC Service Center, but it was returned as
undeliverable. Claimant filed her appeal from the Determinations on February 15,
2018 by mail to the Harrisburg UC Service Center. A Referee hearing was held on
April 2, 2018. On April 4, 2018, the Referee dismissed the appeal as untimely.
Claimant appealed to the UCBR. On August 16, 2018, the UCBR affirmed the
Referee’s decision. Claimant appealed to this Court.4


       3
         “The UC Amnesty Program was established to give eligible claimants and employers an
opportunity to make payments on delinquent accounts at a reduced rate, satisfying their liability and
preventing any additional penalties or action. The Amnesty Program [ran] from July 1, 2017 until
September 30, 2017.” https://www.uc.pa.gov/UC Amnesty (last visited May 21, 2019).
       4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
                                                 2
              Initially,

              [f]ailure to file a timely appeal as required by Section
              501(e) of the Law is a jurisdictional defect. The time limit
              for a statutory appeal is mandatory; it may not be extended
              as a matter of grace or indulgence. To justify an exception
              to the appeal deadline, [a c]laimant must demonstrate that
              h[er] delay resulted from extraordinary circumstances
              involving fraud, a breakdown in the administrative process,
              or non-negligent circumstances relating to [the c]laimant
              h[er]self. This is an extremely heavy burden.

Carney v. Unemployment Comp. Bd. of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth.
2018) (citations omitted).
              Claimant first argues:

              [Claimant] did receive the [D]eterminations, which notified
              her that August 4, 2016, was the final day to file a valid
              appeal to a [R]eferee, and filed an appeal before the
              deadline of August 4, 2016. [Claimant] did not receive any
              communication from the Department . . . that the appeal
              was not received before or even after the deadline, but the
              Department . . . had no problems sending many letters six
              (6) months after the Allentown office closed. [Claimant]
              made several calls to confirm receipt of Appeal but was
              unsuccessful because the Department . . . did not answer or
              return any of her telephone calls. [Claimant] was kept on
              the phone for [sic] unusually long time without any
              answers.

Claimant Br. at 9.
              This Court has held that “the absence of an appeal document in the
[UCBR’s] record creates, at best, an inference that the [UCBR] did not receive the
document and, therefore, that it was not filed.” Bennett v. Unemployment Comp. Bd.
of Review, 33 A.3d 133, 137 (Pa. Cmwlth. 2011). Further, “[i]n [UC] proceedings,
the [UCBR] is the ultimate fact finder, and it is empowered to resolve all conflicts in

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                               3
the evidence and to determine the credibility of witnesses.”          Umedman v.
Unemployment Comp. Bd. of Review, 52 A.3d 558, 562 (Pa. Cmwlth. 2012) (quoting
Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth.
2008)). “This Court’s review of a decision by the [UCBR] does not permit it to
reweigh the evidence or substitute its own findings for those made by the [UCBR].”
Chartiers Cmty. Mental Health & Retardation Ctr. v. Unemployment Comp. Bd. of
Review, 134 A.3d 1165, 1173 (Pa. Cmwlth. 2016).
            Here, the UCBR discredited Claimant’s testimony that she filed a timely
appeal. Specifically, the UCBR determined:

          Had [] [C]laimant obtained a certificate of mailing or
          certified mail receipt, she would have evidence of this
          timely filing. [] [C]laimant did not and, under these
          circumstances, her testimony, alone, cannot evidence timely
          filing and the [UCBR] discredits her assertion that she filed
          a timely appeal.
UCBR Dec. at 2. This Court discerns no error in the UCBR’s ruling.
            Claimant next asserts:
            After receiving billing statements in July 2017 through
            January 2018, including a notice that [C]laimant[’s] tax
            refund would be withheld to repay overpayment, and with
            no[] where else to turn, on January 30, 2018, [C]laimant
            mailed another appeal letter to the Allentown [UC]
            Center after no response from the Department . . . for
            extended period of time. The second appeal letter was
            returned to Claimant as undeliverable. Claimant called
            [the] Department . . . several times again, but did not
            receive any answers or return calls from anyone within the
            [D]epartment. [Claimant] was kept on the phone for hours
            without any answers. After months of frustration, no
            response and no assistance from the Department . . . about
            where to obtain service for clients of the Allentown UC
            [Service Center] office, finally on February 15, 2018,
            [C]laimant filed yet another appeal to the Harrisburg UC
            [Service Center].



                                         4
Claimant Br. at 10 (emphasis added). The UCBR explained:
              [T]he Commonwealth did not announce the closure of the
              Allentown UC [Service Center] until late November 2016
              and it did not close until December 2016. If [] [C]laimant
              had filed an appeal by August 4, 2016, the closure of the
              Allentown UC [Service Center] would have had no impact
              on the recording or retention of her appeal. Because []
              [C]laimant had control over the method of appeal she chose
              and the ability to present documentary evidence of [a]
              timely appeal, the lack of this competent evidence does not
              justify a timely [sic] appeal.[5]
              Even if [] [C]laimant’s receipt of appeal was impacted by
              the closing of the Allentown UC [Service Center], the
              Department sent to [] [C]laimant seven other notices
              pertaining to her overpayment, and she received at least the
              January 8, 2018, notice and did not properly file an appeal
              until at least several weeks later, and that gives []
              [C]laimant the benefit of the doubt for mailing her appeal to
              a closed UC [Service Center]. This unexplained delay
              negates whatever justification [] [C]laimant would have had
              for her late appeal.

UCBR Dec. at 2-3. Indeed, Claimant admitted she received the Department’s July
2017 through January 2018 statements, but did not write a second appeal letter until
January 30, 2018 (albeit to the closed UC Service Center). Accordingly, because
Claimant did not meet her heavy burden of proving that her delay resulted from
extraordinary circumstances involving fraud, a breakdown in the administrative
process, or non-negligent circumstances relating to Claimant, the UCBR properly
dismissed her late appeal.
              For all of the above reasons, the UCBR’s order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge

       5
         Section 101.82 of the Department’s Regulations provides that a party may file a written
appeal by United States mail, common carrier, fax transmission, other electronic transmission (i.e.,
email) or personal delivery. See 34 Pa. Code § 101.82.
                                                 5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beatrice G. Rosario,                   :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 1394 C.D. 2018
                    Respondent         :


                                     ORDER

            AND NOW, this 22nd day of May, 2019, the Unemployment
Compensation Board of Review’s August 16, 2018 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
