            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Malaney,                                    :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 460 C.D. 2014
                                                 : Submitted: August 8, 2014
Unemployment Compensation                        :
Board of Review,                                 :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                            FILED: September 2, 2014

                 Gary Malaney (Claimant), pro se, petitions for review of the January
31, 2014 order of the Unemployment Compensation Board of Review (Board)
affirming the dismissal of his appeal of a denial of benefits as untimely pursuant to
Section 501(e) of the Unemployment Compensation Law.1 We affirm.
                 In early September 2013, Claimant, a 67-year-old pipefitter, filed a
claim for unemployment benefits stating that he left his employment with Monroe
Energy LLC (Employer) on August 9, 2013, and that his reason for leaving this
employment was “retirement.” (Record Item (R. Item) 2, Internet Initial Claims
Application at 1-3.) Although the claims application asked Claimant to supply

1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
“any additional information that you feel may affect your eligibility for
unemployment compensation,” Claimant did not set forth any information
concerning the reasons for or circumstances surrounding his retirement. (Id. at 4.)
             On September 20, 2013, the Unemployment Compensation Service
Center issued a Notice of Determination concluding that Claimant was ineligible
for benefits under Section 402(b) of the Unemployment Compensation Law
because he had voluntarily retired and had not shown a necessitous and compelling
reason for leaving his employment. (R. Item 9, Referee’s Decision Finding of Fact
(F.F.) ¶1; R. Item 4, Notice of Determination.) This Notice of Determination was
mailed to Claimant on September 20, 2013 and specifically advised him:

                           APPEAL INSTRUCTIONS
             The last date to appeal to this determination is: October 7,
             2013.
             Under Section 501(e) of the Pennsylvania Unemployment
             Compensation Law, this determination becomes final unless
             an appeal is timely filed. If you disagree with this
             determination and wish to file an appeal, your appeal must be
             filed on or before the last day to appeal shown on this
             determination.
(R. Item 9, Referee’s Decision F.F. ¶¶2, 4; R. Item 4, Notice of Determination
(emphasis in original).)
             Claimant received the Notice of Determination and was aware of the
October 7, 2013 appeal deadline, but did not file an appeal on or before October 7,
2013.   (R. Item 9, Referee’s Decision F.F. ¶5; R. Item 8, Referee Hearing
Transcript (H.T.) at 1-2; Petitioner’s Br. at 8.) On October 8, 2013, one day after
the appeal deadline, Claimant filed an appeal from the Service Center’s denial of
benefits, stating as the grounds for appeal that Employer had “downsized.” (R.

                                         2
Item 9, Referee’s Decision F.F. ¶5; R. Item 5, Claimant’s Petition for Appeal from
Determination.) Because Claimant’s appeal was filed late, the referee held a
hearing limited to the issue of the timeliness of Claimant’s appeal. (R. Item 7,
Notice of Hearing; R. Item 8, H.T. at 1.) At this hearing, Claimant was given the
opportunity to explain the reasons that his appeal was filed beyond the October 7,
2013 deadline, and testified as follows:

             I just didn’t think we would be able to get it so I figured well
             why go through all this and then two days after – a few days
             before I actually submitted it I found out I could put it in. I
             could be eligible for unemployment for the reasons there and
             so I submitted it. I realized it was late but I figured well I may
             as well do it anyway and see what happens.
(R. Item 8, H.T. at 1-2.)
             Following this hearing, the referee issued a decision on November 6,
2013, dismissing Claimant’s appeal as untimely and making the following findings
of fact:

             1. On September 20, 2013, a determination was issued
             disqualifying the claimant for unemployment compensation
             benefits.

             2. A Copy of this determination was mailed to the claimant’s
             last known post office address on the above date.

             3. The Notice of Determination was not returned by the postal
             authorities as being undeliverable.
             4. The Notice of Determination informed the claimant that
             there were fifteen (15) days from the date of that
             determination in which to file an appeal if the claimant
             disagreed with the determination. The last day on which a
             valid appeal could be filed from that determination was
             October 7, 2013.


                                           3
              5. The claimant did not file an appeal on or before October 7,
              2013, but waited until October 8, 2013.

              6. The claimant was not misinformed nor in any way misled
              regarding the right of appeal or the need to appeal.
(R. Item 9, Referee’s Decision.)           On November 21, 2013, Claimant timely
appealed the referee’s decision to the Board. The Board, on January 31, 2014,
affirmed the referee’s dismissal of Claimant’s appeal and adopted and incorporated
the referee’s findings of fact and conclusions.             (R. Item 12, Board Order.)
Claimant timely filed a petition for review appealing the Board’s order to this
Court.2
              An appeal from a Service Center’s determination of eligibility or
ineligibility for benefits must be filed within fifteen days of the date that the Notice
of Determination was mailed. 43 P.S. § 821(e); 34 Pa. Code § 101.82(a); Russo v.
Unemployment Compensation Board of Review, 13 A.3d 1000, 1002 (Pa. Cmwlth.
2010); Pennsylvania Turnpike Commission v. Unemployment Compensation Board
of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009); Vereb v. Unemployment
Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en
banc); Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235,
1237 (Pa. Cmwlth. 1993). This fifteen-day time limit is mandatory and cannot be
extended as a matter of grace or indulgence, even by a single day. Russo, 13 A.3d
at 1003; Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194,

2
  Our review is limited to determining whether the Board’s adjudication is in violation of
constitutional rights, whether an error of law was committed, whether the factual findings are
supported by substantial evidence, and whether the Board capriciously disregarded competent
evidence on issues as to which Claimant bore the burden of proof. 2 Pa. C.S. § 704; Bennett v.
Unemployment Compensation Board of Review, 33 A.3d 133, 136 n.3 (Pa. Cmwlth. 2011) (en
banc); Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review,
991 A.2d 971, 973 n.2 (Pa. Cmwlth. 2009).


                                              4
197-98 (Pa. Cmwlth. 2008); Vereb, 676 A.2d at 1292-95. “An appeal filed one day
after the 15–day appeal period is untimely.” Hessou, 942 A.2d at 198. Failure to
file an appeal within fifteen days is a jurisdictional defect that bars consideration of
any claim of error in the Service Center’s determination, unless the appellant
proves that the delay in the appeal was due to extraordinary circumstances, such as
a breakdown in the administrative process or circumstances beyond appellant’s
control which prevented timely filing of the appeal. Russo, 13 A.3d at 1002-03;
Pennsylvania Turnpike Commission, 991 A.2d at 974; Vereb, 676 A.2d at 1292,
1294-95; Darroch, 627 A.2d at 1237-38.
              The Board properly held that Claimant’s appeal was barred as
untimely.    The Board found that the Notice of Determination was mailed to
Claimant on September 20, 2013, that it was mailed to Claimant’s correct address,
and that it was not returned by the postal authorities as undeliverable. (R. Item 12,
Board Order; R. Item 9, Referee’s Decision F.F. ¶¶1-3.) The Board further found
that the Notice of Determination clearly advised Claimant that any appeal must be
filed by October 7, 2013 and that Claimant did not file his appeal until October 8,
2013, more than fifteen days after the Notice of Determination was mailed to him.
(R. Item 12, Board Order; R. Item 9, Referee’s Decision F.F. ¶¶4-5.) These
findings are all supported by substantial evidence.          (R. Item 4, Notice of
Determination; R. Item 5, Claimant’s Petition for Appeal from Determination
(showing envelope postmark of October 8, 2013); R. Item 8, H.T. at 1-2.) Indeed,
Claimant admits that he received the Notice of Determination and that he knew
that he filed his appeal beyond the appeal deadline. (R. Item 8, H.T. at 1-2;
Petitioner’s Br. at 8.)




                                           5
               Claimant argues that his appeal should not have been dismissed
because his failure to timely appeal was due to a conversation that he allegedly had
with the Service Center after he received the Notice of Determination.                        This
argument is without merit. While misleading information from unemployment
compensation representatives can constitute extraordinary circumstances that
permit consideration of a late appeal, Hessou, 942 A.2d at 198, the Board found
that Claimant “was not misinformed nor in any way misled regarding the right of
appeal or the need to appeal.” (R. Item 12, Board Order; R. Item 9, Referee’s
Decision F.F. ¶6.) This finding is amply supported by the record. At the hearing
before the referee, Claimant did not claim that he had any conversation with the
Service Center and testified only that he subjectively did not think that his claim
for benefits was likely to succeed. (R. Item 8, H.T. at 1-2.)3 Moreover, Claimant’s
testimony shows that any misunderstanding he had concerning his eligibility did
not prevent him from filing a timely appeal. Claimant testified at the referee’s
hearing that he learned the information that led him to file his one-day late appeal
“a few days before I actually submitted it.” (Id. at 1.)
               Claimant also argues that other similarly situated claimants who
retired from Employer have received benefits and that the Service Center should
have known that he was entitled to benefits under our Supreme Court’s decision in


3
  Claimant did not assert that his late appeal was caused by a conversation with the Service
Center until after the referee hearing, making this claim for the first time in an attachment to his
appeal to the Board. (R. Item 10, Claimant’s Petition for Appeal from Referee’s Decision.) The
Board cannot consider such post-hearing factual communications as evidence in making its
determination. Han v. Unemployment Compensation Board of Review, 42 A.3d 1155, 1157 (Pa.
Cmwlth. 2012); Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa.
Cmwlth. 1995) (en banc); Tener v. Unemployment Compensation Board of Review, 568 A.2d
733, 737-38 (Pa. Cmwlth. 1990).


                                                 6
Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209 (Pa. 2012)
(holding that employees accepting early retirement as part of employer workforce
reduction plans can be eligible for unemployment compensation under the
“voluntary layoff option” proviso of Section 402(b) of the Unemployment
Compensation Law). Because Claimant’s appeal was untimely, neither of these
contentions is relevant here. As explained above, Claimant’s failure to file a
timely appeal bars the Board and this Court from considering the merits of
Claimant’s arguments that he is entitled to benefits. Vereb, 676 A.2d at 1292,
1294-95; Darroch, 627 A.2d at 1237-38. Claimant does not contend that he has
been treated differently from other claimants with respect to appeal requirements
or deadlines.4
               Because the Board correctly concluded that Claimant’s appeal from
the denial of benefits was barred as untimely, we affirm the Board’s decision in
this matter.




                                             ____________________________________
                                             JAMES GARDNER COLINS, Senior Judge




4
  Moreover, Claimant’s contention that the Service Center had notice that Diehl applied to his
claim is not even supported by the record. Claimant’s application for benefits indicated only that
he had retired, not that his retirement was part of any workforce reduction or plan by Employer.
(R. Item 2, Internet Initial Claims Application at 1-4.)


                                                7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Malaney,                        :
                                     :
                 Petitioner          :
                                     :
           v.                        : No. 460 C.D. 2014
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                 Respondent          :


                                 ORDER


           AND NOW, this 2nd day of September, 2014, the order of the
Unemployment Compensation Board of Review in the above matter is affirmed.




                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
