           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Lark,                                :
                                          : No. 1063 C.D. 2015
                           Petitioner     : Submitted: October 30, 2015
                                          :
                     v.                   :
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                                          :
                           Respondent     :


BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                               FILED: January 22, 2016

               Adam Lark (Claimant) petitions for review, pro se, of the May 22, 2015,
order of the Unemployment Compensation Board of Review (UCBR) affirming the
decision of a referee to dismiss Claimant’s appeal as untimely under section 501(e) of
the Unemployment Compensation Law (Law).1 We vacate and remand for further
proceedings.


               Claimant filed a claim for unemployment compensation benefits on
February 11, 2015. (R. Item No. 2.) On February 25, 2015, the Department denied
Claimant’s request for benefits under section 402(e) of the Law, 43 P.S. §802(e),

      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e). Section 501(e) of the Law provides that an appeal from a Department of Labor and
Industry (Department) determination must be filed within 15 days of the determination.
finding that Claimant was discharged from work for willful misconduct. (Findings of
Fact, No. 1; R. Item No. 7.)2 The Department mailed the February 25, 2015, notice of
determination (Notice) on that date to Claimant’s last known post office address.
(Findings of Fact, No. 2.) The postal authorities did not return the Notice to the
Department as undeliverable. (Id., No. 3.) In the Notice, the Department informed
Claimant that he had 15 days from the date of the Notice to file an appeal. (Id., No.
4.) The last day on which Claimant could file a timely appeal was March 12, 2015.
(Id.) Claimant did not file his appeal to the referee until March 16, 2015. (Id., No.
5.) Claimant was neither misinformed nor misled regarding the right of or need to
appeal. (Id., No. 6.)


                 The referee held a hearing on April 6, 2015, wherein Claimant testified
that he attempted to file his appeal by facsimile and by email on March 11, 2015, and
that he called the Erie service center to report that he was attempting to file his appeal
but was having difficulty. Claimant further testified that because his initial electronic
filing attempts were unsuccessful, he mailed his appeal to the Department on March
11, 2015, one day before the appeal deadline.3 The referee concluded, however, that



       2
          The UCBR adopted and incorporated the referee’s findings of fact and conclusions of law
in their entirety.

       3
           Claimant testified as follows:

       [I]t was March 11th. It was the date just before the [a]ppeal deadline. So, after that I
       called Unemployment. I was on hold for about a half an hour. I spoke to a
       gentleman. I said I’m trying to use your website to submit the [a]ppeal. It’s not
       working. I’m constantly trying to fax it over. He told me, well, if they do get busy
       over there keep on processing it. . . . [H]e said you can also mail it and make sure
       you get the postmark. So, that same day I kept faxing and I took it to the post office.
(Footnote continued on next page…)
                                                  2
because Claimant’s appeal was not filed until March 16, 2015, it was untimely under
section 501(e) of the Law.


              Claimant appealed to the UCBR, which affirmed. The UCBR found that
“the only appeal on record was filed by mail post-marked [sic] March 16, 2015, after
the appeal deadline.” (UCBR’s Order at 1.) The UCBR further stated that “[a] party
attempting to file an appeal by fax or email is responsible for any delay, disruption, or
interruption of electronic signal[] and bears the risk that the appeal may not be timely
or properly filed.” (Id.) Claimant now appeals from that decision.4


              On appeal, Claimant asserts that the UCBR erred in concluding that his
appeal was untimely under section 501(e) of the Law.                   Specifically, Claimant
challenges the UCBR’s determination that his appeal was postmarked March 16,
2015. Claimant maintains that the United States Postal Service (USPS) postmark
date was March 11, 2015, one day before the appeal deadline. In its brief, the UCBR
concedes that March 16, 2015, is the date the Department received the appeal, not the
date of the USPS postmark. (UCBR’s Br. at 4-5; see R. Item No. 8 at 2a.) However,




(continued…)

(N.T., 4/6/15, at 6.) When counsel asked Claimant to clarify when he mailed the appeal, Claimant
replied, “I don’t remember the date, but I know for a fact that I took it the day before the final
[a]ppeal date to file.” (Id.)

       4
         Because Claimant had the burden of proving the timeliness of his appeal and was the only
party to present evidence at the hearing, our review is limited to determining whether the UCBR
capriciously disregarded competent evidence, whether constitutional rights were violated, or
whether the UCBR committed an error of law. Wright v. Unemployment Compensation Board of
Review, 41 A.3d 58, 62 n.5 (Pa. Cmwlth. 2011) (en banc).

                                                3
the UCBR asserts that pursuant to its regulations, it was required to use the date of
receipt as the date of filing because the USPS postmark is illegible.


             The UCBR’s regulations provide that when an appeal is filed by mail,
the filing date is determined by, inter alia, the official USPS postmark on the
envelope containing the appeal. 34 Pa. Code §101.82(b)(1)(i). If there is no USPS
postmark, then the filing date is the date of the postage meter mark on the envelope.
34 Pa. Code §101.82(b)(1)(ii). If the filing date cannot be determined by either of
those methods, then the filing date is the date recorded by the Department as the date
it receives the appeal. 34 Pa. Code §101.82(b)(1)(iii).


             Here, it is undisputed that Claimant’s appeal envelope bears an official
USPS postmark and, as the UCBR concedes, the postmark date was not March 16,
2015. Although the UCBR asserts in its brief that the postmark date is illegible,
neither the referee nor the UCBR made such a finding.            Moreover, the record
inexplicably contains only a photocopy of Claimant’s appeal envelope rather than the
original envelope. Because the USPS postmark was placed directly on top of the
postage stamp, this court cannot discern the date of the postmark from the photocopy.
Therefore, we must remand to the UCBR for a determination as to the official USPS
postmark date.


             Additionally, if the UCBR is unable to determine the USPS postmark
date because the referee failed to retain Claimant’s original appeal envelope, then the
UCBR must make findings of fact and credibility determinations as to Claimant’s




                                           4
testimony regarding the mailing of his appeal to the referee.5 See Cumberland Valley
Animal Shelter v. Unemployment Compensation Board of Review, 881 A.2d 10, 13
(Pa. Cmwlth. 2005) (concluding that the UCBR properly considered the testimony of
the claimant and her husband regarding the date of mailing “because the record
reflects that [the] [c]laimant’s inability to prove the timeliness of her appeal . . . [was]
due solely to the referee’s failure to retain [the] [c]laimant’s original envelope or
date-stamp [the] [c]laimant’s appeal”); see also Wright v. Unemployment
Compensation Board of Review, 41 A.3d 58, 67 (Pa. Cmwlth. 2011) (en banc)
(holding that the UCBR erred in disregarding uncontroverted evidence showing that
the claimant timely faxed his appeal where the faxed appeal document was not in the
certified record).6

       5
          We note that the certified record does include the original envelope that contained
Claimant’s appeal to the UCBR from the referee’s decision. (R. Item No. 14.) On that envelope,
the official USPS postmark is adjacent to the postage stamp, so the postmark date is clearly
readable. (See id.) Claimant’s appeal to the UCBR was postmarked on April 16, 2015, and the
UCBR received it on April 20, 2015 (see id.), establishing a four-day delay between the date
Claimant mailed the appeal and the date the UCBR received it. The record shows that Claimant
mailed both his appeal to the referee and his appeal to the UCBR from the same post office in
Philadelphia. (See id.; R. Item No. 8 at 2a.) Therefore, it is conceivable that Claimant could have
mailed his appeal to the referee by the filing deadline of March 12, 2015, even though the
Department did not receive it until March 16, 2015.

       6
           The Wright court explained:

       At a hearing on timeliness, where the [UCBR’s] record does not include an appeal
       [document] that the claimant claims he or she filed, a claimant can only establish the
       steps the claimant took to lodge a timely appeal. The claimant does not have within
       his or her power the ability to explain why the appeal [document] in question is not
       in the [UCBR’s] record. It was, therefore, appropriate and proper for the [r]eferee to
       consider [the] [c]laimant’s evidence to determine whether, though not in the
       [UCBR’s] record, [the] [c]laimant filed an earlier, timely appeal . . . . And . . . it was
       error for the [UCBR] to disregard that evidence without explanation.

41 A.3d at 64.

                                                   5
             Accordingly, we vacate the UCBR’s order and remand this matter to the
UCBR for findings of fact and credibility determinations on the issue of the
timeliness of Claimant’s mailing of his appeal to the referee.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                           6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Lark,                                :
                                          : No. 1063 C.D. 2015
                          Petitioner      :
                                          :
                   v.                     :
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                                          :
                          Respondent      :



                                       ORDER


             AND NOW, this 22nd day of January, 2016, we hereby vacate the May
22, 2015, order of the Unemployment Compensation Board of Review and remand
this matter for further proceedings consistent with the foregoing opinion.


             Jurisdiction relinquished.




                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge
