          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melissa N. Walker,                             :
                              Petitioner       :
                                               :
                      v.                       :   No. 787 C.D. 2019
                                               :   SUBMITTED: March 26, 2020
Unemployment Compensation Board                :
of Review,                                     :
                    Respondent                 :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ELLEN CEISLER, Judge (P.)
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                            FILED: April 27, 2020


               Melissa N. Walker, Claimant, petitions for review of the order of the
Unemployment Compensation Board of Review dismissing her appeal from the
Referee’s decision as untimely under Section 502 of the Unemployment
Compensation Law (Law).1
               The facts are as follows. Claimant initially filed her claim against her
former employer, Lillian’s Care, Inc. (Employer) on February 27, 2018. (Certified
Record “C.R.,” Item 1.) Employer requested relief from charges asserting that
Claimant’s separation was voluntary. (C.R., Item 2.) On November 14, 2018, the
Department of Labor and Industry, Bureau of Unemployment Compensation



   1
       Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Benefits sent a letter with questionnaires to Claimant, due November 21, 2018.
(C.R., Item 3.)
                 On January 9 and 10, 2019, the Department issued determinations
denying benefits pursuant to Section 402(b)2 of the Law and assessing a fault
overpayment against Claimant pursuant to Section 804(a) of the Law.3 (C.R., Item
4.) The final dates to appeal these determinations were January 23 and 25, 2019,
respectively. (Id.) Claimant filed an appeal from the Department’s determinations
on February 7, 2019, and a referee conducted a hearing. (C.R., Items 5-8.)
                 On March 13, 2019, the referee issued a decision which dismissed
Claimant’s appeal as untimely pursuant to Section 501(e) of the Law.4 (C.R., Item
9.) A copy of the referee’s decision was mailed to Claimant at her last known post
office address at that time. (Id.) The decision was accompanied by a notice stating
that interested parties had fifteen days in which to file a valid appeal. (Id.) There is
no indication that the decision mailed to Claimant was returned by the postal
authorities as undeliverable. (See C.R.) Thus, in order to be timely, Claimant’s
appeal needed to be filed on or before March 28, 2019. (C.R., Item 9.) Claimant’s
appeal was filed on April 19, 2019. (C.R., Item 10.)
                 The Board sent Claimant a letter on April 25, 2019 notifying her that
her appeal was filed more than fifteen days after the referee’s decision was mailed
and that:
                 If you believe that you filed your appeal within the fifteen
                 (15) day period or that it should be deemed timely or other
                 reasons, you must request in writing that a hearing be
                 scheduled to allow you the opportunity to set forth your

    2
        43 P.S. § 802(b).

    3
        43 P.S. § 874(a).

    4
        43 P.S. § 821(e).

                                              2
              reasons as to why you believe your appeal was timely
              filed. . . . Unless the Board receives a reply, specifically
              requesting a hearing on the timeliness issue,
              postmarked by May 10, 2019, it will proceed to issue an
              appropriate order. This may result in the dismissal of your
              appeal, in which case the Referee’s decision becomes final
              and binding on all parties.

[C.R., Item 14 (emphasis in original).] Claimant sent a written response (by fax) to
the Board stating, “I, Melissa Walker, would like to appeal my court hearing I have
a [sic] excuse. Please if you have any question please call, Melissa [W]alker at
[phone number].” (C.R., Item 12.)              On May 31, 2019, the Board dismissed
Claimant’s appeal as untimely under Section 502 of the Law. (C.R., Item 13.)5


    5
      A letter from Claimant dated June 6, 2019, after the Board’s decision and order, stated as
follows:

              My name is Melissa Walker, I am writing you about my
              unemployment case that was filed. But later on in the following year
              was brought up to unemployment that I quit my job. Which was a
              lie that came from the company that I worked for which was shut
              down for almost a year.

              I am writing to appeal and to ask for you to reconsider your decision
              that have [sic] been made about my case. Please this is my first time
              ever going through something like this[.] The reason why I was late
              with my Appeal is because of the Mailman[.] I was receiving all my
              mail late or it was either in someone else's Mail box. I have been
              trying to state my point many of times but it seem like I was filling
              out things and sending letters that was [sic] not written the correct
              way. Please consider a hearing for me please! I am new to this type
              of situation this is not only for me it's for my family. I have a future
              that I am trying to create and with this being held over my head
              would not look good at all. Also I am employed now been employed
              for almost a year. However unemployment made a lot of mistakes
              on their [sic] behalf and the employer I was working for and I would
              like to handle this in a professional manner. Which would be a
              hearing, my Mail is always late I even have bills that I was late on


                                                 3
               Claimant petitions for review from the Board’s decision and order,
raising the following issue: “Did the Board err in dismissing [her] appeal for
untimeliness under Section 502 of the Law?” (Claimant’s Br. at 6.) Claimant argues
that she did not have to use “specific language or a designated phrase” in complying
with the requirement that she request a hearing. 6
               Under Section 502 of the Law, an appeal to the Board must be filed
“within fifteen days after the date of [the referee’s] decision . . .” or the referee’s
decision “shall be deemed a final decision of the Board.” 43 P.S. § 822. This fifteen-
day appeal period is mandatory; if an appeal is not timely filed within the specified
period of time, the determination becomes final and the Board does not have
jurisdiction to consider the matter. Shea v. Unemployment Comp. Bd. of Review,
898 A.2d 31, 33 (Pa. Cmwlth. 2006). The Board’s regulations provide as follows:

               If an appeal from a decision of the Department . . . appears
               to have been filed beyond the applicable time limit, the
               tribunal shall advise the appealing party in writing that it
               appears not to have a [sic] jurisdiction because of the late
               filing, and that the appeal . . . will be dismissed without a
               hearing unless the appealing party notifies the tribunal in
               writing within the succeeding [fifteen] days from the date
               of such notice, that he contends the appeal or application
               for further appeal was timely filed and that he desires a
               hearing. If no reply from the appealing party is received
               within the [fifteen]-day period, or if the appealing party
               does not request a hearing, the tribunal shall dismiss the
               appeal or application for further appeal.


               also because of this situation. Therefore could you please reconsider
               your decision I would really appreciate it.
(C.R., Item 14.)

    6
    As the issue raised is a question of law, we exercise plenary review. Powell v. Unemployment
Comp. Bd. of Review, 157 A.3d 884, 890 (Pa. 2017).



                                                4
34 Pa. Code § 101.61(a) (emphasis added).
             Claimant asserts that her case differs from Han v. Unemployment
Compensation Board of Review, 42 A.3d 1155 (Pa. Cmwlth. 2012), which was relied
upon by the Board in its decision and is cited again in its brief to this Court. In Han,
the claimant sent a written response to a similar letter from the Board, but did not
request a hearing on the timeliness of his appeal. Id. at 1156. This Court relied upon
Section 502 of the Law and 34 Pa. Code § 101.61 in concluding that the claimant
had failed to timely appeal the referee’s decision within fifteen days and had failed
to request a hearing on the issue of timeliness. Id. The difference between her case
and Han, Claimant argues, is that Claimant requested a chance to explain her reason
for a late appeal. (Claimant’s Br. at 13.)
             Claimant likens this case to that described in the unreported decision in
Phillips v. Unemployment Compensation Board of Review, (Pa. Cmwlth., Nos. 1191-
1198 C.D. 2016, filed May 12, 2017), in which the claimant requested a “chance to
state [her] case,” Id., slip op. at 3, and cited the Supreme Court’s decision in Miller
v. Unemployment Compensation Board of Review, 476 A.2d 364, 366-67 (Pa. 1984),
for the proposition that the Supreme Court has refused to give “overly technical,
restrictive readings to procedural rules,” particularly with respect to remedial
statutes like the Law, with dismissals being “particularly disfavored.” Phillips, slip
op. at 4 (quoting Miller, 476 A.2d at 366-67).
             Miller involved an appeal governed by the Pennsylvania Rules of
Appellate Procedure. As we noted in Han, while Miller is the standard by which the
timeliness of appeals under the Rules of Appellate Procedure must certainly be
judged, the Supreme Court’s holding in that case is not applicable to appeals made
to administrative agencies.      Han, 42 A.3d at 1158 n.8 [quoting Vereb v.
Unemployment Comp. Bd. of Review, 676 A.2d 1290, 1294 (Pa. Cmwlth. 1996)].


                                             5
We have distinguished Miller from cases such as the instant one, in that the
regulations governing unemployment compensation appeals to the Board do not
provide for substantial compliance. See UGI Utils., Inc. v. Unemployment Comp.
Bd. of Review, 776 A.2d 344, 348 n.4 (Pa. Cmwlth. 2001).
             In Phillips, this Court held that “under the specific circumstances
presented,” the Board should have scheduled a hearing on the timeliness of the
claimant’s appeal. Phillips, slip op. at 4. The specific circumstances included the
claimant’s requesting in her appeal to the Board “a chance to state her case,” but also
allegations that she did not receive anything in the mail and that she had contacted
the Department several times and spoke to the “wrong people.” Id., slip op. at 3.
This Court found that the “aforementioned communications were sufficient to
inform the Board that [c]laimant requested to be heard on the timeliness of her
Decision Appeal Petitions.” Id., slip op. at 4.
             Clearly here, Claimant did not specifically request a hearing. However,
the Board’s letter informed her that her appeal was late and that if she wished to
contest that determination she had to request a hearing in writing. Having been told
that her only option for moving forward was to request a hearing, “to set forth your
reasons why you believe your appeal [should be deemed timely],” she replied, in
writing, “I have [an] excuse.” While not a model of clarity, we believe her response
was sufficient to advise the Board that she wished to tell her side of the story with
respect to the only issue it raised, timeliness of her appeal.
             For the above reasons, we will reverse the order of the Board and
remand for a hearing on the timeliness issue.


                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge


                                           6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melissa N. Walker,                          :
                         Petitioner         :
                                            :
                  v.                        :   No. 787 C.D. 2019
                                            :
Unemployment Compensation Board             :
of Review,                                  :
                    Respondent              :


                                      ORDER


            AND NOW, this 27th day of April, 2020, the order of the
Unemployment Compensation Board of Review (Board) in the instant matter is
REVERSED and the matter is remanded for a hearing on the issue of the timeliness
of Melissa N. Walker’s appeal to the Board.
            Jurisdiction is relinquished.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
