          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Barbara Scavitto,                       :
                    Petitioner          :
                                        :
             v.                         :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 1079 C.D. 2017
                 Respondent             :   Submitted: March 8, 2018


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: April 5, 2018

             Barbara Scavitto (Claimant) petitions for review of the June 28, 2017
determination of the Unemployment Compensation Board of Review (Board)
denying Claimant’s request to reconsider its May 10, 2017 decision and order
because her request was untimely filed. Upon review, we affirm.
             Claimant was terminated by NutriSystem (Employer) on March 5, 2015
for unsatisfactory work performance. Certified Record (C.R.) Item No. 3; Employer
Questionnaire, Question Nos. 1 & 6.         Claimant applied for unemployment
compensation benefits. For the week ending March 28, 2015 through the week
ending June 27, 2015, Claimant received $13,598 in unemployment compensation
benefits. C.R. Item No. 5, Notice of Determination of Benefit Overpayment of
Benefits (Fault or Nonfault) at 1.
             After paying the benefits, on August 12, 2016, the Erie Unemployment
Compensation Service Center (Center) issued to Claimant, at an address in Hatfield,
Pennsylvania, an Advanced Notice that provided:

             THIS IS TO NOTIFY YOU THAT THE
             UNEMPLOYMENT COMPENSATION BENEFITS
             YOU MAY HAVE BEEN RECEIVING MAY BE
             TEMPORARILY            OR        PERMANENTLY
             TERMINATED BECAUSE YOU MAY HAVE: . . .
             Been discharged or suspended from work for willful
             misconduct.

C.R. Item No. 2, Advanced Notice at 1 (emphasis in original). The Advanced Notice
requested completion and return of the attached questionnaire by no later than
August 19, 2016, noting that “[f]ailure to do so may result in the immediate
termination of benefits and the assessment of an overpayment for benefits
already paid.” Id. (emphasis in original).
             On November 23, 2016, the Center mailed to Claimant at the Hatfield,
Pennsylvania address, a Notice of Determination concluding that Claimant no longer
qualified for unemployment compensation benefits because Employer discharged
Claimant for unsatisfactory work performance and Claimant did not meet her burden
of showing “good cause” for her unsatisfactory work performance. The Notice of
Determination stated that Claimant had until December 8, 2016 to appeal. The
Center provided Claimant with detailed “APPEAL INSTRUCTIONS” as part of
the determination. C.R. Item No. 5, Notice of Determination at 1 (emphasis in
original). The Center also mailed to Claimant, at the same Hatfield address, a Notice
of Determination Overpayment of Benefits (Fault or Nonfault) which noted that a




                                         2
fault overpayment had been established and stated that Claimant had until December
8, 2016 to appeal the overpayment determination.1
                On January 30, 2017, over a month after the appeal deadline, Claimant
appealed the Center’s determinations. In her appeal, Claimant asserted that she was
not fired for willful misconduct.             C.R. Item No. 6, Petition for Appeal at 1.
Thereafter, the Referee held a hearing on the matter where Claimant indicated that
she received the Advanced Notice, dated August 12, 2016, but that it did not contain
a questionnaire for her to complete. C.R. Item No. 9, Transcript of Testimony,
2/23/17 at 8. Claimant also testified that she never received the November 23, 2016
Notice of Determination, although Claimant confirmed that her address was the
same Hatfield address to which the notices were sent. Id. at 1, 6 & 9.
                On February 27, 2017, the Referee issued a decision and order
concluding that Claimant’s appeal was untimely. Although Claimant testified that
she did not receive the determinations, the Referee found that the determinations
were sent to her last address, which she confirmed. Thus, the Referee presumed
Claimant received the determinations, citing the mailbox rule.2 Claimant appealed
the Referee’s decision to the Board, which affirmed.
                The Board, in its May 10, 2017 decision and order, adopted the
Referee’s findings including that: “There is no evidence that the claimant was


        1
          The overpayment determination provided that “[i]f you disagree with this
determination, you may appeal. If you want to file an appeal, you must do so on or before
the date shown above [DEC 08, 2016]. See enclosed APPEAL INSTRUCTIONS, Form UC-
47.” C.R. Item No. 5, Notice of Determination Overpayment of Benefits (Fault or NonFault) at 1
(emphasis in original).
        2
          “[U]nder the ‘mailbox rule,’ evidence that a letter has been mailed ordinarily will be
sufficient to permit a ‘fact finder’ to find that the letter was, in fact, received by the party to whom
it was addressed.” Roman-Hutchinson v. Unemployment Comp. Bd. of Review, 972 A.2d 1286,
1288 n.3 (Pa. Cmwlth. 2009).
                                                   3
misinformed or misled by the unemployment compensation authorities regarding her
right to appeal or the necessity of appealing.” See Board’s Findings of Fact No. 6.
The Board included with its decision an appeal and reconsideration notice which
provided that an appeal to Commonwealth Court must be filed “within 30 days of
the mailing date of the Board’s disposition” and that a request for reconsideration
must be submitted to the Board no later than 15 days after the decision mailing date.
C.R. Item. No. 12, Board’s Decision and Order, 5/10/17 at 3.
             Based on the notice attached to the Board’s decision and order,
Claimant’s request for reconsideration was due by no later than May 25, 2017, the
mailing date plus 15 days. Claimant requested reconsideration from the Board by
submitting a document entitled “Affidavit.” C.R. Item No. 13, Affidavit at 1 & 2.
On its face, Claimant’s Affidavit was dated June 15, 2017, although Claimant had it
notarized on June 19, 2017. An employee of the Office of Legislative Affairs for
the Department of Labor and Industry received Claimant’s request by email on June
19, 2017 and forwarded it to a program analyst with the Board by email dated June
28, 2017. C.R. Item No. 13, Email Exchange Between Nathan Clark and Dianna
Davis, Regarding Legislative Inquiry: Scavitto, 6/28/17 at 1.
             On June 28, 2017, the Board notified Claimant that her request for
reconsideration was untimely filed and stated:

             Our rules of practice and procedure provide that timely
             requests for reconsideration must be filed within fifteen
             (15) days after the issuance of the Board of Review’s
             decision (34 Pa. Code §101.111).

             Since your communication was received June 19, 2017,
             the Board instructed me to advise you that your request for
             reconsideration was not timely filed. The above decision
             [of May 10, 2017], therefore, stands as the Board’s final
             order.
                                         4
             I regret that we cannot give you a more favorable reply.

C.R. Item No. 14, Letter from Unemployment Compensation Appeals System
Administrator, Randall S. Brandes, for the Board dated June 28, 2017 (emphasis in
original).
             On July 7, 2017, Claimant, pro se, petitioned this Court for review.
Claimant attached a copy of the Board’s June 28, 2017 letter to her request. In
response, on September 12, 2017, the Board filed a Motion to Quash Petition for
Review for Untimeliness. By order dated October 10, 2017, this Court denied the
Board’s request to quash Claimant’s petition for review. The order provided, in
relevant part, as follows:

             it appearing that petitioner’s pro se communication to this
             Court was timely from respondent’s June 28, 2017 denial
             of reconsideration, the motion to quash is denied. See 42
             Pa. C.S. § 5105(a)(2). Petitioner’s appeal shall be limited
             to the denial of reconsideration.

             Title 34, Part VI, Chapter 101 of the Pennsylvania Code provides the
rules of practice and procedure governing proceedings before the Board. 34 Pa.
Code §§ 101.1-101.133. Section 101.111 governs reconsideration requests and
provides as follows:

             (a) Within 15 days after the issuance of the decision of the
             Board, as may be determined by the provisions of §
             101.102 (relating to form and filing of application for
             further appeal from decision of referee), any aggrieved
             party may request the Board to reconsider its decision and
             if allowed, to grant further the opportunity to do the
             following:

                (1) Offer additional evidence at another hearing.

                                          5
                  (2) Submit written or oral argument.

                  (3) Request the Board to reconsider the previously
                      established record of evidence.

              (b) The requests will be granted only for good cause in the
              interest of justice without prejudice to any party. The
              parties will be notified of the ruling of the Board on each
              such request. The request for reconsideration and the
              ruling of the Board shall be made a part of the record and
              subject to review in connection with any further appeal to
              the Commonwealth Court.

34 Pa. Code § 101.111 (emphasis added). As noted above, the regulations expressly
provide that any aggrieved party, the claimant, may “[w]ithin 15 days after the
issuance of the decision of the Board” request reconsideration.                     Id.    The
reconsideration request and the Board’s ruling “shall be made a part of the record”
and are subject to review by this Court. Id.
              Time limits set forth in agency regulations are normally
mandatory. Mayer v. Unemployment Comp. Bd. of Review, 366 A.2d 605, 607 (Pa.
Cmwlth. 1976) (citing Unemployment Comp. Bd. of Review v. Buongiovanni, 345
A.2d 783 (Pa. Cmwlth. 1975)). Fraud, negligence of an administrative official,
breakdown in administrative process3 or extraordinary circumstances may, if
present, excuse an otherwise untimely appeal. Bd. of Sch. Dirs. of Avon Grove Sch.
Dist. v. Dep’t of Educ., 375 A.2d 851, 853 (Pa. Cmwlth. 1977); Mayer, 366 A.2d at

       3
         The “administrative breakdown” exception to allow an untimely appeal includes “where
an administrative board or body is negligent, acts improperly or unintentionally misleads a
party.” Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008)
(citing Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746
A.2d 581, 584 (Pa. 2000)). Nunc pro tunc relief may be granted when “a referee’s decision is
mailed to an incorrect address; adequate assistance is not provided to a claimant with cognitive
impairment; or, an official misleads a litigant as to the proper procedure for filing an
appeal.” Hessou, 942 A.2d at 198 (citations omitted).

                                               6
607 (citing Unemployment Comp. Bd. of Review v. Ferraro, 348 A.2d 753 (Pa.
Cmwlth. 1975)). Likewise, certain “non-negligent circumstances” resulting in an
untimely appeal may be excused. See Cook v. Unemployment Comp. Bd. of Review,
671 A.2d 1130, 1131 (Pa. 1996) (holding that an untimely appeal may be permitted
where claimant filed an appeal four days late because he had an unexpected multiple
day stay in the hospital).
             Here, attached to the Board’s May 10, 2017 order was a one page
document providing instructions to Claimant on how to make a request to the Board
to reconsider its decision. The Board’s order mailing date was May 10, 2017; thus,
the reconsideration request was due no later than May 25, 2017. The certified record
shows that Claimant did not request reconsideration from the Board until June 19,
2017, when an employee of the Department of Labor and Industry indicated that he
received the request and forwarded it to a Board analyst. C.R. Item No. 13,
Claimant’s Request for Reconsideration, 6/15/17. Claimant’s request was late and
therefore untimely.
             Claimant provides no reason as to why she filed her request for
reconsideration late. Despite this Court’s October 10, 2017 order stating that
Claimant’s “appeal shall be limited to the denial of reconsideration,” the arguments
set forth in Claimant’s brief challenge the merits of the Board’s May 10, 2017 order
rather than its denial of reconsideration. Because Claimant has provided no reason
why her reconsideration request was late, she failed to establish that there were any
circumstances that would excuse her untimely reconsideration request.
             Accordingly, we affirm.

                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge

                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Barbara Scavitto,                   :
                    Petitioner      :
                                    :
            v.                      :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 1079 C.D. 2017
                 Respondent         :

                                 ORDER


            AND NOW, this 5th day of April, 2018, the determination of the
Unemployment Compensation Board of Review dated June 28, 2017 is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
