           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Roper,                         :
                         Petitioner    :
                                       :
                   v.                  :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 684 C.D. 2016
                    Respondent         :   Submitted: September 2, 2016


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                          FILED: March 3, 2017


            Timothy Roper (Claimant) petitions for review from a decision of the
Unemployment Compensation Board of Review (Board), which affirmed the
dismissal of his appeal by an Unemployment Compensation Referee (Referee) on
the basis it was untimely filed. For the reasons set forth below, we affirm the
decision of the Board.
            The relevant facts are as follows. Claimant worked for Worldwide
Flight Services (Employer) from June 11, 2011 until October 10, 2014. When
Claimant filed for unemployment, he informed the Unemployment Compensation
Service Center (Service Center) he was unemployed due to lack of work. He was
awarded benefits in the amount of $434.00 per week and received benefits for five
weeks. Employer subsequently notified the Service Center that Claimant
voluntarily quit his employment. On August 31, 2015, Claimant was mailed a
Notice of Determination (Determination) that, having voluntarily quit and not
shown a necessitous and compelling reason for quitting, he was ineligible for
benefits under Section 402(b) of the Unemployment Compensation Law (Law).1
On September 1, 2015, Claimant was mailed a Notice of Determination of
Overpayment of Benefit (Overpayment Determination), pursuant to Section 804(a)
of the Law2 and a Notice of 15% Penalty Determination (Penalty Determination),
pursuant to Sections 801(b) and (c) of the Law.3 It was determined Claimant had a
fault overpayment of $2,170.00 and was liable for a fifteen-percent penalty of
$325.50.
                   The last day to appeal the Determination was September 15, 2015.
The last date to appeal both the Overpayment Determination and Penalty
Determination was September 16, 2015. Claimant faxed his appeal on February 2,
2016. Following a hearing held February 23, 2016, Claimant’s Petition for Appeal
was dismissed as untimely by the Referee. Claimant appealed to the Board, which
affirmed the decision of the Referee.4
                   Claimant petitions this Court for review, 5 stating he was denied
unemployment compensation benefits.                    Although he acknowledges having


          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
          2
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
874(a).
          3
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
871(b), (c).
       4
         Claimant’s appeal filed February 2, 2016 indicates he is appealing a determination dated
September 16, 2015. There is no record of any notice of determination dated September 16,
2015. Because the last date to appeal the Overpayment Determination and Penalty
Determination was September 16, 2015, we presume Claimant intended to appeal those
determinations. When transcribing Claimant’s faxed appeal, the Service Center noted the
determination date was August 31, 2015. The Board’s decision, however, encompassed the
timeliness of Claimant’s appeal for all three notices of determination.
       5
         The Court’s review is limited to determining whether Claimant’s constitutional rights
were violated, whether an error of law was committed, or whether the necessary factual findings

                                                   2
received a debit card and paperwork, he alleges he never received or spent any
funds, and Claimant requests that any penalties be removed from his account.
Claimant does not, however, argue exceptions to the untimeliness of his appeal.6
              Section 501(e) of the Law provides in relevant part that a
determination of the department is final unless an appeal is filed within fifteen days
after a notice is mailed to a claimant’s last known post office address.7 Board
regulations further provide that an appeal of a determination shall be filed “on or
before the 15th day after the date on which notification of the decision of the
Department was delivered personally to the appellant or mailed to him at his last
known post office address.” 34 Pa.Code § 101.82(a). This fifteen-day limit is
mandatory and if an appeal of the determination is not filed within fifteen days of
its mailing, the determination becomes final, and the Board does not have the
requisite jurisdiction to consider the matter.                   Vereb v. Unemployment
Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996).
              If there is evidence in the record that the determination was mailed to
the claimant’s last known address and not returned as undeliverable, there is a
presumption the referee may invoke in reaching a determination that the claimant
had proper notice. Gaskins v. Unemployment Compensation Board of Review, 429
A.2d 138, 140 (Pa. Cmwlth. 1981). Pursuant to Board regulations, the “[m]ailing
of notices, orders, or decisions of a referee, or of the Board to the parties at their
last known addresses as furnished by the parties to the referee, the Board, or the



are supported by competent evidence. Dull v. Unemployment Compensation Board of Review,
955 A.2d 1077, 1079 n.2 (Pa. Cmwlth. 2008).
        6
          Claimant does not request or argue the right to appeal nunc pro tunc, nor do we rule on
the viability of such a request prospectively.
        7
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).

                                                 3
Department, shall constitute notice of the matters therein contained.” 34 Pa.Code
§101.53.
             The Board, in affirming the decision of the Referee, found all three
notices were mailed to the Claimant at his last known address and were not
returned as undeliverable. (Board’s Decision and Order, Certified Record (C.R.)
Item 12 at 1.) The Board also found the notices informed Claimant the last days on
which to appeal were September 15 and 16, 2015, and Claimant filed his appeal on
February 2, 2016.     Id. Further, the Board found Claimant did not credibly
overcome the presumption he received the notices. Id. at 2. The filing of the late
appeal was not caused by fraud or its equivalent by the administrative authorities, a
breakdown in the appellate system, or by non-negligent conduct. Id. Concluding
the Claimant’s appeal was properly dismissed under Section 501(e) of the Law, the
Board affirmed the decision of the Referee. Id.
             Claimant testified he never received the Determination and only
became aware of a problem when he filed his taxes. (Hearing Transcript, C.R.
Item 9 at 3.) He acknowledged the address to which the notices were sent was
correct. Id. Claimant was living at that address in September. Id. at 4. In the
Decision rendered after the hearing, the Referee found the Determination
disqualifying Claimant for unemployment was mailed on August 31, 2015 to his
last known post office address. (Referee’s Decision, C.R. Item 10 at 1.) The
Determination was not returned by postal authorities as undeliverable. Id. The
Determination informed Claimant the last day to appeal was September 15, 2015
and Claimant filed his appeal on February 2, 2016.          Id.   Claimant was not
misinformed or misled regarding the right of appeal or the need to appeal. Id.
             There is no dispute that Claimant failed to timely appeal the
Determination of the Service Center.       In his brief, he acknowledges having
received documents related to the original grant of benefits. (Claimant’s Brief at
                                           4
8.) Claimant further acknowledges having received a notice denying him benefits,
the receipt of which caused him to obtain other employment. Id. at 6. The bulk of
Claimant’s argument centers on whether he spent the benefits originally granted to
him. But the issue on appeal is solely one of the timeliness of Claimant’s appeal.
The Board is the ultimate finder of fact and is empowered to make credibility
determinations. Oyetayo v. Unemployment Compensation Board of Review, 110
A.3d 1117, 1121 (Pa. Cmwlth. 2015.) The findings of the Board are conclusive on
appeal so long as the record, taken as a whole, contains substantial evidence to
support those findings. Hessou v. Unemployment Compensation Board of Review,
942 A.2d 194, 198 (Pa. Cmwlth. 2008). Accordingly, we affirm the decision of the
Board.




                                     ___________________________
                                     JOSEPH M. COSGROVE, Judge




                                         5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy Roper,                         :
                       Petitioner      :
                                       :
                 v.                    :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 684 C.D. 2016
                    Respondent         :


                                    ORDER


           AND NOW, this 3rd day of March, 2017, the order of the
Unemployment Compensation Board of Review dated March 17, 2016 is affirmed.




                                     ___________________________
                                     JOSEPH M. COSGROVE, Judge
