            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joanne C. Gisler,                              :
                              Petitioner       :
                                               :
                 v.                            :   No. 991 C.D. 2019
                                               :   Submitted: March 26, 2020
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: May 8, 2020


       Petitioner Joanne C. Gisler (Gisler) petitions for review of an order of the
Unemployment Compensation Board of Review (Board), affirming the decision of
an Unemployment Compensation Referee (Referee), which determined that
Claimant’s appeal to the Referee was untimely pursuant to Section 501(e) of the
Unemployment Compensation Law (Law).1 For the following reasons, we affirm
the order of the Board.
       Claimant applied for unemployment compensation benefits on January 20,
2019, after being discharged for alleged dishonesty from her full-time position as a


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e).
bookkeeper with German Auto Specialists, Ltd. (Employer). (Certified Record
(C.R.), Item Nos. 1, 6.) On March 13, 2019, Claimant received a phone call from a
representative (Representative) from the Altoona UC Service Center (Service
Center) in regard to her application for unemployment compensation benefits.
(C.R., Item No. 1 at 2.)          The Representative transcribed his discussion with
Claimant.2 (Id.)
       On March 15, 2019, the Service Center mailed a Notice of Determination,
denying      Claimant      unemployment          compensation        benefits     pursuant      to
Section 402(e) of the Law, 43 P.S. § 802(e), relating to willful misconduct. (C.R.,
Item No. 6.) The Notice of Determination explicitly indicated that the last day to
appeal the Service Center’s determination was April 1, 2019. (Id.) Claimant
appealed the Service Center’s determination on April 26, 2019.                      (C.R., Item
Nos. 7, 10.)
       A Referee conducted a hearing. As to the timeliness of Claimant’s appeal,
Claimant testified that she received the Notice of Determination and that she
understood that April 1, 2019, was the last day to file an appeal. (Id. at 6, 9.)
Claimant contends, however, that she filed her appeal twenty-five days late because
the Representative instructed her not to do anything and that he would be handling
her appeal. (Id.) Claimant testified that, on March 13, 2019, the Representative
called Claimant inquiring about the circumstances surrounding her termination from
employment and her application for unemployment compensation benefits.

       2
          The Representative’s notations within the transcript include: “190314 EMI4 UC169
[Advance Notice Form, (C.R., Item No. 4),] TKN W/ CLMT[;]” and “190314 EMI4 ADVD
CLMT CAN IGNORE [Form UC-]1628 WHEN RCV SAME.” (C.R., Item No. 1 at 2.)
Form UC-1628 is a form that puts a claimant on notice that her benefits may be terminated and
provides a claimant the opportunity to respond to the evidence against her. (C.R., Item No. 4
at 1, 2.) In addition, Form UC-1628 instructs a claimant of her rights at this stage of the process
and indicates that this form is “not an appealable document.” (Id. (emphasis added).)
                                                2
(Id. at 6, 8-9.) Claimant did not remember with whom she spoke, but she testified
that the Representative allegedly told her not to “worry about sending in an Appeal,
[that] he was going to cover it.” (Id. at 8.) Claimant expected that somebody would
contact her inquiring about appealing the Service Center’s determination. (Id. at 9.)
Claimant later decided to file an appeal because she “didn’t hear anything.” (Id.)
On cross-examination, Claimant testified that she did not obtain the Representative’s
name because, after her termination, she was taking medication for depression and,
at the time of the phone call, was half asleep answering the Representative’s
questions. (Id. at 10.)
      Following the hearing, the Referee issued a decision, concluding that
Claimant filed an untimely appeal from the Service Center’s determination and,
therefore, was ineligible for unemployment compensation benefits. (C.R., Item
No. 11.) The Referee made the following findings of fact:
             1.    The claimant worked full time as a bookkeeper
             from 2010 until January 21, 2019, at a rate of pay of about
             $21.00 per hour.
             2.     On March 15, 2019, the Service Center issued a
             Notice of Determination which found the claimant
             ineligible to receive unemployment compensation benefits
             under [S]ection 402(e) of the . . . Law.
             3.    The Service Center sent the Notice of
             Determination to the claimant at [her] last known mailing
             address . . . .
             4.    The claimant received the Notice of Determination
             and understood that there was a deadline for filing the
             appeal.
             5.     April 1, 2019, was the deadline for filing an appeal
             to that determination.
             6.    The evidence in the record indicates that the
             claimant filed her appeal on April 26, 2019.

                                         3
            7.    The claimant did not file [her] appeal on or before
            the April 1, 2019, deadline.
(Id. at 1-2.) The Referee reasoned:
                    It is well[-]settled under Pennsylvania Law that,
            the fifteen-day time limit is mandatory and subject to strict
            application. In order for a Referee to have jurisdiction to
            consider an appeal after the [fifteen]-day period, the party
            who filed the appeal must show that either fraud or a
            breakdown in the administrative process caused the late
            appeal, or that the party or the party’s representative or
            attorney caused the appeal to be late through
            non-negligent conduct.
                   The claimant has not met her burden of proof. The
            evidence in the record indicates that the claimant filed her
            appeal by fax on April 26, 2019. The claimant appeared
            and testified that she filed her appeal late because she
            received a telephone call from an individual from the
            Service Center, and that individual advised the claimant
            that he would take care of the appeal. In support of her
            testimony, the claimant referred to the telephone interview
            that was transcribed by the Service Center and admitted as
            part of the record.
                   The Referee does not find this explanation to be
            credible for multiple reasons. First, the telephone
            interview was given prior to the mailing of the Notice of
            Determination. Accordingly, there would have been
            nothing to appeal at this juncture. Second, the transcript
            of the oral interview referred to by the claimant as support
            for her testimony makes no mention of an appeal. Finally,
            the claimant admits that she was taking medication at the
            time, and she had just awakened when she received the
            call. The Referee finds it much more likely that the
            claimant simply misunderstood the UC representative that
            she spoke to. In any event, the reality is the claimant did
            receive the Notice of Determination, and she was aware of
            the filing deadline. There is no credible evidence in the
            record demonstrating fraud or a breakdown in the
            administrative process caused the late appeal or that the
            party or the party’s representative or attorney caused the
            appeal to be late through non-negligent conduct. The
            provisions of this section of the law are mandatory, and
                                         4
                the Referee has no jurisdiction to allow any appeals filed
                after the expiration of the statutory appeal period.
                Therefore, the claimant’s appeal is dismissed.
(Id. at 2.)
       Claimant appealed the Referee’s decision to the Board. (C.R., Item No. 12.)
The Board affirmed, adopting and incorporating the Referee’s findings of fact and
conclusions of law. (C.R., Item No. 13 at 1.) The Board concluded that the Referee
properly determined that Claimant’s untimely appeal should not be excused because
“[C]laimant failed to provide credible testimony to excuse her untimely appeal.”
(Id.) Claimant then petitioned this Court for review.
       On appeal to this Court,3 Claimant essentially argues that the Board’s fourth
factual finding, as adopted and incorporated from the Referee’s decision, is not
supported by substantial evidence and that the Board erred in determining that
Claimant failed to prove that her untimely appeal was due to fraud or breakdown of
the administrative process. Substantial evidence is defined as relevant evidence
upon which a reasonable mind could base a conclusion. Johnson v. Unemployment
Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining
whether a Board finding is supported by substantial evidence, this Court must
examine the testimony in the light most favorable to the prevailing party, giving that
party the benefit of any inferences that can be logically and reasonably drawn from
the evidence. Id. A determination as to whether substantial evidence exists to
support a finding of fact can only be made upon examination of the record as a
whole.        Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831
(Pa. 1977). The Board’s findings of fact are conclusive on appeal so long as the


       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               5
record, taken as a whole, contains substantial evidence to support them. Penflex,
Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984).
      In an unemployment compensation case, the Board is the ultimate finder of
fact and is, therefore, entitled to make its own determinations as to witness
credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review,
501 A.2d 1383, 1388 (Pa. 1985). The Board has the authority to resolve evidentiary
conflicts. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255
(Pa. Cmwlth. 2004). “Questions of credibility and the resolution of evidentiary
conflicts are within the sound discretion of the Board, and are not subject to
re-evaluation on judicial review.” Miller v. Unemployment Comp. Bd. of Review,
405 A.2d 1034, 1036 (Pa. Cmwlth. 1979). The fact that a claimant may view the
evidence differently than the Board is not grounds for reversal if substantial evidence
supports the Board’s findings. Tapco, Inc. v. Unemployment Comp. Bd. of Review,
650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Even if evidence exists in the record
that could support a contrary conclusion, it does not follow that the findings of fact
are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of
Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986) (en banc).
      In this case, Claimant argues that finding of fact 4 is not supported by
substantial evidence. We disagree with Claimant’s assertion that the Board’s finding
is not supported by substantial evidence. The Board found that “[C]laimant received
the Notice of Determination and understood that there was a deadline for filing the
appeal.” (Board’s Finding of Fact No. 4; C.R., Item No. 10 at 1.) Claimant testified
that she received and understood the Notice of Determination, which, consequently,
contained five explicit indications of the April 1, 2019 deadline for filing a timely
appeal. (C.R., Item Nos. 9, 10 at 9-10.) Although Claimant testified that the


                                          6
Representative told her not to worry about the appeal in her case, the Board did not
find her testimony credible. (C.R., Item No. 11 at 2.) The Board explained that
Claimant’s testimony is not credible, because the evidence within the record
illustrates that her conversation with the Representative occurred before she received
the Notice of Determination, that the Representative’s transcript notations do not
mention an “appeal” in any manner, and Claimant had admitted that she was on
medication and had just woken up during her conversation with the Representative.
(Id.)
        We next consider whether the Board erred in determining that Claimant failed
to prove that she had a justifiable cause to excuse her untimely appeal. Generally,
under Section 501(e) of the Law, a notice of determination will become final where
a claimant fails to file an appeal within fifteen calendar days after said notice was
delivered either to her personally or was mailed to her last known address. It is
well-settled that this fifteen-day time limit to file an appeal is mandatory and is to
be strictly applied. Constantini v. Unemployment Comp. Bd. of Review, 173 A.3d
838, 844 (Pa. Cmwlth. 2017); Dumberth v. Unemployment Comp. Bd. of Review,
837 A.2d 678, 681 (Pa. Cmwlth. 2003) (en banc). “Appeal periods, even at the
administrative level, are jurisdictional and may not be extended as a matter of grace
or indulgence; otherwise, there would be no finality to judicial action.” Dumberth,
837 A.2d at 681. Moreover, this Court has held that an appeal filed one day past the
statutory appeal period must be dismissed as untimely. Moss v. Unemployment
Comp. Bd. of Review, 557 A.2d 839, 839-840 (Pa. Cmwlth. 1989).
        In limited circumstances, the Board may consider untimely appeals, nunc pro
tunc, “as a remedy to vindicate the right to an appeal where that right has been lost
due to certain extraordinary circumstances.” Union Elec. Corp. v. Bd. of Prop.


                                          7
Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000).
In order for the Board to allow an untimely appeal, the claimant, bearing the burden
of proof, must illustrate that her delay in filing her appeal was caused by
“extraordinary circumstances involving fraud, administrative breakdown, or
non-negligent conduct beyond the [claimant’s] control.” Lopresti v. Unemployment
Comp. Bd. of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012). In so doing, the
claimant must demonstrate that “‘the administrative authority engaged in fraudulent
behavior or manifestly wrongful or negligent conduct’ or that ‘non-negligent
conduct beyond [the claimant’s] control caused the delay.’” Id. (quoting Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008)).
      In this case, Claimant essentially argues that her untimely appeal was not due
to her own negligence, but, rather, was due to fraud or a breakdown in the
administrative process after she reasonably relied upon the Representative’s
instructions not to worry about her appeal, as he would be taking care of Claimant’s
appeal for her. Furthermore, Claimant essentially argues that the Representative
improperly or unintentionally misled her during their March 2019 phone
conversation by allegedly referencing the Notice of Determination and said to
disregard this document as he would be handling her appeal. Additionally, Claimant
argues that the Board is not prejudiced by the delay in her appeal.         Despite
Claimant’s allegations, however, there was no fraud or breakdown in the
administrative process in this case.    The Board acknowledged that Claimant
presented her own testimony and timeline of events in support of her allegations.
(C.R., Item No. 11 at 2.) As noted above, however, the Board did not credit
Claimant’s testimony.




                                         8
      As the Board’s findings are supported by substantial evidence within the
record, as discussed above, they are binding on appeal. Peak, 501 A.2d at 1388. As
Claimant’s appeal to the Referee was untimely, the merits of her appeal, challenging
the Service Center’s determination of ineligibility due to willful misconduct, is not
before us. Accordingly, we affirm the order of the Board.




                                         P. KEVIN BROBSON, Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joanne C. Gisler,                    :
                      Petitioner     :
                                     :
            v.                       :   No. 991 C.D. 2019
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER


      AND NOW, this 8th day of May, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.




                                     P. KEVIN BROBSON, Judge
