            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chelsea V. Watson,                            :
                            Petitioner        :
                                              :
                     v.                       :   No. 907 C.D. 2019
                                              :   Submitted: March 26, 20201
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
JUDGE COHN JUBELIRER                              FILED: April 29, 2020


       Chelsea V. Watson (Claimant) petitions for review of a June 13, 2019 Order
of the Unemployment Compensation (UC) Board of Review (Board) that affirmed
a Referee’s Decision dismissing Claimant’s appeal as untimely pursuant to Section




       1
          On February 13, 2020, by agreement of both parties, this Court granted Respondent’s
Application for Leave to Submit the Case on Briefs Without Oral Argument, and cancelled oral
argument in this case. Pursuant to the Administrative Order entered March 12, 2020, In Re:
Commonwealth Court March 2020 Oral Argument Session (Pa. Cmwlth., No. 126 Misc. Docket
No. 3, filed March 12, 2020), oral arguments were rescheduled to take place between Tuesday,
March 24, 2020, and Thursday, March 26, 2020. Accordingly, the date submitted is March 26,
2020.
501(e) of the UC Law (Law), 43 P.S. § 821(e).2 On appeal, Claimant argues that
she, in fact, faxed in a timely appeal of the UC local Service Center’s
determination. Based on a review of the record, we affirm the Board’s Order.

I.     BACKGROUND
       On November 12, 2017, Claimant filed a claim for UC benefits after her
separation from Conewango Valley Country Club (Employer) on October 29,
2017. (Claim Record, Certified Record (C.R.) Item 1.) The local Service Center
requested information from Claimant regarding her employment separation;
however, Claimant did not respond. (Letter to Claimant, C.R. Item 2.) In a phone
interview and questionnaire, Employer stated Claimant was discharged for willful
misconduct. (Record of Oral Interview, C.R. Item 3; Employer Questionnaire,
C.R. Item 4.) On June 6, 2018, the local Service Center issued a Notice of
Determination, finding Claimant ineligible for benefits due to willful misconduct
under Section 402(e) of the Law, 43 P.S. § 802(e).3 (C.R. Item 6.) The local
Service Center also issued a Notice of Determination for Fault Overpayment of
Benefits on the same date.             The Notices of Determination expressly stated
Claimant had until June 21, 2018, to file an appeal. The Notices of Determination
were mailed to Claimant’s last known address and were not returned as
undeliverable. (Referee Decision, Findings of Fact (FOF) ¶¶ 2-3, C.R. Item 11.)

       2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e) (providing that a determination is final if it is not appealed within 15 days of the notice
being mailed to the last known post office address).
        3
          Section 402(e) of the Law states “[a]n employe shall be ineligible for compensation for
any week . . . [i]n which [the employe’s] unemployment is due to [the employe’s] discharge or
temporary suspension from work for willful misconduct connected with [the employe’s] work,
irrespective of whether or not such work is “employment” as defined in this act . . . .” 43 P.S.
§ 802(e).



                                                 2
      On March 21, 2019, Claimant mailed her appeal from the Notices of
Determination. (Claimant’s Petition for Appeal, C.R. Item 7.) Claimant’s appeal
stated, “I filled [sic] an appeal as soon as I received the first papers that were filed
from my previous employer but I am unaware what happened to them and why I
never heard back about my appeal.” (Id.) A hearing regarding the timeliness of
the appeal was scheduled before a Referee. During the hearing, the Referee asked
Claimant why her appeal was late. (Hr’g Tr. at 4, C.R. Item 10.) Claimant stated
that her mother faxed in Claimant’s appeal on June 20, 2018, and testified as
follows to the Referee’s inquiries regarding the fax:

      R   Okay. Now, the Determinations that we have here had final
        appeal dates of June 21st of 2018, and the envelope that your
        Appeal documents were mailed in was postmarked March 21st of
        2019. And what would you have for testimony as to why your
        Appeal was late?
      C   So, I have my original Appeal that I had sent in, and I was
        reviewing the -- that it was sent out I believe on the 5th, and it
        needed to be in by 15th, which as soon as I got this, I made sure
        that I got my Appeal faxed in, but once I looked and saw that it
        was sent out on the 5th and late date. It had to be in by the 15th.
        That hadn't given me enough time to get it in on time.

      R Now where are you getting the 15th at?
      C I believe I saw it -- I wonder if it was on this one.

      R Oh, is this what you were referring to?
      C Yes.

      R That’s the date -- this is the Questionnaire that was sent to you,
        and they wanted the information back by May 15th of 2018.
      C Okay. Okay, so as far as that goes, Chris [] had told me when it
        needed to be faxed and I made sure that it was in by that time.
        I’m not 100 percent sure exactly when but I took this very
        seriously and got it in as soon as it needed to be, and I even have
        the fax confirmation that it was received. But then the next thing
        that I had heard was I didn’t really hear anything back about the
        Appeal, so then over the next two months, that’s when I started to

                                           3
    go online and try to reach out to someone that could direct me to
    what step I needed to take to --

R Ma’am, when did you fax this?
C It was on the 20th of June, 2018.

R And where’d you fax it from?
C It was faxed from Fed Ex.

R Okay, you have a confirmation there?
C Yes.

R Okay, could I see it? Okay, so this is an email. How did you send
   it? Did you fax it or did you email it?
C I had my mom had faxed [sic] it from Fed Ex.

R Okay. Okay, do you know what number that it was sent to?
C I just know that I had gotten the fax number off of an online form
  and I gave her that to send it to. And that’s why when I did my
  second appeal, that I ended up just typing out the letter and
  sending it in by mail because I wanted to make sure that it was
  received and my statement was clear.

R Your mother works at Fed Ex?
C Yes.

    ...

R Okay. Well, it was sent -- according to this, there’s an email that
  was sent. It looks like it sent from your mother to her email, but I
  ...
C That yeah, [sic] I was a little bit unclear on that, but she did say
  that when they were sending it that it -- she had got a confirmation
  back that it was sent.

R And is that the Appeal that she sent?
C Yes[.]

R  Now, you didn’t get anything back from the Unemployment
  Office after this was sent, did you?
C No, not in regarding my Appeal, no.



                                  4
(Id.) Claimant did not provide a copy or explanation of what she alleged was
timely faxed, only a copy of an email confirmation of a fax. The copy of the email
dated June 20, 2018, at 10:40 a.m. from Claimant’s mother’s email address to
Claimant’s mother’s email address was entered into the record. The subject line of
the email states that the fax transmission to the listed fax number “was
Successful.” (Id. at 7, Claimant’s Ex. 1.) The email also included the number to
which it was faxed, a date and time (“6/20/2018 2:37:00 PM”), and the total
number of pages faxed (3). (Id.)
      Following the hearing, the Referee issued a Decision, determining that
Claimant did not appeal on or before June 21, 2018, as required. (FOF ¶¶ 4-5.)
The Referee stated that Claimant did not possess the “actual confirmation from
when the appeal may have been faxed in June 2018.” (Id. ¶ 6.) In addition, the
Referee determined Claimant was not misinformed or misled regarding her right or
need to appeal the local Service Center’s determination. (Id. ¶ 7.) Thus, the
Referee dismissed the Petition for Appeal as untimely. (Id.)
      Claimant then appealed the Referee’s Decision to the Board. (Claimant’s
Petition for Appeal, C.R. Item 12.) On June 13, 2019, the Board issued its Order
adopting and incorporating the Referee’s findings of fact and conclusions of law
and affirming the Referee’s Decision. (Board’s Order, C.R. Item 15.) The Board
additionally noted that the fax number listed on the email Claimant provided was
the one provided on the Notices of Determination. (Id.) The Board, however,




                                         5
noted that Claimant’s mother did not testify and there was no evidence presented
as to what was faxed.4 (Id.)

   II.       PARTIES’ ARGUMENTS
         On appeal to this Court,5 Claimant argues that she offered credible testimony
and a copy of an email confirmation to demonstrate that her mother timely faxed
Claimant’s appeal on June 20, 2018. Claimant further asserts that, according to the
Department of Labor and Industry’s (Department) regulations, the date on the copy
of the email confirmation should be considered the filing date. Claimant asks “this
Court [to] reverse the Board’s decision and enter an order finding [Claimant]’s
appeal timely and remand[] for further proceedings on the merits of [Claimant]’s
appeal.” (Claimant’s Brief (Br.) at 14.)
         The Board responds that Claimant filed her appeal nine months after the
statutory deadline, and thus it was untimely. Furthermore, the Board asserts that
Claimant did not present enough evidence to demonstrate that she timely appealed.
Specifically, the Board notes that Claimant’s mother did not testify and there was
no evidence to indicate that the appeal was received. Additionally, the Board
argues that Claimant did not provide any evidence as to what was faxed. The
Board asserts that Claimant’s testimony about the fax was not competent because
Claimant was not present when her mother sent the fax.


         4
          The Board’s Order references a document attached to Claimant’s brief to the Board that
it could not consider because it was not part of the record. This document is not attached to the
brief in the Certified Record.
        5
           “Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014).



                                               6
III.   DISCUSSION
       Section 501(e) of the Law governs an appeal of a local Service Center’s
Determination. It provides that:

       Unless the claimant or last employer or base-year employer of the
       claimant files an appeal with the [B]oard, from the determination
       contained in any notice required to be furnished by the [D]epartment
       under section five hundred and one (a), (c) and (d), within fifteen
       calendar days after such notice was delivered to [the claimant]
       personally, or was mailed to [the claimant’s] last known post office
       address, and applies for a hearing, such determination of the
       [D]epartment, with respect to the particular facts set forth in such
       notice, shall be final and compensation shall be paid or denied in
       accordance therewith.

43 P.S. § 821(e) (emphasis added). This statutory time frame is memorialized in
the Department’s regulations, as well. See 34 Pa. Code § 101.82(a) (“A party
seeking to appeal a Department determination shall file an appeal . . . on or before
the 15th day after the date on which notification of the decision of the Department
was . . . mailed to him at his last known post office address.”). “It is well-settled
the statutory time limit for filing an appeal is mandatory in the absence of fraud or
a breakdown in the administrative agency.” Pa. Tpk. Comm’n v. Unemployment
Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009).
       A claimant may appeal a determination of the local Service Center via fax.
34 Pa. Code § 101.82(b)(3). The Department’s regulation states:

       (3) Fax transmission.

             (i)   The filing date will be determined as follows:

                   (A) The date of receipt imprinted by the Department, the
                       workforce investment office or the Board’s fax
                       machine.


                                         7
                      (B) If the Department, the workforce investment office
                          or the Board’s fax machine does not imprint a legible
                          date, the date of transmission imprinted on the faxed
                          appeal by the sender’s fax machine.

                      (C) If the faxed appeal is received without a legible date
                          of transmission, the filing date will be the date
                          recorded by the Department appeal office, the
                          workforce investment office or the Board when it
                          receives the appeal.

              (ii)    A party filing an appeal by fax transmission is
                      responsible for delay, disruption, interruption of
                      electronic signals and readability of the document and
                      accepts the risk that the appeal may not be properly or
                      timely filed.

              (iii)   A fax transmission is timely filed if it is received by the
                      Department appeal office, workforce investment office or
                      Board before midnight on the last day of the appeal
                      period in accordance with this subsection.

34 Pa. Code § 101.82(b)(3). The Department’s regulation clearly sets out how to
determine the date of an appeal that is faxed, and the Board must follow its own
regulations. Francis v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 8
C.D. 2019, filed Jan. 9, 2020), slip op. at 5 (citing Edwards v. Unemployment
Comp. Bd. of Review, 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994)).6 However, even
when there is an absence of a timely appeal document in the Board’s record, if
there is evidence that an appeal was sent, the Board should consider the evidence



       6
         Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), unreported opinions, while not binding on this Court, may be used for their
persuasive value.



                                             8
and determine whether the appeal was timely. Wright v. Unemployment Comp. Bd.
of Review, 41 A.3d 58, 63 (Pa. Cmwlth. 2011).
      The only appeal in the record is the appeal filed on March 21, 2019. The
Board’s record lacks any documents regarding the alleged June 2018 fax. At the
hearing before the Referee, Claimant provided her own testimony and offered the
email confirmation of the fax. Claimant argues that this is sufficient evidence to
satisfy the evidentiary burden the Court set forth in Wright.
      In Wright, the timeliness of an alleged appeal by fax transmission was also
at issue. There, the Board received the claimant’s untimely appeal of a local
service center’s determination via fax on August 11, 2010. The claimant testified
that he refaxed the appeal after realizing that the Board did not receive his first fax
transmission on July 9, 2010, which would have been timely. In addition to his
own testimony, the claimant presented the testimony of his father who faxed the
appeal and an account log to show the fax was successfully submitted. Wright, 41
A.3d at 60. Also in the record was a statement by an uninterested party at the
father’s office conveying that the father faxed an appeal on July 9, 2010. Id. at 61.
This Court concluded that the statement noted that the August 11, 2010 fax “was
merely a copy of the appeal originally faxed on July 9, 2010.” Id. at 62-63. The
referee credited the testimony and documents and ruled that the appeal was timely.
The employer appealed to the Board regarding the merits, not whether the appeal
was timely.    However, the Board determined that the claimant’s appeal was
untimely. In doing so, the Board did not acknowledge or discredit any of the
evidence the claimant presented before the referee related to the initial faxed
appeal in July 2010. Instead, the Board only made a finding that the claimant
appealed via fax on August 11, 2010.



                                          9
       On appeal, we concluded the Board erred in neglecting to issue any findings
of fact or conclusions of law regarding the alleged July 9, 2010 fax when it
overruled the Referee and deemed the appeal untimely. Id. at 67. This Court
faulted the Board for making “no finding that the earlier transmitted appeal, the
appeal that is the basis for the Referee’s decision on timeliness, was not properly or
timely filed.” Id. (emphasis added). Furthermore, this Court noted that the Board
“capriciously disregarded th[e] evidence when it focused solely on the August 11,
2010 fax transmission in its record.” Id. Therefore, we reversed the Board’s
decision and remanded for a determination to be made on the employer’s appeal.
       In contrast, in the case currently before us, the Referee and the Board
weighed Claimant’s evidence and determined that Claimant did not present enough
evidence to support her claim that the appeal was timely faxed. Additionally,
Claimant presented less evidence of her alleged timely appeal than the claimant
presented in Wright. Here, Claimant did not present any testimony from her
mother who purportedly faxed the appeal. The only evidence is the email, which
provides no information as to what was faxed to the Board. Moreover, the email
indicates it was sent at 10:40 a.m., but confirmed the fax was sent later that day at
2:37 p.m. Therefore, it seems that the email was sent before the alleged fax
submission. Unlike the claimant in Wright, Claimant also did not produce a full
copy of what was allegedly originally faxed.7

       7
          Claimant asserts that the Referee “did not inquire about the specific contents of
Petitioner’s faxed appeal.” (Claimant’s Br. at 9.) When a claimant is before a referee
unrepresented by counsel, a referee is required to be cautious to ensure the claimant is given the
opportunity to fully present the claimant’s case. Brennan v. Unemployment Comp. Bd. of
Review, 487 A.2d 73, 77 (Pa. Cmwlth. 1985). However, the referee need only assist “in a matter
consistent with the impartial exercise of [the referee’s] duties” and “[t]he referee need not advise
an uncounseled claimant on specific evidentiary questions . . . .” Id. In the case before us, the
(Footnote continued on next page…)


                                                10
       As the Board is the ultimate finder of fact, we are constrained by the record
and the findings made by the Board if they are supported by substantial evidence.
Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1389 (Pa. 1985).
The Board is “required to explain its decision in sufficient detail to permit
meaningful appellate review.” Id. In the case before this Court, the Board found
that Claimant’s evidence of a timely appeal was insufficient. (Board Order, C.R.
Item 15.) We find no fault in this finding as it is supported by the evidence and not
inconsistent with our precedent.
       Having concluded that Claimant’s appeal was untimely, we must next
consider whether Claimant is entitled to nunc pro tunc relief. An appeal nunc pro
tunc is warranted when there was a delay in filing due to extraordinary
circumstances which involve fraud, a breakdown in the administrative process, or
non-negligent conduct by a petitioner, a petitioner’s counsel, or a third party. Cook
v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996).
Claimant argues that she testified credibly that her mother, a third party, non-
negligently faxed in the appeal documents. However, the Board is the finder of
fact and decides credibility issues. Peak, 501 A.2d at 1389. Although the Board
did not make an express credibility determination about Claimant, it is apparent
based upon its holding that the Board did not credit Claimant’s testimony about the
original fax. We cannot overturn these findings. Furthermore, Claimant chose to
file the appeal by fax and “accept[ed] the risk that the appeal may not be properly

_____________________________
(continued…)
Referee asked Claimant a series of questions regarding the fax, and also asked Claimant whether
there was anything else Claimant would want to testify to regarding the timeliness of her appeal.
(Hr’g Tr. at 5, C.R. Item 10.) Therefore, we find no issue with how the Referee conducted the
hearing.



                                               11
or timely filed.” 34 Pa. Code § 101.82(b)(3)(ii). Therefore, Claimant has not
proven that she is entitled to nunc pro tunc relief.

IV.   CONCLUSION
      Based on the aforementioned, we affirm the Board’s Order, dismissing
Claimant’s appeal as untimely.


                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chelsea V. Watson,                     :
                      Petitioner       :
                                       :
                 v.                    :   No. 907 C.D. 2019
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                   ORDER


     NOW, April 29, 2020, the Order of the Unemployment Compensation
Board of Review, dated June 13, 2019, is AFFIRMED.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
