IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Fenwick, :
Petitioner :
:
v. : No. 515 C.D. 2015
: Submitted: September 18, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 23, 2015
Anthony Fenwick (Claimant), representing himself, petitions for
review from an order of the Unemployment Compensation Board of Review
(Board) that dismissed his appeal from a referee’s decision as untimely under
Section 502 of the Unemployment Compensation Law1 (Law). Rather than
addressing the Board’s determination of untimeliness, Claimant’s brief almost
exclusively addresses the merits of the denial of his claim for unemployment
compensation (UC) benefits. Because we discern no error in the Board’s dismissal
of Claimant’s appeal as untimely, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§822.
Claimant worked for ABM Security Services (Employer) as a security
officer. After his separation from employment in July 2014, he applied for UC
benefits, which were initially granted. Employer appealed.
After a hearing, the referee issued a decision denying Claimant UC
benefits.2 The referee’s decision, issued December 31, 2014, was mailed to
Claimant at his last known post office address on that date. The referee’s decision
was accompanied by notice advising interested parties that they had 15 days in
which to file an appeal. The referee’s decision specifically indicated in two places
that the last day to file an appeal was January 15, 2015. There was no indication
that the letter containing the referee’s decision was returned as undeliverable.
Claimant filed his appeal to the Board on January 21, 2015. On
January 29, 2015, the Board sent Claimant a letter notifying him that he had an
opportunity to request a hearing on the issue of whether his appeal from the
referee’s decision was timely. Claimant did not respond by the date set forth in the
Board’s letter.
The Board subsequently issued a decision dismissing Claimant’s
appeal as untimely. It explained:
Section 502 of the [Law] provides that unless an
interested party institutes an appeal to the Board from the
Referee’s decision within fifteen (15) days after its
2
A transcript of the hearing on the merits of Claimant’s separation from employment is
not included in the certified record. However, for the reasons set forth below, we do not reach
the merits of Claimant’s separation from employment with Employer.
2
mailing date, the decision shall be deemed a final
decision of the Board. An appeal to the [UC] authorities
is timely if it is filed on or before the last day to appeal.
The last day to file an appeal from this decision was
January 15, 2015. However, [C]laimant did not file an
appeal until January 21, 2015. The provisions of this
section of the Law are mandatory, and the Board has no
jurisdiction to accept an appeal filed after the expiration
of the statutory appeal period absent limited exceptions
not relevant herein.
Pursuant to 34 Pa. Code § 101.61, the appeals of
parties who are notified in writing by the Board that their
appeals appear to be untimely and who do not reply or
request a hearing on the issue of timeliness within 15
days shall be dismissed. Here, [C]laimant has not
requested a hearing after proper notification from the
Board.
[C]laimant’s appeal from the Referee’s decision
must be dismissed.
Bd. Op., 3/3/15 at 2. Claimant now petitions for review to this Court.
The sole issue before this Court is whether the Board erred in
determining Claimant did not timely appeal the referee’s decision. However, in his
brief to this Court, Claimant devotes little attention to this issue. Indeed, he does
not address or develop this issue in the Argument section of his brief. Thus, the
issue is waived. Berner v. Montour Twp., ___ A.3d ___ (Pa. Cmwlth., No. 1543
C.D. 2014, filed July 9, 2015), 2015 WL 4130473 (party’s failure to develop an
issue in the argument section of its brief constitutes waiver of the issue); City of
Phila. v. Berman, 863 A.2d 156 (Pa. Cmwlth. 2004) (same).
3
Nevertheless, even if properly preserved, we would find no error in
the Board’s decision denying Claimant’s appeal as untimely. 3 In UC cases, the
Board is the ultimate fact-finder and is empowered to resolve all conflicts in
evidence, witness credibility, and weight afforded to evidence. Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
As a result, unchallenged findings are conclusive on appeal. Campbell v.
Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth. 1997).
Section 502 of the Law states that a referee’s decision “shall be
deemed the final decision of the [B]oard, unless an appeal is filed therefrom,
within fifteen days after the date of such decision ….” 43 P.S. §822. “The
requirement that an appeal be filed within 15 days is jurisdictional, precluding
either the Board or a referee from further considering the matter.” Gannett
Satellite Info. Sys., Inc. v. Unemployment Comp. Bd. of Review, 661 A.2d 502,
504 (Pa. Cmwlth. 1995). Therefore, the time period for taking an appeal cannot be
extended as a matter of grace or mere indulgence. Russo v. Unemployment Comp.
Bd. of Review, 13 A.3d 1000 (Pa. Cmwlth. 2010).
There are, however, limited circumstances in which the Board may
consider an untimely appeal. Hessou v. Unemployment Comp. Bd. of Review, 942
A.2d 194 (Pa. Cmwlth. 2008). The burden to establish the right to an untimely
appeal is heavy in light of the mandatory statutory appeal period. Id. A claimant
3
Our review is limited to determining whether 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 (Pa. Cmwlth.),
appeal denied, 97 A.3d 746 (Pa. 2014).
4
can satisfy this burden by showing there was administrative breakdown or fraud, or
by showing non-negligent conduct outside the claimant’s control caused the delay.
Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130 (Pa. 1996); Hessou.
Failure to file an appeal within the statutory 15-day period without meeting this
burden mandates dismissal of the appeal. Hessou.
Here, the Board found that the referee issued a decision denying
Claimant benefits on December 31, 2014, and a copy of the referee’s decision was
mailed to Claimant at his last known address on that date. Bd. Op., F.F. Nos. 1, 2;
Certified Record (C.R.) at Item No. 9. The decision was accompanied by a notice
that advised Claimant he had 15 days to file a valid appeal. F.F. No. 3; C.R. at
Item No. 9. There is no indication the postal authorities returned the decision as
undeliverable. F.F. No. 4. Further, the referee’s decision specifically indicated in
two places that Claimant’s last day to appeal was January 15, 2015. C.R. at Item
No. 9. However, Claimant did not file his appeal by January 15, 2015, within 15
days of the mailing of the referee’s decision. Rather, he waited until January 21,
2015, six days after the expiration of the appeal period. F.F. No. 6; C.R. at Item
No. 10. Claimant does not challenge the Board’s findings; as such, they are
conclusive on appeal. Campbell.
As stated above, Claimant presents no developed argument regarding
the Board’s decision to dismiss his appeal of the referee’s decision as untimely.
However, in the Statement of the Scope of Review and Standard of Review and the
Statement of Questions Involved sections of his brief, Claimant very briefly asserts
his appeal of the referee’s decision was untimely because he received his mail late
5
from a neighbor after it was placed in the wrong mailbox.4 However, the record
lacks any evidence to substantiate this bare assertion because Claimant did not
seek a hearing as to the timeliness of his appeal despite an opportunity to do so.
To that end, on January 29, 2015, the Board advised Claimant by
letter of his right to request a hearing regarding the timeliness of his appeal. F.F.
No. 7; C.R. at Item No. 11. Claimant did not respond by the date set forth in the
letter. F.F. No. 8. As the Board indicated in its decision, pursuant to Section
101.61(a) of the Board’s regulations:
(a) If an appeal from a decision of the Department or an
application for further appeal 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
jurisdiction because of the late filing, and that the appeal
or application for further appeal will be dismissed
without a hearing unless the appealing party notifies the
tribunal in writing within the succeeding 15 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 15-day period, or if the appealing
party does not request a hearing, the tribunal shall
dismiss the appeal or application for further appeal.
34 Pa. Code §101.61(a) (emphasis added).
Failure to request a hearing on the timeliness of an appeal in
accordance with Section 101.61 of the Board’s regulations, and as directed in the
4
In his petition for review, however, Claimant asserts that he: “believe[s] th[e] [Board’s]
order is wrong because I didn’t receive my mail on time but when I did get it I sent the mail as
soon as possible it was my fault ….” Pet’r’s Pet. for Review, 4/7/15.
6
Board’s letter, warrants dismissal of the appeal. See Han v. Unemployment Comp.
Bd. of Review, 42 A.3d 1155 (Pa. Cmwlth. 2012). As we explained in Han:
[T]he Board is without jurisdiction to further consider the
matter under [S]ection 502 [of the Law], and it is
precluded from considering the facts underlying the
timeliness of [the] [c]laimant’s appeal unless they are
adduced at a hearing on that issue. [The] [c]laimant
prevented the Board from considering his claims
regarding the timeliness of his appeal by failing to
request such a hearing and, as a result, we are constrained
to conclude that the Board did not err in dismissing his
appeal as untimely.
Id. at 1158 (emphasis added). Here, Claimant did not request a hearing on the
timeliness of his appeal, and the Board, therefore, did not err in dismissing his
appeal. Accordingly, we affirm.
ROBERT SIMPSON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Fenwick, :
Petitioner :
:
v. : No. 515 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of October, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge