IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bobbi Sue Borne, :
Petitioner :
: No. 2016 C.D. 2015
v. :
: Submitted: September 2, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 30, 2016
Bobbi Sue Borne (Claimant) petitions, pro se, for review of the
September 21, 2015 order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s decision dismissing Claimant’s appeal as
untimely pursuant to section 501(e) of the Unemployment Compensation Law
(Law).1
The relevant facts and procedural history of this case are as follows.
Claimant worked for Vincentian Home (Employer) as a part-time dietary aide from
April 10, 2012, to April 17, 2013. Claimant was terminated as of April 19, 2013.
1
Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e).
Nevertheless, Claimant sought and received unemployment compensation benefits
after alleging her reason for separation was a lack of work with Employer. Claimant
received these benefits for a period of twenty weeks, with her first payment covering
the week ending May 4, 2013. Two years later, on April 30, 2015, the Bureau of UC
Benefits and Allowances sent questionnaires to both Claimant and Employer,
requesting that they complete and return the same in order to determine Claimant’s
eligibility for benefits.2 Claimant did not return the questionnaire. Employer did
return its questionnaire, indicating that Claimant was discharged effective April 19,
2013, because of her attitude and demeanor toward its residents and their family
members.
The local service center thereafter issued a UC Overpayment
Classification Worksheet alleging that Claimant received an overpayment of benefits
due to fraud by reporting that her reason for separation from Employer was a lack of
work. On June 25, 2015, the local service center issued three separate notices of
determinations. The first notice held that Claimant was ineligible for benefits under
section 402(e) of the Law, 43 P.S. §802(e).3 The second notice included a
determination that Claimant received a fault overpayment of $2,280.00 in
unemployment compensation benefits pursuant to section 804(a) of the Law, 43 P.S.
§874(a).4 The third notice included a penalty determination of twenty-two weeks and
2
The record is unclear as to the reason for the lengthy delay in this matter.
3
Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any
week in which her unemployment is due to her discharge from work for willful misconduct
connected with her work.
4
Section 804(a) of the Law provides, in pertinent part, that “[a]ny person who by reason of
his fault has received any sum as compensation under this act to which he was not entitled, shall be
(Footnote continued on next page…)
2
$342.00 pursuant to section 801(b) of the Law, 43 P.S. §871(b), as a result of the
knowingly false statement she made regarding her separation from employment in
order to obtain benefits.5 Each of these notices specifically advised Claimant that the
last day to file an appeal was July 10, 2015.
Claimant, however, did not file her appeals until July 14, 2015. The
referee held a hearing on August 11, 2015, limited to the issue of the timeliness of
Claimant’s appeals. Claimant testified that she did not receive the notices of
determinations until Friday, July 10, that she worked on Monday, July 13, and that
(continued…)
liable to repay to the Unemployment Compensation Fund to the credit of the Compensation
Account a sum equal to the amount so received by him and interest. . . .” 43 P.S. §874(a).
5
Section 801(b) provides as follows:
Whoever makes a false statement knowing it to be false, or
knowingly fails to disclose a material fact to obtain or increase any
compensation or other payment under this act or under an
employment security law of any other state or of the Federal
Government or of a foreign government, may be disqualified in
addition to such week or weeks of improper payments for a penalty
period of two weeks and for not more than one additional week for
each such week of improper payment: Provided, That no additional
weeks of disqualification shall be imposed under this section if
prosecution proceedings have been instituted against the claimant
because of such misrepresentation or non-disclosure. The
departmental determination imposing penalty weeks under the
provisions of this subsection shall be subject to appeal in the manner
provided in this act for appeals from determinations of compensation.
The penalty weeks herein provided for shall be imposed against any
weeks with respect to which the claimant would otherwise be eligible
for compensation, under the provisions of this act, which begin within
the four year period following the end of the benefit year with respect
to which the improper payment or payments occurred.
43 P.S. §871(b).
3
Tuesday, July 14, was the first day she was able to file her appeals. Claimant
acknowledged that the notices included a mailing date of June 25, 2015. Upon
questioning by Employer’s representative, Claimant confirmed her mailing address as
528 Demmler Drive, Pittsburgh, Pennsylvania, the same address listed on the notices.
Claimant then stated that her mail was “very bad” and that she had complained about
her mailman to the post office, but had never filed a formal complaint. (Notes of
Testimony (N.T.), 8/11/15, at 6.)
By decision dated August 12, 2015, the referee dismissed Claimant’s
appeal as untimely. The referee found that the notices were sent to Claimant’s last
known post office address and were not returned as undeliverable. The referee stated
that section 501 of the Law includes a mandatory 15-day appeal period, “absent fraud
or wrongful conduct on the part of the authorities.” (Referee’s decision at 2.) The
referee acknowledged Claimant’s testimony that she had continuing problems with
her mail, but noted that it was her obligation to address this problem by filing a
formal complaint with the postal authorities or making daily trips to the post office to
retrieve her mail. Claimant appealed to the Board, which affirmed the referee’s
decision and adopted and incorporated the referee’s findings and conclusions.
On appeal to this Court,6 Claimant argues that the Board erred in
dismissing her appeal as untimely.7 We disagree.
6
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).
7
In her brief, Claimant frames the issue as “[w]hether respondent erred in finding that there
was insufficient evidence that the claimant did not respond in due time to the appeal.” (Claimant’s
brief at 4.)
4
In pertinent part, section 501(e) of the Law provides that an appeal from
a notice of eligibility determination must be filed “within fifteen calendar days after
such notice was delivered to him personally, or was mailed to his last known post
office address.” 43 P.S. §821(e). If an appeal is not filed within fifteen days of
mailing, the determination becomes final and the Board is without jurisdiction to
consider the matter. Roman-Hutchinson v. Unemployment Compensation Board of
Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009).
When notice is mailed to a claimant’s last known address and not
returned by the postal authorities as undeliverable, the claimant is presumed to have
received it and, absent extraordinary circumstances, is barred from filing an untimely
appeal. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825,
827 (Pa. Cmwlth. 1979). The presumption of receipt “is based on the notion that,
once the notice, properly addressed, is placed in the mail, there are usually two
options: either the notice will be delivered as addressed, or, if it cannot be delivered,
it will be returned to the sender.” Volk v. Unemployment Compensation Board of
Review, 49 A.3d 38, 41 (Pa. Cmwlth. 2012) (en banc). “Although those two options
are the most likely to occur in our experience, there are occasions in which mail is
lost or not delivered for some reason.” Id.
If certain requirements are established, a party may proceed nunc pro
tunc, or “now for then,” with an untimely appeal. Hessou v. Unemployment
Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). “An
appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by
extraordinary circumstances involving fraud, administrative breakdown, or non-
negligent conduct, either by a third party or by the appellant.” Mountain Home
Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484, 487
5
(Pa. Cmwlth. 2008). An appellant may satisfy this burden in one of two ways:
“First, [s]he can show the administrative authority engaged in fraudulent behavior or
manifestly wrongful or negligent conduct. Second, [s]he can show non-negligent
conduct beyond [her] control caused the delay.” Hessou, 942 A.2d at 198.
In the present case, Claimant has not presented any evidence establishing
fraud or wrongful or negligent conduct on the part of the administrative authorities.
Rather, Claimant alleges the negligent conduct of a third party, her mailman, was
responsible for her delay in filing her appeals. This Court has recognized that a
claimant can rebut the presumption of receipt by providing credible testimony that
she was having difficulty with her mail delivery. See, e.g., Short v. Unemployment
Compensation Board of Review (Pa. Cmwlth., Nos. 895-900 C.D. 2015, filed
February 24, 2016) (a claimant’s testimony alone, if credited by the Board, can
support a finding of fact relating to problems with mail delivery). 8 However, the
Board essentially rejected Claimant’s testimony in this regard as not credible,9 and
concluded that if Claimant was having problems with her mail, she should have filed
a formal complaint with the postal authorities. Claimant admitted before the referee
that she had not filed such a complaint. (N.T., 8/11/15, at 6.) In essence, Claimant is
asking this Court to re-weigh the evidence in her favor, something we cannot do. See
Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1090
8
Pursuant to this Court’s Internal Operating Procedures, unreported decisions may be cited
for their persuasive value but not as binding precedent. 210 Pa. Code §69.414(a).
9
The law is well settled that the Board has exclusive province over questions of credibility
and evidentiary weight and “need not accept even the uncontroverted testimony of the claimant . . .
.” Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth.
1981).
6
(Pa. Cmwlth. 1997) (this Court cannot re-weigh the facts as found by the
administrative agency).
Claimant also alleges in her brief that she had a witness with her at the
referee’s hearing to corroborate her testimony that she did not receive the notices
until July 10, 2015, but that witness was not allowed to testify. However, Claimant’s
allegation is contradicted by the record. Claimant brought a single witness with her
to the referee’s hearing. Near the conclusion of the hearing, the referee asked
Claimant if she wanted her witness to offer any testimony, to which Claimant
responded “[n]o, she could – the only reason she’s here [sic] to offer testimony on
my, you know what [sic] did at [Employer].” (N.T., 8/11/15, at 7.) The referee noted
that the reasons underlying her termination from Employer were not part of that day’s
hearing.
Because Claimant failed to file her appeals on or before July 10, 2015,
i.e., within 15 days of the issuance of the notices of determinations, and did not
establish fraud, administrative breakdown, or non-negligent conduct sufficient to
warrant a nunc pro tunc appeal, the Board did not err in dismissing her appeal as
untimely.
Accordingly, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bobbi Sue Borne, :
Petitioner :
: No. 2016 C.D. 2015
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 30th day of November, 2016, the order of the
Unemployment Compensation Board of Review, dated September 21, 2015, is
hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge