IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandy L. Witmer, :
Petitioner :
:
v. : No. 1214 C.D. 2016
: SUBMITTED: January 13, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: May 16, 2017
Brandy Witmer (Claimant) petitions, pro se, for review from the
decision of the Unemployment Compensation Board of Review (Board), affirming
a referee’s decision dismissing Claimant’s appeal of her denial for unemployment
compensation benefits by the Department of Labor & Industry (Department). The
dismissal was based on the referee’s determination that Claimant’s appeal was
untimely under section 501(e) of the Unemployment Compensation Law (Law).1
We affirm.
Claimant was employed by the Commonwealth of Pennsylvania,
Department of General Services, for approximately 19 years. At the conclusion of
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).
her employment with the Commonwealth, Claimant filed for unemployment
compensation benefits on September 20, 2015. Thereafter, Claimant was
employed as a server by GMRI, Inc., from October 6, 2015 until October 31, 2015.
On December 9, 2015, the Department issued a Notice of
Determination (Notice) to Claimant denying benefits under section 402(b) of the
Law because she voluntarily quit her job with GMRI. On that same date, the
Notice was mailed to Claimant at her last known address. The Notice stated that
December 24, 2015 was the last day on which she could file an appeal of the
determination. On January 12, 2016, Claimant told a Department representative
that she had not received the copy of the Notice mailed to her on December 9,
2015. The Department mailed a second copy of the Notice to Claimant, who filed
an appeal on January 20, 2016.
A hearing was scheduled for March 3, 2016 before a referee.
Claimant did not attend the hearing because she did not receive notice of the
hearing until the afternoon of March 3, 2016, after the hearing had taken place.
The next day, the referee issued a decision and order dismissing Claimant’s appeal
as untimely.
Claimant appealed the referee’s dismissal to the Board. On April 4,
2016, the Board issued a memorandum directing the referee to schedule a remand
hearing to take evidence on the reason for Claimant’s non-appearance at the March
3, 2016 hearing; the timeliness of Claimant’s appeal from the Department’s
determination; and on the merits of her claim. Claimant provided such evidence at
2
the remand hearing on April 20, 2016. Thereafter on June 2, 2016, the Board
issued a decision and order dismissing Claimant’s appeal and affirming the
decision of the referee that Claimant’s appeal was untimely. This appeal
followed.2
The issue in this case is whether Claimant filed a timely appeal to the
Department’s determination that she was ineligible for benefits. Section 501(e) of
the Law provides that determinations by the Department become final if not
appealed within fifteen days after the notice mailing date. 43 P.S. § 821(e). The
Board does not have jurisdiction to consider an untimely appeal. Edwards v.
Unemployment Compensation Board of Review, 639 A.2d 1279, 1281 (Pa.
Cmwlth. 1994). The fifteen-day limit is mandatory absent fraud or manifestly
wrongful or negligent conduct of the administrative authorities. Polakovic v.
Unemployment Compensation Board of Review, 531 A.2d 852 (Pa. Cmwlth. 1987).
Appellants carry a heavy burden to justify an untimely appeal. Blast Intermediate
Unit No. 17 v. Unemployment Compensation Board of Review, 645 A.2d 447, 449
(Pa. Cmwlth. 1994).
The Department mailed the Notice to Claimant’s last known mailing
address on December 9, 2015. The Notice stated that December 24, 2015 was the
deadline for Claimant to appeal the determination. Claimant filed her appeal on
January 20, 2016. The Board found that there was no evidence that the Notice was
2
Our standard of review is limited to determining whether constitutional rights were
violated, an error of law was committed, or necessary findings of fact are supported by
substantial evidence. Kirkwood v. Unemployment Compensation Bd. of Review, 525 A.2d 841,
843-44 (Pa. Cmwlth. 1987).
3
returned as undeliverable by postal authorities. The Board also found that
Claimant’s testimony that she did not receive the December 9, 2015 Notice was
not credible. The Board concluded that Claimant’s appeal was untimely.
Claimant argues here, as she did before the referee and the Board, that
she did not receive the Notice mailed to her on December 9, 2015 because she was
experiencing difficulty receiving her mail from a new mail carrier. She seeks to
relitigate the factual findings of the Board. However, in an unemployment
compensation case, “the Board is the ultimate finder of fact, and questions of
credibility. . . are matters for the Board as factfinder and not for a reviewing court.”
Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087
(Pa. Cmwlth. 1997) (citation omitted).
“Where 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 is barred from attempting to appeal after the expiration of the
appeal period provided in section 501(e) of the Law.” Mihelic v. Unemployment
Compensation Board of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979) (citation
omitted). In this case there was no credible evidence to rebut that presumption.
A review of the record confirms that the Board’s findings are
supported by substantial evidence. The Board did not err in dismissing Claimant’s
appeal as untimely under section 501(e) of the Law. Accordingly, we affirm.
__________________________________
JULIA K. HEARTHWAY, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandy L. Witmer, :
Petitioner :
:
v. : No. 1214 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 16th day of May, 2017, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge