IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Bashinsky, :
Petitioner :
:
v. : No. 485 C.D. 2020
: Argued: December 7, 2020
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 24, 2021
Thomas Bashinsky (Claimant) petitions for review of an adjudication
of the Unemployment Compensation Board of Review (Board), which affirmed the
Referee’s decision to dismiss Claimant’s appeal as untimely under Section 501(e) of
the Unemployment Compensation Law (Law), 43 P.S. §821(e).2 Claimant contends
that the Board erred in concluding that he was not entitled to appeal nunc pro tunc
due to a breakdown in the administrative process.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e). It
states:
Unless the claimant or last employer or base-year employer of the claimant files an
appeal with the board, from the determination contained in any notice required to
be furnished by the department under section five hundred and one (a), (c) and (d),
within fifteen calendar days after such notice was delivered to him personally, or
was mailed to his last known post office address, and applies for a hearing, such
determination of the department, with respect to the particular facts set forth in such
notice, shall be final and compensation shall be paid or denied in accordance
therewith.
Id.
Claimant filed a claim for unemployment compensation benefits on
October 13, 2019. The Unemployment Compensation (UC) Service Center issued
a notice of determination dated December 10, 2019, finding Claimant ineligible for
benefits under Section 402(h) of the Law, 43 P.S. §802(h),3 for the stated reason that
he was a corporate officer of the separating employer and owned stock in the
corporation; as such, Claimant exercised substantial control over the corporation’s
operations. The notice was addressed to Claimant at 15 Catherine Street,
Barnesville, PA, 18214. The notice advised Claimant that “[t]he final day to file a
timely appeal to this determination is December 26, 2019.” Certified Record at 21
(C.R. __). On February 4, 2020, Claimant appealed the notice of determination. A
hearing was scheduled before the Referee to address the timeliness of Claimant’s
appeal and the merits of the UC Service Center’s decision.
At the hearing, Claimant testified that he applied for unemployment
benefits in October 2019 and had not received a notice of determination by
December 2019. On December 23, 2019, he went to the Department’s website and
engaged in the following online “LiveChat” with a representative named Jordan:
[Claimant]: Any update on my claim?
Jordan: Can you also provide me w/ your email, please?
[Claimant]: [email address omitted]
Jordan: Your claim is undergoing an adjudication process, so
you won’t automatically see payment. The examiner has to
address the separation from your employer before you can be
paid; you will receive the determination in the mail. If you
disagree, you have 15 days from the mail date to file an appeal.
3
It states, in pertinent part: “An employe shall be ineligible for compensation for any week … [i]n
which he is engaged in self-employment[.]” 43 P.S. §802(h).
2
Also, you need to ensure that you are completing your work
search requirements.
Jordan: You’re due to file again on 01/05/2020.
[Claimant]: Ok thank you.
C.R. 60; Reproduced Record at 4a (R.R. __). Claimant testified that he contacted
the Department again via the LiveChat system on February 4, 2020, because he still
had not received a notice of determination. He had the following exchange with a
representative named Angela:
[Claimant]: I am checking on my claim I signed up in October
and still have not heard anything.
Angela: You should have received the determination that was
mailed 12/9, you did not receive it?
[Claimant]: No I did not receive it.
Angela: You were found ineligible for benefits.
[Claimant]: Can you tell me why?
[Claimant]: Can you email me the paperwork?
Angela: We can’t email, I can reprint and mail.
[Claimant]: [A]lso I had a chat on Dec 23, 2019 and they did not
say anything about the determination.
C.R. 61; R.R. 5a. Angela then explained to Claimant that the UC Service Center
had determined he was ineligible for benefits under Section 402(h) of the Law. At
Claimant’s request, Angela agreed to reprint the notice of determination and mail it
to Claimant’s address at 15 Catherine Street, Barnesville, PA, 18214. Angela further
advised Claimant to file an appeal, which he did on February 4, 2020.
3
The Referee dismissed Claimant’s appeal as untimely under Section
501(e) of the Law because it was not filed within 15 days of the mailing date of the
notice of determination. Claimant appealed to the Board, which affirmed the
Referee’s decision. The Board adopted the Referee’s findings and conclusions and,
additionally, discredited Claimant’s testimony that he did not receive the December
10, 2019, notice of determination until February 2020. The Board rejected
Claimant’s argument that UC representative Jordan should have informed Claimant
during the LiveChat session on December 23, 2019, that a notice of determination
had been mailed to him. The Board noted that Jordan did inform Claimant he would
receive a determination in the mail, which was accurate information. Claimant now
petitions for this Court’s review.
On appeal,4 Claimant argues that the Board erred in holding that he was
not entitled to appeal the UC Service Center’s determination nunc pro tunc.
Claimant contends that he established a breakdown in the administrative process
because UC representative Jordan provided him with incorrect information during
the December 23, 2019, LiveChat session. More specifically, Jordan informed
Claimant that his claim was “undergoing an adjudication process,” C.R. 60; R.R. 4a,
thereby implying the adjudication process had not been completed, even though the
UC Service Center had issued a notice of determination 13 days earlier on December
10, 2019. Jordan learned during their chat that Claimant did not receive the notice,
but he did not alert Claimant that the UC Service Center had already decided to deny
his application. Nor did he alert Claimant to the deadline, three days later, for
4
Our review determines whether the necessary findings of fact were supported by substantial
evidence, whether errors of law were committed, or whether constitutional rights were violated.
Carney v. Unemployment Compensation Board of Review, 181 A.3d 1286, 1287 n.2 (Pa. Cmwlth.
2018).
4
appealing that decision. Instead, Jordan provided Claimant with misdirection.
Claimant argues that this conversation, coupled with the fact that he did not receive
a timely copy of the notice of determination, entitled him to nunc pro tunc relief.
The Board counters that Claimant did not prove good cause for his late
appeal. The Board observes that Jordan gave Claimant accurate information about
the process, i.e., that he would receive a determination at the conclusion of the
adjudicatory process and would then have 15 days to file an appeal. Claimant’s
evidence did not establish that Jordan knew that a notice of determination had
already been mailed to Claimant or that Claimant had not received it. The Board
also points out that it expressly discredited Claimant’s testimony that he did not
receive the December 10, 2019, notice of determination until February 2020. The
mailing date on the notice is corroborated by the Department’s records and, thus,
there is a presumption that it was mailed to and received by Claimant in due course.
Section 501(e) of the Law requires a claimant to appeal a notice of
determination within 15 calendar days of the date the “notice was delivered to him
personally, or was mailed to his last known post office address[.]” 43 P.S. §821(e).
“Failure to file a timely appeal as required by Section 501(e) of the Law is a
jurisdictional defect.” Carney v. Unemployment Compensation Board of Review,
181 A.3d 1286, 1288 (Pa. Cmwlth. 2018). “The time limit for a statutory appeal is
mandatory; it may not be extended as a matter of grace or indulgence.” Id. In limited
circumstances, however, the Board may consider an untimely appeal nunc pro tunc.
To justify an exception to the appeal deadline, “[a claimant] must demonstrate that
his delay resulted from extraordinary circumstances involving fraud, a breakdown
in the administrative process, or non-negligent circumstances relating to [the
claimant] himself.” Id. “[N]egligence on the part of an administrative official may
5
be deemed the equivalent of fraud.” ATM Corporation of America v. Unemployment
Compensation Board of Review, 892 A.2d 859, 864 n.11 (Pa. Cmwlth. 2006)
(citation omitted).
Here, Claimant argues that he should have been permitted to appeal the
UC Service Center’s notice of determination nunc pro tunc because a breakdown in
the administrative process occurred. Claimant asserts that he was never timely
served with the December 10, 2019, notice of determination. He further contends
that Jordan gave him inaccurate information during the December 23, 2019,
LiveChat session. Claimant analogizes his case to ATM Corporation of America,
892 A.2d 859, which he argues is factually similar.
In ATM Corporation of America, the claimant called the UC service
center on March 14, 2005, to report that she was still unemployed, as is required for
one seeking benefits. A UC representative asked the claimant if she had received a
notice denying her claim that had been mailed March 7. When the claimant
answered in the negative, the representative told her another copy would be sent.
One week later, when she still had not received the promised notice, the claimant
called the service center again. The notice was sent that day, and the claimant
received it late in the afternoon of March 22, 2005, which was the date of the appeal
deadline. The claimant called the service center, and a representative advised her
that if she mailed her appeal the next day, noting the date and time she received the
notice, it would be accepted. The referee and the Board held that the appeal was
timely. The employer appealed, challenging the Board’s finding that the claimant
had received the notice denying her claim on March 22. The employer argued that
the Board’s finding was not based upon substantial evidence because the notice itself
indicated that it was mailed March 7 and was not returned to the service center as
6
undeliverable. The employer further argued that the claimant’s “self-serving
statement that she did not receive the notice” was inadequate to justify her late
appeal. Id. at 864.
On review, this Court affirmed the Board’s holding that the claimant’s
appeal was timely. Crucial to that decision was the fact that the claimant’s testimony
about her conversations with the UC representatives was confirmed by the phone
logs and correspondence file of the UC service center. The evidence established,
first, that the service center did not send the promised notice of determination until
after the claimant called a second time. Second, the claimant was counseled by a
UC representative to file her appeal one day after the deadline stated on the notice.
The Board found, as fact, that the claimant did not receive the first notice by crediting
the claimant’s testimony, which was corroborated by the service center’s records.
ATM Corporation of America is factually similar but distinguishable.
Here, as in that case, Claimant was counseled to appeal by a UC representative,
Angela, and he did so. Likewise, Claimant’s testimony about his conversations with
the UC representatives was confirmed by the records of the UC service center, i.e.,
the LiveChat transcripts. However, in ATM Corporation of America, the Board
credited the claimant’s testimony that she did not receive the notice until the day of
the appeal. Here, by contrast, the Board did not credit Claimant’s testimony that he
did not receive the December 10, 2019, notice of determination until February 2020.
In challenging the Board’s decision, Claimant focuses on the substance
of his conversation with Jordan, which Claimant characterizes as misdirection.
Instead of responding to Claimant’s specific request for an update on his claim,
Jordan gave Claimant a primer on the law and applicable procedures. Jordan appears
to have checked Claimant’s file in the course of their conversation because he
7
advised Claimant “to file again on 01/05/20.” C.R. 60; R.R. 4a. It is difficult to
believe that Jordan did not know the status of Claimant’s claim when he informed
Claimant that “[y]our claim is undergoing an adjudication process[.]” Id.
Nevertheless, the Board asserts that it was Claimant’s burden to prove that Jordan
knew that Claimant’s application had been denied when they spoke in order to prove
an administrative breakdown.
The dispositive issue is whether the evidence supports the Board’s
finding that Claimant received a timely notice of determination. In support of that
finding, the Board emphasizes that where a notice of determination is mailed to a
claimant’s last known address and not returned by postal authorities as
undeliverable, the claimant is presumed to have received it. Mihelic v.
Unemployment Compensation Board of Review, 399 A.2d 825, 827 (Pa. Cmwlth.
1979). Here, the notice states that it was mailed December 10, 2019, to Claimant’s
correct mailing address at 15 Catherine Street, Barnesville, PA, 18214. C.R. 21.
The Board posits that the mailing date is corroborated by the claim record. See
Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1192
(Pa. Cmwlth. 2016) (“[T]he presumption of receipt is ‘inapplicable’ in the absence
of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed,
there can be no presumption that it was received.’”) (citations omitted). The Board
argues that Claimant failed to rebut the presumption of receipt. We disagree.
Beginning with the mailing date, the Board cites as corroborating
evidence the first item in the certified record, which is a printout of the UC Service
Center’s record for Claimant’s claim. This document does not, as the Board asserts,
indicate that the notice was mailed to Claimant on December 10, 2019. On the first
page of the claim record under “General Annotations” there is an entry for “191209,”
8
or December 9, 2019, that states: “DET=CLT INELIG CORPORATE OFFICER,
THE CLAIMANT MUST EARN 6X TO BE ELIG FOR BENEFITS.” C.R. 3.
Presumably, the abbreviation “DET” means “Determination,” and “CLT INELIG
CORPORATE OFFICER” means that the UC Service Center determined Claimant
was ineligible for benefits under Section 402(h) because he was a corporate officer
of the separating employer. There is no annotation indicating that the determination
was mailed on “191210,” or December 10, 2019. Similarly, on the third page of the
claim record, under the heading “Determinations and Appeals,” there is an entry for
“191209” indicating that the determination was made that Claimant is an “INELIG
CORP OFFICER[.]” C.R. 5. There is no entry in the claim record indicating that a
notice of determination was mailed on December 10, 2019.
We also reject the Board’s argument that Claimant failed to rebut the
presumption that he received the notice of determination. The Board emphasizes
that it discredited Claimant’s testimony that he did not receive the notice on time,
and that this Court is bound by that finding. See Serrano v. Unemployment
Compensation Board of Review, 149 A.3d 435, 439 (Pa. Cmwlth. 2016) (quoting
Peak v. Unemployment Compensation Board of Review, 501 A.2d 1381, 1388 (Pa.
1985) (“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.”)). In this case, however, the Board’s credibility determination is an
insufficient basis for denying nunc pro tunc relief. This is not a case where the
claimant made an after-the-fact assertion that he did not receive a notice of
determination. Claimant’s act of initiating the LiveChat session with Jordan and
asking whether there was “[a]ny update on my claim?,” C.R. 60, R.R. 4a, is itself
9
evidence that he had not received the notice because, if he had, there would have
been no reason for Claimant to contact the UC Service Center.
In sum, the Board’s finding that Claimant received the December 10,
2019, notice of determination on time is not supported by substantial evidence.
Claimant’s act of contacting the UC Service Center for an update on his claim
rebutted the presumption of receipt and was evidence that he did not receive the
notice. In sum, Claimant demonstrated a breakdown in the administrative process.
Accordingly, we reverse the Board’s adjudication and remand for a
determination on the merits of Claimant’s claim for benefits.
_____________________________________
MARY HANNAH LEAVITT, President Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Bashinsky, :
Petitioner :
:
v. : No. 485 C.D. 2020
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW this 24th day of February, 2021, the adjudication of the
Unemployment Compensation Board of Review dated April 24, 2020, is
REVERSED, and the above-captioned matter is REMANDED for a determination
on the merits of Petitioner’s claim for unemployment compensation benefits.
Jurisdiction relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge