W.L. Graham v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Wilma L. Graham, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 2055 C.D. 2010 Submitted: January 7, 2011 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: February 17, 2011 Wilma Graham (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee s determination that Claimant was ineligible for benefits because her appeal from the service center s determinations was untimely filed under Section 501(e) of the Unemployment Compensation Law (Law).1 The facts, as found by the Board, are as follows: 1. A Notice of Determination (determination) was issued to the claimant on June 4, 2010 denying benefits. 2. A copy of this determination was mailed to the claimant at her last known post office address on the same date. 1 P.S. §821(e). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 3. The notice informed the claimant that June 21, 2010 was the last day on which to file an appeal from this determination. 4. On June 11, 2010, the claimant contacted the U.C. officials and indicated that she was moving to North Carolina and she provided the U.C. officials with a new address. 5. The claimant moved to North Carolina on June 15, 2010. 6. The claimant contends that she did not receive the determination from the time it was issued on June 4, 2010 until the time she moved on June 15, 2010. 7. On July 1, 2010, the claimant advised the U.C. officials that she did not receive the determination. 8. A replacement copy was sent to the claimant. 9. The claimant filed her appeal by fax on July 6, 2010. 10. The claimant was not misinformed or misled by the unemployment compensation authorities concerning her right or the necessity to appeal. 11. The filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system or by non-negligent conduct. Board Opinion, September 17, 2010, (Opinion), Findings of Fact Nos. 1-11 at 1-2. The Board determined: An appeal to the unemployment compensation authorities is timely if it is filed on or before the last day to appeal. In this case, the appeal was filed by fax on July 6, 2010 which was after the expiration of the statutory appeal period. Although the claimant contends that she did not receive the original determination, the Board rejects as 2 not credible the claimant s testimony. Here, the determination was mailed to the claimant s last known address and was not returned as undeliverable. The Board recognizes the claimant s testimony that she moved to North Carolina; however, she did not do so until 11 days after the determination was issued. Therefore, the claimant s argument is also rejected for this reason. Opinion at 2. Claimant challenges the Board s Finding of Fact No. 6 that Claimant contends that she did not receive the determination notice issued on June 4, 2010, and that the Board erred when it determined that Claimant s conduct constituted willful negligence.2 Section 501(e) of the Law, 43 P.S. §821(e), provides that appeals from determinations contained in any notice required to be furnished by the department must be taken "within fifteen calendar days after such notice was delivered ... or was mailed to ... (claimant's) last known post office address." This Court has repeatedly and consistently held that the statutory time limit established for the filing of appeals is mandatory. The appeal period may be extended beyond the statutory limit only where, through acts constituting fraud or its equivalent, the compensation authorities have deprived a claimant of the right to appeal. Shimko v. Unemployment Compensation Board of Review, 422 A.2d 726 (Pa. Cmwlth. 1980). 2 This Court s review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or (Footnote continued on next page ¦) 3 An appeal nunc pro tunc may be granted in very limited situations where an appeal is untimely because of non-negligent circumstances, either as they relate to a claimant or his counsel, and the appeal is filed within a short time after the claimant or his counsel learns of and has an opportunity to address the untimeliness, and the employer is not prejudiced by the delay. UPMC v. Unemployment Compensation Board of Review, 852 A.2d 467 (Pa. Cmwlth. 2004). Here, the finding of fact that Claimant contends is not supported by substantial evidence simply states, The claimant contends that she did not receive the determination from the time it was issued on June 4, 2010 until the time she moved on June 15, 2010. Opinion, Finding of Fact No. 6 at 1. It is clear from the record that that was Claimant s own position and contention, so it is not possible for this Court to assign error on behalf of the Board. Claimant next contends that the Board erred as a matter of law when it determined that she did not have a good excuse for the untimely filing because when she informed the unemployment compensation authorities on June 11, 2010, that she was moving, she was not told that a notice was mailed to her on June 4, 2010. She also asserts that the United States Post Office mishandled the notice. (continued ¦) findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). 4 The record reflects that the determination was mailed to Claimant on June 4, 2010, to 526 W. Marshall Street Apartment F, West Chester, PA 193802260. Claimant confirmed that was her address on June 4, 2010. There is no evidence in the record that the determination was returned as undeliverable. When a notice is mailed to a claimant s last known post office address and not returned by 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. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825 (Pa. Cmwlth. 1979). Claimant testified that she did not receive this notice. Notes of Testimony, August 3, 2010, at 5. However, this Court has consistently held that a simple statement that a notice was not received is insufficient to extend the time for filing an appeal. Further, the Board specifically did not find Claimant credible. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Claimant did not establish any fraud or conduct by the unemployment compensation authorities. Furthermore, Claimant did not establish any non- 5 negligent circumstances that prevented her from filing the appeal in a timely manner. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Wilma L. Graham, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 2055 C.D. 2010 ORDER AND NOW, this 17th day of February, 2011, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge
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