Fenwick v. Unemployment Comp. Bd. of Review - 2015 Pa. Commw. Unpub. LEXIS 770 (Commw. Ct. Oct. 23, 2015)

Rule:

Section 502 of the Law states that a referee's decision shall be deemed the final decision of the Board, 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. Therefore, the time period for taking an appeal cannot be extended as a matter of grace or mere indulgence. Also, 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 Board's letter, warrants dismissal of the appeal.

Facts:

Petitioner Anthony Fenwick, claimant, worked for ABM Security Services as a security officer. After his separation from employment in July 2014, he applied for unemployment compensation (UC) benefits, which were initially granted. Thus, the employer appealed. After a hearing, the referee issued a decision denying petitioner’s UC benefits. The referee's decision was mailed to Claimant at his last known post office address on December 31, 2015. The referee's decision was accompanied by notice advising interested parties that they had 15 days in which to file an appeal. The 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. However, petitioner filed his appeal to respondent Unemployment Compensation Board of Review on January 21, 2015. Respondent then sent him 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. But petitioner did not respond by the date set forth in the respondent’s letter. Respondent subsequently issued a decision dismissing petitioner appeal as untimely under Section 502 of the Unemployment Compensation Law. Petitioner, representing himself, petitioned for review from an order of the respondent Board. 

Issue:

Did the respondent correctly dismissed petitioner claimant’s appeal for being untimely?

Answer:

Yes.

Conclusion:

The court found no error in the respondent’s decision denying petitioner’s appeal as untimely. The court held that in UC cases, respondent Board was the ultimate fact-finder and was empowered to resolve all conflicts in evidence, witness credibility, and weight afforded to evidence. As a result, unchallenged findings are conclusive on appeal. Failure to file an appeal within the statutory 15-day period without meeting this burden mandates dismissal of the appeal. However, there were limited circumstances in which the respondent may consider an untimely appeal. The court ruled that the burden to establish the right to an untimely appeal was heavy in light of the mandatory statutory appeal period. Hence, a claimant 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. Here, petitioner did not challenge respondent’s findings, as such, they were conclusive on appeal. Additionally, petitioner presented no developed argument regarding the respondent’s decision to dismiss his appeal of the referee's decision as untimely. Hence, failure to request a hearing on the timeliness of an appeal in accordance with Section 101.61 of the respondent’s regulations, and as directed in the latter’s letter, warrants dismissal of the appeal.