Appeal from the Order of the Unemployment Compensation Board of Review in the case of Donna E. Raichle, No. B-252979.
Paul J. Furlong, with him, Joseph V. Furlong, Jr., for petitioner.
Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 112 Pa. Commw. Page 299]
Donna E. Raichle (Petitioner) appeals an order of the Unemployment Compensation Board of Review dismissing her appeal of a referee's decision, denying her unemployment compensation benefits, as untimely. We reverse and remand.
A referee denied Petitioner unemployment compensation benefits on June 25, 1986. The envelope in which notification of the decision was mailed to Petitioner had a postmark of June 26, 1986. The box marked "decision mailing date" on the decision itself contained the date June 25, 1986. Petitioner filed her appeal with the Board on July 11, 1986. The Board dismissed the appeal as untimely.
Section 502 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822, provides 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. . . ." The Board's regulation, found at 34 Pa. Code § 101.82(b), provides that an appeal
shall be filed within the prescribed time if it is filed in the form and manner specified in this part on or before the 15th date after the date on which notification of the decision of the Department was delivered personally to the appellant, or mailed to him at his last known post office address. (Emphasis added.)
[ 112 Pa. Commw. Page 300]
The Board used the "decision mailing date" of June 25, 1986 as the date on which notification of the decision was mailed to Petitioner and determined that July 10, 1986 was the last date on which Petitioner could file her appeal and have it considered timely. Petitioner contends that the date on which notification of the decision was mailed should be the postmark date, June 26, 1986, which would make her appeal, filed on July 11, 1986, timely. The issue before us is what date constitutes the mailing date of the notification of a referee's decision for purposes of commencing the 15 day statutory appeal period.
The Pennsylvania Supreme Court addressed this issue in Schmidt v. Commonwealth, 495 Pa. 238, 433 A.2d 456 (1981). In that case, the timeliness of an appeal of a reassessment decision to the Board of Finance and Revenue was at issue. The appeal in that case was required to be made "[w]ithin sixty days after the date of mailing of notice by the department [of Revenue] of the decision on any petition for reassessment. . . ."*fn1 The decision being appealed in Schmidt contained no mailing date but the Department proved the decision had been mailed on March 21, 1978. The appeal from the reassessment had been filed on May 23, 1978 and the Board of Finance and Revenue dismissed it as untimely. The Supreme Court reversed the dismissal, stating:
[I]t is reasonable for the legislature to provide that the date of mailing of a reassessment decision shall commence the period for appeal. Implicit, however, is the duty of the Department to advise the taxpayer of the date of mailing. Without such notification, a taxpayer can have no reliable basis ...