May 11, 2009
SAMANTHA ROMAN-HUTCHINSON, PETITIONER
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
The opinion of the court was delivered by: Senior Judge Friedman
Submitted: April 3, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Samantha Roman-Hutchinson (Claimant) petitions for review of the September 24, 2008, order of the Unemployment Compensation Board of Review (UCBR), which dismissed as untimely Claimant's appeal from a referee's decision denying Claimant unemployment compensation (UC) benefits. We affirm.
On April 21, 2008, Claimant was discharged from her employment, and, thereafter, a local job center denied her application for UC benefits. Claimant appealed to a referee, who affirmed the denial of benefits by a decision and order dated June 17, 2008. On the same day, the referee mailed the decision to Claimant at her last known post office address. The mailing included a notice advising Claimant that she had fifteen days, until July 2, 2008, to file a valid appeal.
Claimant filed an appeal with the UCBR, which held an initial hearing on the timeliness of Claimant's appeal. Following the hearing, the UCBR found that:
(1) Claimant received the referee's decision; (2) Claimant asserted that she appealed the decision via email on June 30, 2008; (3) the UC authorities did not receive the emailed appeal; (4) the UC authorities received a faxed appeal on July 17, 2008; (5) Claimant was not misinformed or misled by the UC authorities concerning her right or the need to appeal; and (6) Claimant's 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. (UCBR's Findings of Fact, Nos. 7-11.) The UCBR noted that its regulations, as well as the appeal instructions sent to all claimants, state that a party choosing to file by email accepts the risk that the appeal may not be properly filed due to delay or disruption of electronic signals and that an appeal sent by email will be deemed filed on the date of receipt recorded by the Department of Labor and Industry's (Department) electronic transmission system. (UCBR's op. at 2.) Based on its findings, the UCBR concluded that Claimant's appeal was untimely. Therefore, the UCBR dismissed Claimant's appeal based on a lack of jurisdiction.*fn1
On appeal to this court,*fn2 Claimant argues that the UCBR erred in dismissing her appeal as untimely because there was a breakdown in the administrative process; specifically, Claimant asserts that something in the email system went awry and led to the UC authority's failure to receive her timely-sent email appeal. Moreover, relying on the "mailbox rule,"*fn3 Claimant contends that she overcame the contention that the UC authorities did not receive her appeal by submitting a copy of the June 30, 2008, email, with proof that it was sent to the correct email address. We disagree.
Although the "mailbox rule" applies to mailings via the post office, the Department's regulation at 34 Pa. Code §101.82(b)(4) controls emailed appeals. That regulation provides as follows:
Electronic transmission other than fax transmission. The date of filing is the receipt date recorded by the Department appeal office or the [UCBR's] electronic transmission system, if the electronic record is in a form capable of being processed by that system. A party filing by electronic transmission shall comply with Department instructions concerning format. A party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
34 Pa. Code §101.82(b)(4). (Emphasis added.) Thus, even if Claimant emailed her appeal before the appeal deadline, it was untimely because it was not received by the UC authorities until after the deadline. McClean v. Unemployment Compensation Board of Review, 908 A.2d 956 (Pa. Cmwlth. 2006). Consequently, Claimant's argument fails. Further, the regulation clearly contemplates malfunction in the email delivery system and places the resulting risk of an untimely filing on the Claimant.
Claimant next asserts that she is entitled to nunc pro tunc relief based on our decisions in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) and Perry v. Unemployment Compensation Board of Review, 459 A.2d 1342 (Pa. Cmwlth. 1983), wherein we held that nunc pro tunc relief is appropriate where the untimeliness of an appeal is due to non-negligent conduct.*fn4 However, because the regulation expressly provides that Claimant assumed the risk of an untimely filing when she chose to file her appeal by email, the rationale in Bass and Perry is inapplicable here.
Accordingly, we affirm.
AND NOW, this 11th day of May, 2009, the order of the Unemployment Compensation Board of Review, dated September 24, 2008, is hereby affirmed.
ROCHELLE S. FRIEDMAN, Senior Judge