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Rex G. Bennett v. Unemployment Compensation Board of Review

December 16, 2011

REX G. BENNETT, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge President Judge

Argued: September 14, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRCIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE BROBSON

Presently before the Court is an appeal from a decision of the Unemployment Compensation Board of Review (Board), which ruled that Claimant Rex G. Bennett (Claimant) failed to take a timely appeal from the Altoona UC Service Center's (UC Center) Notice of Redetermination, Notice of Determination of Overpayment of Benefits, and Notice of Penalty Weeks Determination (collectively, "NOD").*fn1 In so ruling, the Board affirmed the determination of the Referee, adopting and incorporating the Referee's findings of fact and conclusions of law. We now reverse the Board and remand the matter for further proceedings consistent with this Opinion.

The UC Center issued the NOD on June 10, 2010. The NOD included appeal instructions, noting that the last day to appeal the NOD was June 25, 2010. The NOD also provided the following with respect to appeals by electronic mail (e-mail):

If you file your appeal by e-mail, the appeal is filed on the date of receipt recorded by the Department's electronic transmission system, if the e-mail is in a form capable of being processed by the Department's system.

If you appeal by e-mail, you are responsible for any delay, disruption, or interruption of electronic signals and the readability of the appeal, and you accept the risk that the appeal may not be properly or timely filed. If you wish to appeal by e-mail, forward your appeal information to the Department at L&I-UCAppeals@state.pa.us. Warning: information submitted by e-mail is not secure. (Emphasis in original.) On August 3, 2010, the Board issued a notice of hearing on Claimant's appeal from the NOD. (C.R. No. 5.) In that notice, the Board informed Claimant that the only issue to be addressed during the hearing was the timeliness of Claimant's appeal from the NOD: "NOTE: Testimony will be taken regarding the TIMELINESS of this appeal ONLY. If this appeal is found to be timely, another hearing will be scheduled to address the merits of the case."

The Referee held the scheduled hearing on August 16, 2010. Neither the Department of Labor & Industry (Department) nor Claimant's employer appeared for the hearing. Claimant, pro se, appeared and testified on his own behalf. Before Claimant testified, the Referee identified and admitted into the record ten (10) exhibits from the Board's record. The Referee also admitted as Referee Hearing Exhibit #1 the hearing notice. (C.R. No. 6 (Notes of Testimony) at 2-3.) The Referee then directed Claimant to the NOD, with a mailing date of June 10, 2010, and an appeal deadline of June 25, 2010. She asked Claimant whether he recalled when he received the NOD. Claimant testified that he received the NOD on or about June 14 or 15, 2010. (Id. at 3.)

The Referee asked Claimant what he did upon receipt of the NOD. Claimant testified that on June 24, 2010, he appealed by e-mail. At this point, the Referee admitted into the record Exhibit C1, which the Referee identified as follows:

I have before me a document that is printed out, Yahoo Mail Classic. It is appeal [sic] of Re-Determination of Overpayment of Benefits to LI-UC-Appeals at State.PA.US from Rex Bennett. There is a date of Thursday, June 24, 2010. (Id. at 4.) Claimant testified that the e-mail marked as Exhibit C1 was to serve as his appeal from the NOD. (Id.)

Claimant testified that when, after three weeks passed, he had not received anything from the Board regarding his appeal, he sent another e-mail, including in the text of the new e-mail the text from the earlier June 24, 2010 e-mail. The new e-mail included an additional notation to the effect that Claimant had not yet received a hearing notice on his appeal and sought additional information regarding the status of his appeal. (Id.) At this point, the Referee admitted into the record Exhibit C2, which the Referee identified as follows:

And I have a copy of a document again on Yahoo Mail Classic. It says forward appeal of Re-Determination to LIUC Appeals at State.PA.US from Rex Bennett. And there is a date of July 21, 2010. (Id. at 4.) Claimant offered no further evidence and declined the Referee's invitation to make a closing statement. (Id.)

On August 16, 2010, the Referee mailed to Claimant her Decision/Order, dismissing Claimant's appeal of the NOD as untimely. In support of her decision, the ...


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