The opinion of the court was delivered by: Judge Brobson
Submitted: 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
Presently before the Court is an appeal from a decision of the Unemployment Compensation Board of Review (Board), which ruled that Claimant Isaac J. Wright (Claimant) failed to take a timely appeal from the Altoona UC Service Center's (UC Center) determination denying unemployment compensation benefits. By so ruling, the Board reversed the decision of the Referee, who found that Claimant timely filed his appeal and that Claimant was entitled to benefits. We now reverse the Board and remand the matter for further proceedings consistent with this Opinion.
The UC Center issued its Notice of Determination (NOD), denying Claimant benefits, on June 28, 2010.*fn1 The NOD included appeal instructions, noting that the last day to appeal the NOD was July 13, 2010. The NOD also provided the following with respect to appeal by fax:
If you file your appeal by fax, the appeal is filed on the date of receipt imprinted by the receiving fax machine. If the receiving fax machine does not imprint a legible date of transmission, it is filed on the date recorded by the Department when it receives the appeal. If you appeal by fax, 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 fax, complete Section 1 of the enclosed Petition for Appeal, or letter of appeal, and fax it to: 814-941-6801. (Emphasis in original.) On August 16, 2010, the Board issued a notice of hearing on Claimant's appeal from the NOD. (C.R. No. 7.) In that notice, the Board informed Claimant and his employer (Employer) that one of the issues to be considered in the appeal was "[w]hether [Claimant] filed a timely and valid appeal from the initial determination." (Id.)
The Referee bifurcated the hearing over two days. He dedicated the first day to the issue of the timeliness of Claimant's appeal. Claimant, represented by counsel, participated in the hearing. Employer, through its representative, also participated. The Department of Labor & Industry (Department) did not participate in the hearing.*fn2 No witness from the UC Center testified.
At the hearing, Claimant presented evidence to show that on July 9, 2010, he timely filed by fax transmission his appeal from the NOD denying him benefits. That evidence included: (a) Claimant's testimony; (b) testimony of his father, who testified that he faxed the appeal on Claimant's behalf (Sender) (C.R. No. 8 at 11-13); and (c) an account log, created weeks after the deadline to file the appeal had passed by the Sender's telephone/facsimile carrier (MetTel) at the Sender's request (C.R. No. 11 at 12-13, Ex. C-1), purportedly showing that a fax was successfully transmitted on July 9, 2010 to the facsimile number included in the NOD. Sender also testified that the fax machine he used did not contemporaneously print a fax confirmation sheet at the time he claims to have faxed the appeal on July 9, 2010, because the machine would only print a contemporaneous report if there was an error in the transmission. (C.R. No. 8 at 13.) Sender testified that he was "[a]bsolutely" certain that the transmission was complete and confirmed. (Id.)
The copy of Claimant's appeal in the Board's record, however, includes a date stamp indicating that the UC Center received the appeal on August 11, 2010. Claimant offered the following explanation for the discrepancy in his testimony before the Referee:
CL . . . Did there come a point where you discovered that the Appeal was not received by the Unemployment Office?
C I wasn't exactly sure how long the process was . . . CL Okay.
C . . . but I figured I didn't [k]now what was going on so I called the Unemployment Office itself and they said they never received it and I had no idea why.
CL Okay and what did you do in response to that?
C As soon as I found out that they didn't receive it I faxed it immediately.
CL Okay, you have your father or you do it?
C My father. (C.R. No. 11 at 8 (emphasis added).) A review of the appeal document in the Board's record shows that it is the copy of the appeal Sender sent after Claimant learned of the UC Center's claim that it did not receive the appeal faxed on July 9, 2010. Indeed, accompanying the appeal document in the Board's record is a statement by an accountant from Sender's office, which provides:
FROM: Potter County Housing Authority Richard Duzick, Accountant RE: 7-9-10 Fax 0/6/0 Isaac J. Wright
The above named individual did fax from our office (814) 274-0738 his petition for appeal to the OES.
We have a phone and fax record of the transmission. Copies are available if needed in addition to this statement.
Sincerely, /s/ Richard Duzic Richard Duzic Acct.
There is no other copy of an appeal in the record that the Board ...