Submitted April 11, 2014.
Publication Ordered October 7, 2014.
Appealed from No. B-555903. Unemployment Compensation Board of Review.
Andrea E. Mertz, Wyomissing, for petitioner.
Shawn Westhafer, Assistant Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
PATRICIA A. McCULLOUGH,
LeShane Kellsey McKnight (Claimant) petitions for review of the September 16, 2013 order of the Unemployment Compensation Board of Review (Board) which dismissed Claimant's appeal from a referee's decision as untimely under section 502 of the Unemployment Compensation Law (Law). We affirm.
Claimant worked for Hoffman Industries (Employer) as an assembler from September 2011 until December 19, 2012. Following his separation from employment, Claimant filed an application for benefits, which was denied by the local service center. Claimant appealed, and a referee held a hearing on June 18, 2013, at which both parties presented evidence. The referee resolved all conflicts in testimony in Employer's favor, found that Claimant voluntarily quit his job in violation of Employer's policy, and concluded that Claimant failed to establish necessitous and compelling reason for doing so. The referee affirmed the denial of benefits and held that Claimant was ineligible for compensation under section 402(b) of the Law, 43 P.S. § 802(b). The referee's decision was mailed on June 21, 2013, and it advised Claimant that he had fifteen days to appeal and that the final date to appeal was July 8, 2013.
The Board received Claimant's appeal on July 10, 2013. By correspondence dated July 17, 2013, the Board informed Claimant that his appeal appeared to be untimely filed. The Board advised Claimant that if he believed his appeal was filed within fifteen days of the referee's decision, he should submit a written request to the Board for a hearing on the timeliness issue. Claimant did so, and, by order dated August 6, 2013, the Board remanded the matter to the referee to hold a hearing and serve as the Board's hearing officer. The remand hearing was held on August 23, 2013.
Claimant, participating pro se, testified that he received the referee's decision on June 22, 2013, one day after it was mailed. (Notes of Testimony (N.T.) at 3.) Claimant stated that he received the referee's decision on a Saturday and called his attorney on Monday to schedule an appointment. Claimant said he met with his attorney on July 3rd and placed his appeal form in a mailbox on July 5th, before the first scheduled pickup at 9:30 a.m. He acknowledged that the envelope containing his appeal to the Board did not have a postmark. (Board exhibit G.)
In a decision and order dated September 16, 2013, the Board made the following findings: Claimant received the referee's June 21, 2013 decision on June 22nd; the referee's decision informed Claimant that July 8, 2013 was the final day on which to file a timely appeal to the Board; Claimant's appeal was filed on July 10, 2013, two days late; unemployment authorities did not misinform or mislead Claimant concerning his right to appeal; and Claimant's late appeal was not caused by fraud, a breakdown in the administrative process, or non-negligent conduct. (Findings of Fact Nos. 1-6.)
The Board noted that, although Claimant testified that he mailed his appeal on July 5, 2013, the envelope in which his appeal was mailed lacks a postmark evidencing that date. The Board further noted that, absent a certificate of mailing, certified mail receipt, postmark, or postage meter mark, an appeal mailed to the unemployment compensation authorities is considered filed on the date it is received. Thus, the Board rejected Claimant's assertion that he mailed his appeal on July 5th and concluded that his appeal was not filed until July ...