Frederick W. Chapman, Petitioner
Unemployment Compensation Board of Review, Respondent
Submitted: March 31, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,
HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN
PELLEGRINI, Senior Judge.
PELLEGRINI, Senior Judge.
W. Chapman (Claimant) petitions this Court for review of the
Unemployment Compensation Board of Review's (Board)
dismissal of his appeal due to it being untimely filed under
Section 502 of the Unemployment Compensation Law
(Law). We affirm.
to a consulting agreement, Claimant performed work for Khan
Academy, Inc. as a mathematics copy editor. When he was
informed that his services were no longer needed, he filed an
application for unemployment compensation benefits.
Claimant's application was denied by the Service Center
and he appealed.
April 7, 2016, for reasons that are not necessary to set
forth, the Referee affirmed the Service Center's denial
of benefits. The Referee's decision also contained a
notice that Claimant had 15 days to appeal the decision to
the Board and the various ways an appeal could be
taken - i.e., in person, mail, fax, internet or
email. The information regarding electronic transmission
A party filing an appeal via the Internet or electronic mail
is responsible for using the proper format and for delay,
disruption or interruption of electronic signals and
readability of the document and accepts the risk that the
appeal may not be properly or timely filed.
(Record (R.) Item No. 10, Referee's Decision/Order dated
within the required 15 days, Claimant had until April 22,
2016, to appeal the Referee's decision to the Board. His
petition for appeal was transmitted via email on April 22,
2016, purportedly at 11:59:46 p.m., but was not received by
the Board's server until April 23, 2016, at 12:00 a.m.
The Department of Labor and Industry's (Department)
regulation set forth at 34 Pa. Code § 101.82(b)(4)
provides that for appeals submitted by electronic
The date of filing is the receipt date
recorded by the Department appeal office or the Board's
electronic transmission system, if the electronic record is
in a form capable of being processed by that system.
Id. (emphasis added). Because Claimant's appeal
was not received by the Board's electronic transmission
system within 15 days, the Board dismissed his appeal as
untimely. Claimant requested a hearing on the
timeliness issue and the Board granted his request.
hearing, Claimant presented evidence that he appealed via
email and that his Gmail timestamp indicated that the date of
mailing was 11:59:46 p.m. on April 22, 2016. When asked why
he waited until the last possible moment to file his appeal,
I went through a number of steps; tried to prepare my appeal
conscientiously. But that's not the only thing on my
plate. I have to-not only do I need to fulfill the
requirements for eligibility for benefits by applying for at
least two jobs a week and having at least one job search a
week, I am doing more than the minimum in order to find work
sooner. . . . So, it's simply that my resources have been
stretched very thin between the intricacies of the appeal
process and the demands of looking for work in a difficult
(R. Item No. 18, Transcript of Testimony-Board's Remand
Hearing held 6/3/16.) The Board again dismissed
Claimant's appeal because under the regulation, the date
that an email appeal is received by the Board's
electronic transmission system is the date it is filed which
makes a filing on April 23, 2016, at 12:00 a.m. untimely.
This petition for review followed.
contends that because Section 502 of the Law does not define
when an appeal is "filed, " 34 Pa. Code §
101.82(b)(4) stating that an appeal is filed when received by
the Board is invalid because "the prevailing criterion
is the date sent rather than the date
received. For example, the Court and the Board both use
this criterion for filings submitted by postal
mail." (Claimant's Brief at 9) (emphasis in
original). Claimant then argues that his Google Gmail
timestamp, which shows that his appeal was sent at 11:59:46
p.m. on April 22, 2016, should have been sufficient to
establish that his appeal was filed on time because an appeal
sent by mail is deemed filed when sent as evidenced by the
Claimant is correct that Section 502 of the Law does not
state whether an appeal is "filed" when it is sent
or received, Section 203 of the Law gives the Board the power
to adopt regulations relating to rules of procedure
providing, in relevant part, that:
It shall be the duty of the board to hear appeals arising
from claims for compensation, adopt, amend or rescind such
rules of procedure . . . as it deems necessary and consistent
with this act. Such rules of procedure shall be effective in
such a manner as the board shall prescribe and shall not be
inconsistent with this act.
43 P.S. § 763(d). Pursuant to this power, the Board
adopted regulations that provide that the date an appeal is
filed is determined by what method a claimant decides to
utilize to take the appeal. Other than filing by mail, this
regulation provides that the filing date is determined to be
when the item is received. Regarding electronic filing, 34
Pa. Code § 101.82(b)(4) provides that "[t]he date
of filing is the receipt date recorded by the Department
appeal office or the Board's electronic transmission
system . . ."
"[t]he Board is bound to follow its own regulations in
determining the perfection date of an appeal, "
Edwards v. Unemployment Compensation Board of
Review, 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994) (citing
Costello v. State Employee's Retirement Board,
596 A.2d 260 (Pa. Cmwlth. 1991), and the appeal here was