B.S. Borne v. UCBR, 2016 C.D. 2015

Claimant Bobbi Sue Borne worked part-time for Vincentian Home and was discharged April 19, 2013; she nonetheless received ~20 weeks of unemployment benefits beginning May 4, 2013.
On June 25, 2015 the local service center mailed three determinations to Claimant: ineligibility under Section 402(e); a fault overpayment of $2,280; and penalty weeks/amount under Section 801(b). Each notice stated appeals were due by July 10, 2015.
Claimant received the notices late (she testified she received them July 10) and filed appeals on July 14, 2015.
A referee held a hearing limited to timeliness on August 11, 2015 and dismissed Claimant’s appeal as untimely, finding notices were mailed to her last known address and not returned undelivered.
The Board affirmed the referee. Claimant appealed to this Court arguing the Board erred in dismissing her untimely appeal; the Court affirmed.

Issue	Borne's Argument	Board/Employer's Argument	Held
Whether Claimant’s untimely appeal should be considered nunc pro tunc	Borne argued she did not receive mailed determinations until July 10 due to mail delivery problems and thus filed as soon as practicable	Notices were mailed to Claimant’s last known address and not returned; presumption of receipt applies; no proof of extraordinary circumstances	Appeal was untimely; claimant failed to prove fraud, administrative breakdown, or non-negligent third-party conduct to warrant nunc pro tunc relief; dismissal affirmed
Whether presumption of receipt was rebutted by Claimant’s testimony about mail problems	Borne contended her testimony about poor mail delivery rebutted presumption	Board found her testimony not credible and noted she did not file a postal complaint or take steps to retrieve mail	Court defers to Board’s credibility finding; presumption of receipt stands

Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286 (Pa. Cmwlth. 2009) (untimely appeal renders determination final and Board lacks jurisdiction)
Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825 (Pa. Cmwlth. 1979) (when notice mailed to last known address and not returned, receipt is presumed absent extraordinary circumstances)
Volk v. Unemployment Compensation Board of Review, 49 A.3d 38 (Pa. Cmwlth. 2012) (description of presumption of receipt and acknowledgement that mail can sometimes be lost)
Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth. 2008) (standards for permitting appeal nunc pro tunc: fraud, administrative breakdown, or non-negligent third-party conduct)
Mountain Home Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484 (Pa. Cmwlth. 2008) (nunc pro tunc relief may be permitted for extraordinary circumstances)
Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084 (Pa. Cmwlth. 1997) (appellate court will not reweigh agency fact-finding)
Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138 (Pa. Cmwlth. 1981) (Board has exclusive province over credibility and need not accept claimant's testimony)
Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d 122 (Pa. Cmwlth. 2015) (scope of appellate review of Board decisions)