§ 101.82. Time for filing appeal from determination of Department.
(a) A party seeking to appeal a Department determination shall file an appeal in the form and manner specified in § 101.81 (relating to filing of appeal from determination of Department) and this section no later than 21 days after the ‘‘determination date’’ on the determination.
(a.1) The Department will mail a copy of the determination to the party’s last known post office address or transmit it electronically, as designated by the party.
(b) A party may file a written appeal by any of the following methods:
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
(2) Common carrier. An appeal may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date the workforce investment office, Board or Department appeal office received the appeal.
(3) Fax transmission.
(i) The filing date will be determined as follows:
(A) The date of receipt imprinted by the Department, the workforce investment office or the Board’s fax machine.
(B) If the Department, the workforce investment office or the Board’s fax machine does not imprint a legible date, the date of transmission imprinted on the faxed appeal by the sender’s fax machine.
(C) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal.
(ii) A party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(iii) A fax transmission is timely filed if it is received by the Department appeal office, workforce investment office or Board before midnight on the last day of the appeal period in accordance with this subsection.
(4) Electronic mail (e-mail).
(i) The date of filing is the receipt date recorded by the Department appeal office or the Board’s e-mail system, if the e-mail message is in a form capable of being processed by that system.
(ii) The Department will confirm receipt of the party’s e-mail appeal by sending the party an auto-reply e-mail. If the party does not receive an auto-reply e-mail, the Department has not successfully received the party’s appeal, and the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(iii) A party filing by e-mail shall comply with instructions concerning format. A party filing an appeal by e-mail is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(4.1) Pennsylvania UC Claims System.
(i) The date of filing is the receipt date recorded by the Pennsylvania UC Claims System. Following submission of the appeal, a notation will appear in the Pennsylvania UC Claims System to show that the Department successfully received the party’s appeal. Following submission of the appeal, the appeals section of the Pennsylvania UC Claims System will also show that the party’s appeal has been filed. If the Pennsylvania UC Claims System does not indicate that the party’s appeal has been filed, the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(ii) If the filing is untimely as a result of system or technological failure of the Pennsylvania UC Claims System, the date of filing will be redetermined through the adjudicatory process. The Board will make available to the Referee relevant Department records regarding system outages where a party alleges a late filing due to system or technological failure.
(5) Personal delivery to a workforce investment office or the Board. The filing date will be the date the appeal was personally delivered to the workforce investment office or the Board during its normal business hours.
(c) Appeal acknowledgement letter. After a party files an appeal using one of the methods provided in subsection (b), the Department or Board will send the party a letter acknowledging that it received the party’s appeal and the date on which the party filed the appeal.
Authority The provisions of this § 101.82 amended under section 203(d) of the Unemployment Compensation Law (43 P.S. § 763(d)) and section 506 of The Administrative Code of 1929 (71 P.S. § 186).
Source The provisions of this § 101.82 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended July 14, 1978, effective July 15, 1978, 8 Pa.B. 2002; amended September 19, 2003, effective September 20, 2003, 33 Pa.B. 4674; amended March 11, 2022, effective March 12, 2022, 52 Pa.B. 1480. Immediately preceding text appears at serial pages (374951) to (374954).
Notes of Decisions
Appeals by e-mail
The Board may not ignore documentary evidence of timely appeal by e-mail. Bennett v. UCBR, 33 A.3d 133, 138 (Pa. Cmwlth. 2011).
Board’s dismissal of appeal for untimeliness is affirmed based upon the regulation that when the litigant selects e-mail as the medium for appeal, the litigant assumes the risk that the appeal may not be timely filed for traditional reasons nunc pro tunc relief is not appropriate. McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006).
Appeals by Fax
A fax transmittal sheet showing unsuccessful delivery is not evidence of timely delivery. Lopresti v. UCBR, 55 A.3d 561, 563 (Pa. Cmwlth. 2012).
The Board may not ignore documentary evidence of timely appeal by fax. Wright v. UCBR, 41 A.3d 58, 64 (Pa. Cmwlth. 2011).
Appealing party in unemployment compensation case is responsible for the readability of fax sent for appeal purposes; party choosing to communicate by fax for any purpose accepts the risk of any delay, disruption, interruption of electronic signals, and readability of the document. Skowronek v. Unemployment Compensation Board of Review, 921 A.2d 555, 559 (Pa. Cmwlth. 2007).
Appeals by Mail
An envelope bearing no postmark, containing the employer’s appeal of a referee’s determination, was not received by the Department within 15 days of the mailing date of the determination, and therefore, the appeal could not be deemed mailed on postmark date. Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235 (Pa. Cmwlth. 1993).
A postmark which indicates that an appeal was mailed within the 15-day period satisfies the requirement for filing within the required time, even if the appeal is received after the end of the appeal period. UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344 (Pa. Cmwlth. 2001).
This section, as drafted does not recognize placing an appeal in the mail as the initiation of the appeal matter, it recognizes only the postmark date. Edwards v. Unemployment Compensation Board of Review, 639 A.2d 1279 (Pa. Cmwlth. 1994).
Where unemployment compensation hearing referee failed to retain envelope that claimant’s appeal was mailed in and failed to date-stamp the appeal when it was received, it was proper for the Unemployment Compensation Board of Review to consider testimony from claimant and her husband to determine whether claimant’s appeal was timely. Cumberland Valley Animal Shelter v. Unemployment Employment Compensation Board of Review, 881 A.2d 10, 13 (Pa. Cmwlth. 2005).
The postmark rule to determine mailing date was reasonable and a late mailing was not excusable in the absence of a deprival by the Board of the claimant’s right to appeal via fraud, negligence or wrongful conduct. Hoffman v. Unemployment Compensation Board of Review, 382 A.2d 797 (Pa. Cmwlth. 1978).
Date counsel placed claimant’s appeal in the mail with the correct amount of postage constituted the ‘‘filing’’ date for the purpose of determining whether claimant’s appeal was timely filed, rather than the date counsel initially placed the appeal in the mail that was returned for insufficient postage. Shea v. Unemployment Compensation Board of Review, 898 A.2d 31, 34 (Pa. Cmwlth. 2006).
‘‘the filing date must be discernable from either the face of a document or from the internal records of the court.’’ McKnight v. UCBR, 99 A.3d 946, 949 (Pa. Cmwlth. 2014).
A USPS barcode is not evidence of timely mailing. McKnight v. UCBR, 99 A.3d 946, 948-50 (Pa. Cmwlth. 2014).
Basis of Appeal
Claimant’s statement on Appeal form—‘‘I do not agree with this decision’’—was insufficient to state the basis of an appeal; there must be some indication of what error occurred and where the tribunal should focus its attention. Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1988); appeal dismissed 570 A.2d 1320 (Pa. 1990).
Burden of Proof
When the Bureau dismissed an appeal as untimely based on a receipt date beyond the appeal period and the letter bearing the postmark date of appeal had allegedly been misplaced through the negligence of the Bureau, the appellant bore the burden of presenting evidence that administrative irregularity, fraud, or its equivalent caused the failure to appeal on time. Trans-Eastern Inspection, Inc. v. Unemployment Compensation Board of Review, 420 A.2d 1354 (Pa. Cmwlth. 1980).
General Comments
The Unemployment Compensation Board of Review is bound to follow its own regulations in determining the perfection date of an appeal. Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290 (Pa. Cmwlth. 1996).
The language of this section reveals the need for appellants to ‘‘specifically advise’’ that they are filing an appeal. First National Bank of Bath v. Unemployment Compensation Board of Review, 619 A.2d 801 (Pa. Cmwlth. 1992).
An appeal to the Unemployment Compensation Board of Review must be filed within 15 days after the date of the referee’s decision, or that decision becomes final and the Board has no jurisdiction over the matter. UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344 (Pa. Cmwlth. 2001).
‘‘[T]he absence of [an] appeal in the Board’s record alone is not proof that the Board did not receive it. Its absence in the record, at best, gives rise to an inference that Claimant did not file a timely appeal in this case,’’ so the Board may not ignore uncontradicted documentary evidence to the contrary. Wright v. UCBR, 41 A.3d 58, 64 (Pa. Cmwlth. 2011).
Initiation of Appeal
The employer’s notation accompanying the Request for Relief from Charges form specifically advised the Bureau that it was appealing the Notice of Financial Determination thereby meeting the requirements of subsection (c). LTV Steel Company, Inc. v. Unemployment Compensation Board of Review, 620 A.2d 629 (Pa. Cmwlth. 1993).
‘‘the filing of an appeal from an eligibilty determination is separate and distinct from the filing of a request for relief from charges.’’ First Nat’l Bank v. UCBR, 619 A.2d 801, 804 (Pa. Cmwlth. 1992).
Nunc Pro Tunc Appeals
An untimely appeal may be considered timely only when ‘‘caused by extraordinary circumstances involving’’ fraud, a breakdown in the administrative process, or non-negligent conduct of the appellant or its counsel, but only if (1) ‘‘the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness,’’ (2) ‘‘the time period which elapses is of very short duration,’’ and (3) the ‘‘appellee is not prejudiced by the delay.’’ Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996).
If the postmark on the envelope of the mailing of a decision differs from the ‘‘decision mailing date,’’ an appellant may rely on that postmark as the date on which notification of the decision was actually mailed and as the date on which the appeal period begins. Raichle v. Board of Unemployment Compensation Board of Review, 535 A.2d 694 (Pa. Cmwlth. 1988).
Three days is a ‘‘short time’’ to file an appeal after having an opportunity to address the untimeliness, but an eleven-day delay shows negligence rather than ‘‘reasonable diligence’’ in filing a late appeal after having an opportunity to do so. UPMC Health Sys. v. UCBR, 852 A.2d 467, 470 (Pa. Cmwlth. 2004).
‘‘failure to follow the instructions in the notice of determination [does] not [constitute] extraordinary circumstances involving a non-neglignet act, or fraud or a breakdown in the administrative process’’ to forgive an untimely appeal.’’ Russo v. UCBR, 13 A.3d 1000, 1004 (Pa. Cmwlth. 2010).
Appellant before the Unemployment Compensation Board who files an appeal late because the appellant or appellant’s counsel was hospitalized may be allowed to file appeal nunc pro tunc. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996).
Personal Delivery of Appeals
Hand-delivery of an appeal one day late constituted untimeliness, and it was not unreasonable for the Board to reject the appeal. Moss v. Unemployment Compensation Board of Review, 557 A.2d 839 (Pa. Cmwlth. 1989).
Personal delivery to a workforce investment office or the Board excludes service centers. Russo v. UCBR, 13 A.3d 1000, 1002-03 (Pa. Cmwlth. 2010).
Cross References This section cited in 34 Pa. Code § 101.102 (relating to form and filing of application for further appeal from decision of referee).
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