Dull v. UCBR - Commonwealth Court - September 3, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/679CD08_9-4-08.pdf
The claimant appealed in October from a referee decision issued in April. The court rejected the appeal, holding against the claimant on her arguments that a) there was no proof of mailing; b) she is incompetent and has an IQ of 76; c) the failure of the UCBR to make a provision for her mental deficiency/illiteracy constitutes an administrative breakdown that warrants allowing an appeal nunc pro tunc.
The court said the the mailbox rule did not apply, since there was evidence in the administrative record that the decision was, indeed, mailed to her. "Thus neither the employer nor administrative officials bear the burden of presenting additional affirmative evidence, but the burden falls on Claimant to prove her allegations." She did not prove that the referee decision was not delivered to her. She "could have have someone read her mail had she chosen to do so." It was her "own negligence" in this regard and not her low IQ that resulted in the late appeal.
The court distinguished Lewis v. UCBR, 814 A.2d 829 (Pa. Cmwlth. 2003), where the court allowed a late appeal for a claimant who, despite an IQ similar to the claimant's here, made a "diligent effort to file her appeal in a timely manner, soliciting help where needed and communicating with the UCSC throughout the process. Here the Claimant exercised no diligence at all....We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforets to obtain appropriate assistance."
