# Dumberth v. Unemployment Compensation Board of Review > Commonwealth Court of Pennsylvania · December 10, 2003 · 837 A.2d 678 URL: https://www.frixlaw.com/law-library/cases/9706282 ## Case - **Full name:** Ruth DUMBERTH, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** December 10, 2003 - **Citations:** 837 A.2d 678; 2003 Pa. Commw. LEXIS 913 - **Precedential status:** Published - **Opinion:** Dissent by Simpson - **Judges:** Colins, McGinley, Smith-Ribner, Friedman, Leadbetter, Cohn, Simpson - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706282 ## Opinion text DISSENTING OPINION BY Judge SIMPSON. I respectfully dissent from the thoughtful majority opinion because it makes unemployment compensation appeal deadlines uncertain and it prefers those filing appeals by facsimile transmission over those filing appeals in person, by courier or private delivery service, or by private postage meter. As noted in the majority opinion, Dum-berth was advised that the last day to file an appeal from denial of her unemployment compensation claim was June 18, 2002. She was also advised that if an appeal is transmitted by fax, it must be “received by the close of business on the last day to appeal....” Further, the notice provided that if an appeal is delivered in person, it, too, must be “received by the close of business on the last day to appeal. ...” It is undisputed that Dumberth’s appeal was not received by the close of business on the last day to appeal. Despite the clear language of the written notice, the majority concludes that the appeal’s arrival at the fax machine after public hours is timely, thereby affording jurisdiction. My departure from the compassionate majority position arises from concerns broader than compensation in this case. First, the suggestion that jurisdiction can be based on the serendipity of “leaving a fax machine turned on and capable of receiving and documenting receipt of her appeal after 5:00 p.m.” raises questions of predictability and invites litigation. More importantly, permitting those with access to facsimile machines to file appeals after public hours works a preference over those mailing appeals with private postage stamp and those filing appeals by private delivery service or in-person. A rational basis for this partiality is not readily apparent. See Wallace v. Unemployment Comp. Bd. of Review, 38 Pa.Cmwlth. 342 , 393 A.2d 43 (1978) (rational relationship analysis used to decide equal protection issue). We are compelled to construe a statute in a manner which is constitutional. Harrington v. Dep’t of Transp., Bureau of Driver Licensing, 563 Pa. 565 , 763 A.2d 386 (2000); Searfoss v. Sch. Dist. of Borough of White Haven, 397 Pa. 604 , 156 A.2d 841 (1959). Given the foregoing concern, an approach that treats all filers of the same class equally is favored. A similar situation faced the California Court of Appeal in Rosenberg v. Superior Court, 25 Cal.App.4th 897 , 30 Cal.Rptr.2d 803 (1994). A complaint was transmitted by facsimile machine after the trial court closed to the public. As here, no rule specifically addressed deadlines for filing by fax. The Court held that absent statewide directions to the contrary, each trial court may determine when it accepts documents for filing, and it may apply deadlines created by existing rules to filings made by fax. As a result of its holding, the Court noted: Nor do we reach the question of whether it would be violative of equal protection for a court to permit a plaintiff who files a complaint by fax in effect to extend the statute of limitations beyond the deadline for in-person filing. Id. at 900 , 30 Cal.Rptr.2d 803 . Using this analysis, in the absence of uniform rules to the contrary, unemployment authorities may apply existing rules to appeals transmitted by facsimile machine. Therefore, unemployment authorities may treat facsimile-transmitted appeals in the same way they treat in-person appeals, private delivery service appeals *685 and private postage meter appeals, all of which must be received when the office is open to the public. This approach avoids a constitutional issue. Also, this approach is predictable, thereby discouraging litigation. It is the lawful approach adopted by the unemployment authorities here. 1 Thus, I would affirm. Judge McGINLEY joins in the dissent. . See also Metro. Dade County v. Vasquez, 659 So.2d 355 (Fla.App. 1 Dist.1995) (attempt to hand deliver by courier service unemployment compensation appeal five minutes after close of business on last day to file appeal untimely); St. John’s Home v. Cont’l Cas. Co., 150 Wis.2d 37 , 441 N.W.2d 219 (1989) (to be timely, petition for review must be received by clerk's office before close of business on last day permitted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706282. Public record. Not legal advice.