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Zuber (Ameritech Publishing, Inc.) 16.72

Section 32a(2)

APPEALS, Timeliness of appeal, Fax, Definition of Day

CITE AS: Zuber (Ameritech Publishing Inc), 2002 BR 171048 (B2003-09495)

Appeal pending: No

Claimant: Kathy L. Zuber
Employer: Ameritech Publishing, Inc.
Docket No. B2003-09495-171048

BOARD OF REVIEW HOLDING: A protest or appeal is timely if RECEIVED before midnight of the deadline date.

FACTS: The determination was issued May 6, 2003. Employer faxed its appeal June 5, 2003 at 4:04 p.m. Central time. The Agency issued a redetermination August 27, 2003. Employer appealed the redetermination by fax on September 26, 2003 at 4:13 p.m. Central time. The Agency stamped employer’s appeal as received on September 29, 2003; there was also a stamp indicating the fax was received September 26.

DECISION: The Agency timely received both the employer’s protest of the determination and the employer’s appeal of the redetermination.

RATIONALE: Claimant asserted the protests were untimely because they were submitted after the close of business. Section 32a states in relevant part that a protest of a determination or an appeal of a redetermination must be filed with the Agency “within 30 days after the mailing or personal service.” The Act does not define the word “day.” Rule 105(2) of the Rules of Practice states: “The calendar day on which compliance is required shall be included in the computation of time.” Webster’s Ninth New Collegiate Dictionary, defines “day” in relevant part: “the mean solar day of 24 hours beginning at mean midnight.” We find the word should be given its ordinary meaning.

If the particular protest or appeal is in fact received on or before the date due, then the protest or appeal will be treated as timely. However, the Board is not mandating the Board or Agency to keep fax machines on 24 hours. Parties assume the risks associated with their choice of media. A party attempting a last minute appeal may find the fax number busy or turned off. Attempt does not equal receipt.


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