          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dominic H. Bergamasco,                        :
                            Petitioner        :
                                              :
             v.                               :   No. 1401 C.D. 2019
                                              :   Submitted: April 17, 2020
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: August 24, 2020


      Petitioner Dominic H. Bergamasco (Claimant) petitions, pro se, for review of
an order of the Unemployment Compensation Board of Review (Board), which
affirmed a decision by a Referee dismissing Claimant’s appeal as untimely under
Section 501(e) of the Pennsylvania Unemployment Compensation Law (Law).1 We
now affirm the Board’s order.

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e). Section 501(e) of the Law provides:
             Unless the claimant . . . files an appeal with the [B]oard, from the
             determination contained in any notice required to be furnished by
             the [Department of Labor and Industry (Department)] . . . within
             fifteen calendar days after such notice . . . was mailed to his last
             known post office address, and applies for a hearing, such
       Claimant filed a claim for unemployment compensation benefits on
January 6, 2019, following termination from his employment with CBS Corporate
Services, Inc. (Certified Record (C.R.), Item No. 1.) The Altoona UC Service Center
(Service Center) denied benefits pursuant to Section 401(c) of the Law, 43 P.S.
§ 801(c), because Claimant failed to return information related to his claim.2 (C.R.,
Item No. 4.) Claimant appealed, and a Referee conducted a hearing on June 5, 2019,
at which neither party appeared. (Id.)
       The Referee made the following findings of fact:
              1.    On February 6, 2019, the Unemployment
              Compensation Service Center mailed Notices of
              Determination to the claimant and employer denying
              benefits to the claimant under [S]ection 401(c) of the Law.

              2.     The claimant’s version of the Notice of
              Determination was mailed to his correct mailing address
              of record.

              3.    The Notice of Determination was not returned by
              the postal authorities as undeliverable.

              4.     The Notice of Determination informed the claimant
              that February 21, 2019[,] was the last day to file an appeal.

              5.   The claimant did not file an appeal to the Notice of
              Determination on or before February 21, 2019.




              determination of the [D]epartment, with respect to the particular
              facts set forth in such notice, shall be final and compensation shall
              be paid or denied in accordance therewith.
       2
         Specifically, Claimant filed for unemployment compensation benefits. Thereafter, the
Department’s Office of Unemployment Compensation, received information that Claimant was
receiving severance pay. The Department requested more information from Claimant and
Employer but did “not receive[] sufficient information to adjudicate [C]laimant’s severance pay
under Section 404(d)(1.1) of the . . . Law[, 43 P.S. § 804(d)(1.1)].” (C.R., Item No. 4.)

                                               2
               6.   The claimant did file an appeal, via email, on
               May 21, 2019.
(C.R., Item No. 10.) The Referee reasoned: “Although duly notified of the date,
time and place of the unemployment compensation hearing, the claimant did not
appear for the hearing to present testimony and evidence on the issues under
appeal. . . . In the present case, the [c]laimant did not appear at the scheduled
hearing[] to provide testimony to show fraud or a breakdown in the administrative
process which may have caused the late appeal.” (Id.) The Referee dismissed the
appeal as untimely pursuant to Section 501(e) of the Law. (Id.)
       Claimant appealed to the Board, and the Board remanded the matter to the
Referee for a hearing. (C.R., Item Nos. 11-12.) At this hearing, Claimant testified
that he did not appear at the June 5, 2019 hearing, because he was on vacation. (C.R.,
Item No. 17 at 3.) Claimant testified that on May 31, 2019, the same day he left for
vacation, he spoke with a Department employee on the phone about leaving for
vacation for ten days, but the employee “comforted” him that he would not receive
a scheduled hearing date for two weeks. (Id. at 4.) Claimant testified that he learned
about his scheduled hearing date of June 5, 2019, after he returned from vacation on
June 11, 2019.3 (Id.)
       As to the timeliness of his appeal, the Referee asked Claimant a variety of
questions based upon the claim record. (Id. at 8-9.) First, Claimant testified that, on
February 6, 2019—the date of the Notice of Determination at issue—he had a
telephone conversation with a Department representative regarding his severance,
during which he informed the Department that Employer would not provide

       3
           During the hearing, the Referee stated that typically a claimant is given a full 14-day
notice of a hearing. (C.R., Item No. 17 at 5.) Claimant testified that, because he kept calling the
Department, a Department representative said that she was expediting the matter for him.
(Id. at 6.) He believes that may explain why the hearing was scheduled so quickly. (Id.)

                                                3
additional information regarding severance. (Id.) Claimant also testified regarding
a telephone conversation he had with a Department employee on March 7, 2019,
after which he faxed information to the Department regarding severance pay.
(Id. at 9.) Claimant stated that no one told him he needed to file an appeal at that
point. (Id.) Rather, he was informed that all he needed to do was provide the
information and he would be fine. (Id.) Sometime thereafter, he received one
unemployment compensation check, so he thought he was good. (Id.) He then said
he “called back[,] and it was just a confusing process[,] and [he does not] know what
happened.” (Id.) He characterized it as “a combination of [his] fault and the
situation.” (Id.)
      When asked to describe what he was told and when he was told any details
that caused him to miss his appeal deadline, Claimant testified:
             I think it was a combination. I called and I was told,
             number one, file on, either log into PA CareerLink and I
             did all of that. Then, I was told I just needed information
             about the severance. So, I sent that and I wasn’t told I
             needed to appeal. Then I received something else.
             I received two different things on [February] 6th. One
             talked about the severance, but the other one just said the
             employer didn’t respond, so I was eligible for benefits. . . .
             So, I had all this information and it just all kind of misled
             me to believe it was just taking time to process.

(Id. at 9-10.) As to the two determinations, both of which were mailed on the same
day, Claimant confirmed that one was a separation determination that ruled him
eligible for benefits based on his separation from employment and the other was the
notice that is the subject of this appeal, which denied him benefits under
Section 401(c) of the Law. (Id.)
      When asked whether there was anything else Claimant wanted the Referee to
consider, Claimant responded:
                                           4
               I would just say I received a lot of information. I tried to
               follow up and respond and I apologize for all of this
               paperwork and all of this time that everyone had to deal
               with this. I mean, I truly just–I don’t know what occurred.
               There were a lot of things, as you can see in the file, a lot
               of different scenarios and I got confused somehow. I
               didn’t understand exactly what was needed in what time
               based on conversations . . . .

(Id. at 11.)
       Upon completion of the hearing and receipt of the transcript, the Board
concluded “that the determination made by the Referee [wa]s proper.” (C.R.,
Item No. 18.) The Board then adopted and incorporated the Referee’s findings and
conclusions. (Id.) In so doing, the Board explained:
               The [Board] remanded to receive testimony and evidence
               on the claimant’s reason for his nonappearance at the
               previous hearing. The claimant did not appear at the
               previous hearing because he was out of town on vacation
               and did not get the Notice of Hearing on time to attend the
               hearing. The Board does not consider this to be good
               cause for nonappearance. The Board does not credit the
               claimant that someone from the unemployment office
               promised him his hearing would not be until two or three
               weeks. Therefore, the testimony and evidence offered at
               the remand hearing will not be considered.
               ....
               Assuming, arguendo, the claimant had good cause for his
               nonappearance and his testimony was considered, the
               claimant did not supply a sufficient reason to accept his
               appeal as timely. The claimant testified[:] “[I] partially, I
               screwed up. I mean, I’ll admit it with the deadline . . . .”
               An appellant’s subjective misunderstanding or confusion
               related to straightforward appeal language in an
               unemployment compensation notice is not a legitimate
               reason for the enlargement of time to appeal. Williamson
               v. . . . Dep’t of Transp.[, Bureau of Driver Licensing],
               129 A.3d 597, 602 (Pa. Cmwlth. 2015).

(C.R., Item No. 18.) This appeal followed.
                                            5
       On appeal,4 Claimant argues that the Board erred in concluding that he did not
have good cause for his nonappearance, which error resulted in the Board excluding
from consideration his testimony regarding the timeliness of his appeal. Claimant
further argues that the Board erred in concluding that his appeal was untimely,
because, had the Board considered the improperly excluded testimony, it would have
concluded that circumstances justified the filing of a late appeal. The Board argues
that, based on the Board’s credibility determination, Claimant did not have proper
cause for his nonappearance at the first hearing, and, therefore, his testimony
regarding the timeliness of his appeal offered at the remand hearing was properly
disregarded by the Board. In the alternative, the Board argues that, even if Claimant
had proper cause for his nonappearance and his testimony concerning the timeliness
of his appeal was considered, nunc pro tunc relief is not warranted in light of
Claimant’s delay in filing his appeal.
       We first address whether Claimant had good cause for his nonappearance.
The Department’s regulations address requests for reopening the record where a
party does not attend a scheduled hearing:
              If a party who did not attend a scheduled hearing
              subsequently gives written notice, which is received by the
              tribunal prior to the release of a decision, and it is
              determined by the tribunal that his failure to attend the
              hearing was for reasons which constitute “proper cause,”
              the case shall be reopened. Requests for reopening,
              whether made to the referee or Board, shall be in writing;
              [and] shall give reasons believed to constitute “proper
              cause” for not appearing[.]



       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               6
34 Pa. Code § 101.24(a). “If a party fails to appear at a scheduled hearing, that party
must show good cause for that failure before the Board will delay the final
disposition of the case by remanding for additional hearings. Were it otherwise,
there would be no incentive to appear at the initial hearing.”              McNeill v.
Unemployment Comp. Bd. of Review, 511 A.2d 167, 169 (Pa. 1986). The decision
to grant or deny a request to reopen a hearing is within the Board’s discretion.
Cannady v. Unemployment Comp. Bd. of Review, 487 A.2d 1028, 1030 (Pa.
Cmwlth. 1985). We have repeatedly held that a party’s own negligence is not
sufficient “good cause” as a matter of law for failing to appear at a Referee’s hearing.
See Eat ‘N Park Hospitality Grp., Inc. v. Unemployment Comp. Bd. of Review,
970 A.2d 492 (Pa. Cmwlth. 2008) (holding employer’s witness did not show good
cause for failing to testify by telephone at referee’s hearing where his testimony
amounted to admission that employer’s telephone directions to referee were
inaccurate); Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436 (Pa.
Cmwlth. 2000) (holding employer did not show good cause for nonappearance at
hearing where its personnel director failed to explain why neither she nor person
reviewing mail in her absence did not discover hearing notice); Savage v.
Unemployment Comp. Bd. of Review, 491 A.2d 947 (Pa. Cmwlth. 1985) (holding
claimant’s misreading of date on hearing notice did not constitute good cause for
nonappearance at referee’s hearing).
      Here, the Board did not credit Claimant’s testimony that he was told by a
Department employee that his hearing would not be scheduled for at least two weeks.
(C.R., Item No. 17.) In an unemployment compensation case, the Board is the
ultimate fact-finder and is empowered to make credibility determinations.
McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1269-70 (Pa.


                                           7
Cmwlth. 2003). In making such determinations, the Board is free to reject the
testimony of any witness, even uncontradicted testimony. Daniels v. Unemployment
Comp. Bd. of Review, 755 A.2d 729, 732 (Pa. Cmwlth. 2000).
      The Notice of Hearing was mailed on May 29, 2019, and Claimant left for
vacation at 3:00 a.m. on May 31, 2019. (C.R., Item No. 17.) Claimant knew that a
Notice of Hearing would arrive at his address by mail sometime in the near future,
yet he did not arrange for anyone to check his mail in his absence. (Id.) This Court
has consistently found petitioners negligent by not making other arrangements for
their mail to be monitored while they were away. Best Courier v. Dep’t of Labor &
Indus., Office of Unemployment Comp. Tax Servs., 220 A.3d 696, 701 (Pa.
Cmwlth. 2019).    Claimant’s failure to arrange for others to monitor his mail,
therefore, constituted negligence. The Board, therefore, did not err in concluding
that Claimant failed to prove good cause for his nonappearance.           Because a
Claimant’s own negligence is not “good cause” as a matter of law for failing to
appear at the hearing, the Board did not err when it refused to consider testimony
from Claimant regarding the timeliness of his appeal.
      Moreover, we agree with the Board that, even if it had considered Claimant’s
testimony regarding the timeliness of his appeal, Claimant still would not prevail.
Generally, under Section 501(e) of the Law, a Notice of Determination will become
final where a claimant fails to file an appeal within fifteen calendar days after said
notice was delivered either to him personally or was mailed to his last known
address. It is well settled that this fifteen-day time limit to file an appeal is
mandatory and is to be strictly applied. Constantini v. Unemployment Comp. Bd. of
Review, 173 A.3d 838, 844 (Pa. Cmwlth. 2017); Dumberth v. Unemployment Comp.
Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (en banc). “Appeal periods,


                                          8
even at the administrative level, are jurisdictional and may not be extended as a
matter of grace or indulgence; otherwise, there would be no finality to judicial
action.” Dumberth, 837 A.2d at 681. Moreover, this Court has held that an appeal
filed one day past the statutory appeal period must be dismissed as untimely. Moss
v. Unemployment Comp. Bd. of Review, 557 A.2d 839, 839-40 (Pa. Cmwlth. 1989).
Thus, a petitioner carries a heavy burden to justify an untimely appeal. Blast
Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449
(Pa. Cmwlth. 1994).
      In limited circumstances, the Board may consider untimely appeals nunc pro
tunc “as a remedy to vindicate the right to an appeal where that right has been lost
due to certain extraordinary circumstances.” Union Elec. Corp. v. Bd. of Prop.
Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000). In
order for the Board to allow an untimely appeal, the claimant, bearing the burden of
proof, must illustrate that his delay in filing his appeal was caused by “extraordinary
circumstances involving fraud, administrative breakdown, or non-negligent conduct
beyond the [claimant’s] control.” Lopresti v. Unemployment Comp. Bd. of Review,
55 A.3d 561, 563 (Pa. Cmwlth. 2012). In so doing, the claimant must demonstrate
that “‘the administrative authority engaged in fraudulent behavior or manifestly
wrongful or negligent conduct’ or that ‘non-negligent conduct beyond [the
claimant’s] control caused the delay.’” Id. (quoting Hessou v. Unemployment Comp.
Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008)). A breakdown in the
administrative process occurs when “an administrative board or body is negligent,
acts improperly or unintentionally misleads a party.” Union Elec. Corp., 746 A.2d
at 584. In the context of unemployment compensation appeals, an administrative
breakdown occurs when, for example, “a referee’s decision is mailed to an incorrect


                                          9
address; adequate assistance is not provided to a claimant with cognitive
impairment; or[] an official misleads a litigant as to the proper procedure for filing
an appeal.” Hessou, 942 A.2d at 198. In Finney v. Unemployment Compensation
Board of Review, 472 A.2d 752 (Pa. Cmwlth. 1984), we held that a claimant’s lack
of understanding of the law—in this instance, the procedures for filing an appeal—
“does not excuse a party to an action from [the party’s] statutory obligation to file
an appeal within the prescribed appeal period.” Finney, 472 A.2d at 753-54.
       Claimant contends that receiving two “conflicting” determinations was
confusing and that he relied on Department employees to guide him. Claimant
further contends that he was confused by the payment made in error sometime
thereafter.5 The Board did not find any credible evidence in the record to show that
Claimant was told by a Department employee that he did not need to file an appeal
during the statutory appeal period or after that period had ended. Thus, Claimant
has not established that he was misled by a Department employee during the
February 6, 2019 conversation.6 Nor has Claimant established that he was misled
by subsequent conversations with Department employees.                      The March 7, 2019
conversation concerning severance occurred after the expiration of the
February 21, 2019 statutory appeal deadline. Thus, the March 7, 2019 conversation
and all others occurring after February 21, 2019, had no effect on Claimant’s

       5
          Claimant in his brief asserts that he received unemployment compensation benefits on
March 26, 2019, for the week ending March 16, 2019. (Claimant’s brief at 5.) He did not receive
benefits thereafter, and, on April 12, 2019, he received a notice of non-fault overpayment. (Id.)
       6
         In Claimant’s brief, Claimant repeats several times that he was not told to file an appeal.
It appears Claimant is arguing that Department employees had a duty to inform Claimant that he
needed to file an appeal. This is simply not a requirement under Section 501(e) of the Law. If a
Department employee had told Claimant specifically not to appeal prior to the statutory deadline,
the outcome may have been different. That is not, however, what happened here.



                                                10
decision not to appeal within the statutory period. In addition, any confusion
stemming from the overpayment made thereafter had no effect on Claimant’s
decision not to appeal during the statutory appeal period.
      Here, Claimant failed to file within the mandatory fifteen-day statutory appeal
period, admitting that he had received proper notice of the appeal deadline. Claimant
has not shown that fraud, administrative breakdown, or non-negligent conduct
beyond Claimant’s control occurred which caused Claimant not to appeal by
February 21, 2019. Admitting that he knew the statutory appeal deadline, Claimant
chose not to appeal because he received another determination stating he was
eligible. (C.R., Item No. 17.) Claimant’s subjective misunderstanding about the
duty and obligation of Department employees is insufficient to show that
non-negligent conduct beyond Claimant’s control caused the untimely appeal.
Unfortunately, Claimant’s subjective misunderstanding and decision not to appeal
caused the delay. Claimant did not present any extraordinary circumstances which
would warrant nunc pro tunc relief, and thus has not overcome the heavy burden of
justifying an untimely appeal. The Board, therefore, did not err as a matter of law
when it concluded that nunc pro tunc relief was not warranted because Claimant’s
delay in filing his appeal was due to his own negligence.
      Accordingly, we affirm the order of the Board.




                                         P. KEVIN BROBSON, Judge




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dominic H. Bergamasco,                  :
                         Petitioner     :
                                        :
           v.                           :   No. 1401 C.D. 2019
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :



                                      ORDER


     AND NOW, this 24th day of August, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.




                                        P. KEVIN BROBSON, Judge
