           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erica Victoria,                                 :
                             Petitioner         :
                                                :
                      v.                        :   Nos. 1809 and 1810 C.D. 2014
                                                :   SUBMITTED: April 24, 2015
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                    FILED: October 14, 2015


              Erica Victoria (Claimant) petitions for review of two orders of the
Unemployment Compensation Board of Review (Board) dismissing her appeals as
untimely pursuant to Section 501(e) of the Pennsylvania Unemployment
Compensation Law (Law).1 After review, we vacate and remand.


    1
     Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. § 821(e), states:

               (e) Unless the claimant . . . files an appeal with the board, from the
           determination contained in any notice required to be furnished by the
           department . . . within fifteen calendar days after such notice . . . was
           mailed to his last known post office address, and applies for a hearing,
           such determination of the department, with respect to the particular facts
(Footnote continued on next page…)
              Claimant initially filed for and began receiving unemployment
compensation benefits in May 2013, after being discharged from her employment
with ISS Facility Services (ISS).          In December 2013, Claimant qualified for
emergency unemployment compensation benefits (EUC).2 According to Claimant,
at the time of her separation from employment with ISS and for at least five years
prior thereto, she worked as an independent contractor cleaning the offices of
Sherlock Investigations, and reported weekly income of $100.00 during the benefit
period. The claim records show that because “multiple employers” were indicated,
the Allentown Unemployment Compensation Service Center (Service Center), sent
an Employer’s Notice of Application and an Employer’s Questionnaire to the
purported employer, Sherlock Investigations, in February 2014. The documents
returned by the purported employer, Sherlock Investigations, indicated that
Claimant was not and had never been an employee, had cleaned the company’s
office for years, and was provided with a 1099 at the end of the year. C.R. Items 2
and 4.     The Service Center requested additional information from Claimant,
leaving a recorded message for Claimant to call the service center.3 C.R. Item 5.
After no response was received, on March 26, 2014, the Service Center sent the
following six Notices of Determination to Claimant’s correct mailing address:
_____________________________
(continued…)
              set forth in such notice, shall be final and compensation shall be paid or
              denied in accordance therewith.
     2
       Section 4001(d)(2) of Title IV of the Supplemental Appropriations Act of 2008 (EUC Act),
26 U.S.C. § 3304 note, provides that eligibility for EUC benefits is based on state law on
eligibility for unemployment compensation benefits.
     3
       On or about March 5, 2014, a representative from the Service Center left a recorded
message for Claimant requesting additional information (her 1941 C and 2012 Schedule C
forms) and for Claimant to call the service center. Then, on March 17, 2014, the Service Center
sent Claimant a Form UC-997, Request for Information, requesting a copy of her 2012 Schedule
C form and asking Claimant to call the office within seven days. See C.R. Items 5 and 7.



                                              2
               1) A determination that Claimant was ineligible for
                  benefits under Section 402(h) of the Law, 43 P.S. §
                  802(h), which provides for an exclusion where the
                  claimant is engaged in a sideline business;

               2) A determination under Section 804(a) of the Law, 43
                  P.S. § 874(a), establishing a fault overpayment of
                  benefits in the amount of $7,037;

               3) A determination under Section 801(b) of the Law, 43
                  P.S. § 871(b), that Claimant would be penalized 30
                  weeks of benefits as a result of the fault overpayment;

               4) A determination denying Claimant EUC benefits
                  under Section 4001(b) of the EUC Act, 26 U.S.C. §
                  3304 note;

               5) A determination establishing a $315 fraud
                  overpayment under Section 4005 of the EUC Act, 26
                  U.S.C. § 3304 note;

               6) A determination under Section 801(b) of the Law, 43
                  P.S. § 871(b), and Section 4005 (a)(1) of the EUC
                  Act, that Claimant would be penalized 4 weeks of
                  benefits as a result of the EUC overpayment.

C.R., Item 9.4 The notices all stated that the last day Claimant could appeal the
determinations was April 10, 2014. On the same day the six notices were mailed,

    4
       The first three notices pertain to Claimant’s eligibility and receipt of benefits under the
Pennsylvania Unemployment Compensation Law and form the basis for Appeal No. 14-09-B-
5592. The remaining three notices pertain to Claimant’s eligibility and receipt of emergency
unemployment compensation benefits under the EUC Act and form the basis for Appeal No.
EUC-14-09-B-5587. The first four of these notices are in the Certified Record at Item 9.
Apparently, due to the fact that the fifth and sixth notices were vacated by the Service Center via
its March 31, 2014 letter to Claimant and were later reissued on April 1, 2014, only the reissued
determinations are in the certified record at Item 11. However, reference to the original fifth and
sixth notices can be seen in the claim records. See C.R. Item 1. To avoid confusion and for ease
of reference, we will designate these determinations in the order they appear above along with
(Footnote continued on next page…)


                                                3
Claimant allegedly faxed a copy of her 2012 Schedule C to the Service Center.5
Then, on March 31, 2014, the Service Center sent Claimant a Letter to Vacate
Determination, which stated that:

               WHEREAS, on 3/26/2014, the [Service Center] issued a
               Notice of Determination under Section 4005(A)(B)(C),
               801(B)    of   the    Pennsylvania    Unemployment
               Compensation Law in the case of ERICA VICTORIA . . .
               and

               WHEREAS, the [Service Center] wishes to review its
               determination; and

               HEREBY, the [Service Center] vacates the Notice of
               Determination shown above and, if necessary, another
               determination will be issued pending a further review of
               all facts ascertained in this case.

C.R. Item 10.6        The very next day, the Service Center issued two revised
determinations.7 The last day to take an appeal from these revised determinations
was April 16, 2014.
_____________________________
(continued…)
the date mailed, e.g., the first through the fourth followed by the date they were mailed, March
26, 2014; and the fifth and the sixth followed by the date they were reissued, or April 1, 2014.
     5
       While we could not find this document in the certified record, the claim records related to
her EUC claim show the following notations:
                140326 SGA CLM TO FAX SCHEDULE C
                140326 SGA VERIFIED CLMT WHO GAVE ME PERMISSION
                TO S/W PAT DIMM, FRIEND
C.R. Item 1.
     6
       Although Pennsylvania’s Unemployment Compensation Law does not have a Section
4005, the Board argues that only the fifth and sixth notices of determination, relating to
Claimant’s EUC claim, refer to Section 4005 of the EUC Act, 26 U.S.C. § 3304 note, and,
therefore, are the determinations referred to in the March 31, 2014 Letter to Vacate.
     7
       These notices determined that a fraud overpayment in the amount of $316 had been
established under Section 4005 of the EUC Act, 26 U.S.C. § 3304 note, and imposed four
penalty weeks under Section 801(b) of the Law, 43 P.S. § 871(b), with respect to Claimant’s
(Footnote continued on next page…)


                                                4
              On April 30, 2014, after both appeal deadlines had passed, a Notice of
Financial Determination Revised was issued, notifying Claimant that she was
financially eligible for benefits with respect to her original claim for
unemployment compensation benefits filed May 19, 2013.8
              Claimant filed appeals from the March 26, April 1, and April 30, 2014
notices of determination on May 30, 2014. At the hearing before the referee,
Claimant appeared pro se with an interpreter, and with her friend, Patricia Dimm,
whom Claimant had turned to for assistance sometime after receiving the notices.
Claimant sought to elicit testimony from Ms. Dimm because “she was the one who
helped me through the process.” Hearing of July 14, 2014, Notes of Testimony
(N.T.) at 1. However, the referee did not allow Ms. Dimm to testify, explaining
that:

              I cannot have somebody testify who just helped you
              through the process. It would have to be a witness who
              would be able to offer relevant firsthand testimony to the
              facts of this case.
                     ....
_____________________________
(continued…)
EUC claim, the only change being an increase in the amount of the overpayment, from $315 to
$316. C.R. Item 11.
     8
       This revised notice states:
                  This financial determination alone does not entitle you to benefits.
             A review of your employment history and present status must also be
             made to determine whether you meet all of the eligibility requirements
             specified in the Law.
See, Claimant’s Petitions for Appeal from Determination with Attachments, dated 5/30/14, C.R.
Item 13. Claimant attached this notice to her petition for appeal, it is not elsewhere in the
certified record. This revised notice informed Claimant that her weekly benefit rate was $271;
that her benefit year began May 19, 2013, and ended May 17, 2014; that her maximum benefit
entitlement was $7,046; and that the last day to timely appeal this determination was May 15,
2014. Claimant’s appeal from this determination was designated Appeal No. 14-09-B-5580. See
Hearing of July 14, 2014, Notes of Testimony (N.T.), at 3-4.



                                              5
             You can’t have somebody just assist you throughout
             participating in today’s hearing. The issue today deals
             with whether or not you filed a timely appeal. You are
             the party who filed the appeal. Therefore, it is relevant to
             your testimony only here today as to whether or not the
             appeal was filed timely. That would be the only
             testimony that the Referee will be accepting throughout
             today’s hearing.
Id. at 1-2. The referee then informed Ms. Dimm that she was present only as an
observer, whereupon Ms. Dimm stated that, “I did more than help her through the
process . . . I don’t know if she knows how to answer the questions, but I didn’t
help her file the claim. She brought it to me and that’s when I realized it was late
and I explained and I helped her file the claim that (inaudible). So I don’t know if
she knows how to answer it fully.” Id. at 2. Through the interpreter, Claimant
then testified that she filed her appeal late “[b]ecause I did not read English. I did
not understand. And every time I receive any letter, I (inaudible) her [Patricia
Dimm] because she’s the one helping me.” Id. at 8. When asked by the referee
why she did not contact the unemployment compensation office for assistance,
Claimant testified that she had “no idea if they were able to help me with that” and
that, “I didn’t know the content of that letter. I thought it was one of those letters
they send you all the time.” Id. at 8-9. Claimant explained further that:

             When I went to see her [Patricia Dimm] . . . she was
             very, very sick and I didn’t want to tell her anything so I
             went to seek some help from my nephew. He speaks
             English and he speaks Spanish. And then he just said
             that the unemployment only - - they were going to pay
             me just $35 more and that was the purpose of the letter.
             And then I asked him do I owe $35 and he did not tell me
             what really is. And then I went to see her [Patricia
             Dimm] and she clarified and told me what was happening
             in my case.
                    ....


                                          6
               When my nephew said that I owed $35, I called the
               unemployment team and they say that I was late.
               Something about my appeal. But I did not understand
               what they were saying. And that’s the moment when I
               went to see [Patricia Dimm] and then she told me exactly
               what was happening.

Id. at 9. As to each of the appeals, Claimant’s response was the same, that she
“was ignorant,” that she “didn’t know,” and that she filed late because Ms. Dimm
“was very sick and I didn’t want to bother her.” Id. at 10.
               The referee found that copies of all of the notices were sent to
Claimant’s last known post office address; that these notices were not returned by
postal authorities as being undeliverable; that Claimant did not file an appeal on or
before April 10, 2014 or on or before April 16, 2014; that Claimant did not file her
appeals until May 30, 2014; and that Claimant “was not misinformed nor in any
way misled regarding the right of appeal or the need to appeal.”                       Referee’s
Decision/Order, Appeal Number EUC-14-09-B-5587, July 16, 2014, Findings of
Fact Nos. 6-9 at 1-2; Referee’s Decision/Order, Appeal Number 14-09-B-5592,
July 16, 2014, Findings of Fact Nos. 5-8 at 1-2.9 Thereafter, Claimant appealed to
the Board, which affirmed both decisions. This appeal followed.
               On appeal to this court, Claimant raises the following issues: 1)
whether the Letter to Vacate Determination mailed on March 31, 2014, vacated all

    9
      The record shows that Claimant attempted to appeal the April 30, 2014 Notice of Financial
Determination along with the March 26 and April 1, 2014 notices, and the referee questioned
Claimant regarding the untimeliness of this appeal. See, N.T. at 8-9. However, the referee never
made any findings of fact or conclusions of law with respect to this determination, but apparently
dismissed the appeal, noting on the first page of the hearing transcript that, “14-09-B-5580 (Did
Not Appeal).” C.R. Item 17. Claimant did not appeal this decision either before the Board or
this court and acknowledges in her brief that the referee “dismissed [her] appeal of the [April 30,
2014] Notice of Financial Determination” and that “[that] decision is not at issue on this appeal.”
Claimant’s Brief at 6.



                                                7
of the determinations issued on March 26, 2014, because it was vague and lacked
specificity as to which determination it intended to vacate; 2) whether the March
31, 2014 Letter to Vacate was so misleading as to constitute a breakdown of the
administrative process warranting allowance of her nunc pro tunc appeal; 3)
whether the referee’s refusal to permit Claimant’s witness to testify denied her a
full and fair hearing; and 4) whether the underlying notice of determination finding
her ineligible for benefits issued March 26, 2014, was erroneous in light of the
subsequent April 30, 2014 revised Notice of Financial Determination that Claimant
was eligible for unemployment compensation benefits under the Law.
            In order to reach a proper resolution of the issues before us, we will
address Claimant’s final issue first. Claimant argues that the revised determination
issued on April 30, 2014, in which she was determined to be eligible for benefits,
in essence, superseded the previous determinations sent on March 26 and April 1,
2014, which had determined her ineligibility and established the overpayments and
assessed penalty weeks. She contends that the Service Center intended to vacate
those adverse determinations when it sent out its March 31 letter and that even if,
as the Board contends, it was only intended to vacate the determinations
establishing a fraud overpayment (fifth notice issued 4/1/14) and assessing penalty
weeks (sixth notice issued 4/1/14) pursuant to the EUC Act, because it was
misleading and confusing, it constitutes a breakdown in the administrative process
warranting her late appeal. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d
1130 (Pa. 1996). As to the merits of her appeal, Claimant avers that because she
provided the Service Center with her 2012 Schedule C to support that her self-
employment qualified as a sideline business, and the unemployment authority
apparently agreed that she was indeed eligible for benefits as evidenced by the



                                         8
revised determination, then it follows that the prior determinations are invalid and
any attempts to collect a fault overpayment “are without any legal foundation.”
Claimant’s Brief at 17. After review, we are constrained to agree.
             Section 501(e) of the Law provides that a claimant must appeal a
determination within fifteen calendar days after it was mailed to her last known
post office address or such determination will be final. 43 P.S. § 821(e). The
Service Center may issue a revised notice of determination within the appeal
period if no appeal has been filed. Garza v. Unemployment Comp. Bd. of Review,
669 A.2d 445, 447 (Pa. Cmwlth. 1995). The Service Center may also, in the
alternative, issue a letter vacating the initial determination within the fifteen day
appeal period if no appeal has been filed, and thereafter, issue a revised
determination. Larry Pitt & Assoc., P.C. v. Unemployment Comp. Bd. of Review,
712 A.2d 827, 829 (Pa. Cmwlth. 1998). However, the Service Center may not
issue a revised notice of determination after the appeal period has expired; the
determination becomes final and the Board loses jurisdiction to consider the
matter. Pennsylvania Tpk. Comm’n v. Unemployment Comp. Bd. of Review, 991
A.2d 971, 974 (Pa. Cmwlth. 2009) [citing Vereb v. Unemployment Comp. Bd. of
Review, 676 A.2d 1290 (Pa. Cmwlth. 1996)]. The statutory time limit for filing an
appeal is mandatory in the absence of fraud or manifestly wrong or negligent
conduct of the administrative authority, and the claimant bears 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). A nunc pro tunc appeal
may be allowed where extraordinary circumstances involving fraud, some
breakdown in the administrative process or non-negligent circumstances caused the
delay. Cook, 671 A.2d at 1131.



                                         9
             In this case, apparently because “multiple employers” were indicated
and because the Service Center did not have sufficient information “to show
whether claimant’s earnings in regular employment exceeded the net profit from
the self-employment,” Claimant was initially determined to be ineligible for
benefits pursuant to Section 402(h) of the Law. First Notice, issued 3/26/14, C.R.
Item 9. After issuing the March 26 determinations, the Service Center then sent
Claimant the letter to vacate followed by the April 1 determinations.
             We find persuasive a recent decision by this court, Walsh v.
Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1248 C.D.
2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374. There, the
claimant received an initial determination that she was ineligible for benefits and
filed an appeal. Thereafter, based on information received from employer only, the
service center issued a second determination that she was ineligible pursuant to
Section 402(b) of the Law, 43 P.S. § 802(b). That determination indicated that
claimant voluntarily quit her employment for unknown reasons and that there was
insufficient information to determine whether she had necessitous and compelling
reasons to do so. The claimant did not appeal the second determination, based on
her understanding that all issues relating to her eligibility would be resolved in her
appeal from the first determination. After a hearing, the referee reversed the first
determination, and in his decision, addressed not only whether claimant was
ineligible for failing to follow reporting requirements (which was the specific issue
in that appeal), he also addressed the mistakes made by the service center and the
circumstances of claimant’s separation from her employment (issues seemingly
related to the second determination). Employer did not appeal; however, when the
claimant’s benefits stopped as a result of her failure to appeal the second



                                         10
determination, she filed a late appeal. The referee dismissed the claimant’s appeal
as untimely and the Board affirmed, reasoning that it was the claimant’s own
misunderstanding that caused her to file a late appeal. On appeal to this court, the
claimant argued that:

              the manner in which the Service Center handled her
              separation from employment with Employer caused
              confusion regarding the necessity to appeal the second
              notice of determination . . . [and that] the mishandling of
              her unemployment compensation matter constituted a
              breakdown in the administrative process, such that nunc
              pro tunc relief is warranted.

Id. slip op. at 10; at *13-*14. We agreed with the claimant, concluding that she
had properly reported her temporary, part-time employment with employer and
that the service center had mistakenly attributed these earnings to multiple
employers, thus resulting in the initial determination of ineligibility. The service
center “then compounded the mistake, when . . . it issued the second . . .
determination, finding Claimant to be ineligible for yet another improper reason.”
Id. slip op. at 12; at *15. We reasoned that as a result of the service center’s
mishandling of her claim, the claimant was understandably confused which led to
“misstep[s] in her attempts to navigate her way through the Service Center’s
errors.” Id. slip op. at 13; at *18-*19. We therefore held that these circumstances
constituted a breakdown in the administrative process and allowed the claimant’s
untimely appeal.10

    10
       See also Carr v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 662 C.D. 2014,
filed December 19, 2014), 2014 Pa. Commw. Unpub. LEXIS 728 (the Department’s conduct
contributed to employer’s confusion, as its unexplained failure to respond to employer’s timely
appeal from claimant’s earlier application for benefits coupled with the timing of claimant’s
attempts to re-open an earlier claim and also simultaneously apply for workers’ compensation
(Footnote continued on next page…)


                                              11
               Similarly, here we believe that the Service Center’s mishandling of
her claim constitutes a breakdown in the administrative process warranting a nunc
pro tunc appeal. However, despite the fact that both appeal periods had expired on
April 10 and 16, respectively, the Service Center, without apparent authority to do
so, see, e.g., Pennsylvania Turnpike Commission, issued the revised determination
now holding Claimant was not ineligible for benefits under Section 402(h) of the
Law.
               Thus, while it would appear that denial of the EUC claim and related
penalty week and fraud overpayment assessments remain extant, the current status
of Claimant’s claim for unemployment compensation benefits is entirely unclear.
               Accordingly, we vacate the orders of the Board and remand for a
determination and/or clarification as to which benefits have been denied and which
have been granted along with the status of any fraud overpayment and penalty
week determination, and for an appeal, nunc pro tunc, from any determinations as
to which Claimant is aggrieved.




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Judge


Judge McCullough concurs.

_____________________________
(continued…)
benefits, all contributed to the situation confronting employer and constituted sufficient grounds
to allow nunc pro tunc relief, citing both Walsh and Boettcher v. Unemployment Compensation
Board of Review, (Pa. Cmwlth., No. 549 C.D. 2013, filed October 21, 2013), 2013 Pa. Commw.
Unpub. LEXIS 778).



                                               12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erica Victoria,                             :
                          Petitioner        :
                                            :
                   v.                       :     Nos. 1809 and 1810 C.D. 2014
                                            :
Unemployment Compensation                   :
Board of Review,                            :
                    Respondent              :


                                       ORDER


             AND NOW, this 14th day of October, 2015, the orders of the
Unemployment Compensation Board of Review in the above-captioned matter
with respect to Appeal No. EUC-14-09-B-5587 and Appeal No. 14-09-B-5592, are
hereby VACATED. We REMAND the matter to the Board for further proceedings
consistent with this opinion.
             Jurisdiction relinquished.




                                          _____________________________________
                                          BONNIE BRIGANCE LEADBETTER,
                                          Judge
