          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edward John Salamon II,                      :
                           Petitioner        :
                                             :
            v.                               :   No. 597 C.D. 2019
                                             :   Submitted: December 6, 2019
Unemployment Compensation                    :
Board of Review,                             :
                    Respondent               :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: June 8, 2020


      Petitioner Edward John Salamon II (Claimant), pro se, petitions for review of
an order of the Unemployment Compensation Board of Review (Board). The Board
affirmed a Referee’s decision dismissing Claimant’s appeal as untimely pursuant to
Section 501(e) of the Unemployment Compensation Law (Law).1 Also before this

      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
            determination . . . shall be final and compensation shall be paid or
            denied in accordance therewith.
Court is the Board’s Application for Summary Relief, asking this Court to affirm the
Board’s order because Claimant has waived any challenge to that order. For the
reasons that follow, we grant the Board’s Application for Summary Relief and affirm
the Board’s order.
       Claimant worked as a pilot for US Airways, which merged with American
Airlines (Employer) in 2015. (See Certified Record (C.R.), Item No. 2 at 5.) On
September 15, 2018, Claimant was forced to retire after reaching the federally
mandated pilot retirement age of 65. (C.R., Item No. 6 at 4.) Claimant was initially
entitled to a pension through his employment with US Airways. As a result of US
Airways’ bankruptcies, however, the pension plan terminated. Claimant, therefore,
received no pension from Employer upon his retirement. (C.R., Item No. 2 at 5.)
After the loss of his pension, Claimant became eligible to receive retirement benefits
through the Pension Benefit Guaranty Corporation (PBGC)2 in the amount of
$3,462.00 per month during retirement (Retirement Benefit). (Id.)
       Upon retirement, Claimant also filed a claim for unemployment compensation
benefits. (C.R., Item No. 6 at 4.) On October 24, 2018, the Duquesne UC Service
Center (Service Center) issued a notice of determination (NOD), providing that,
although Claimant is eligible for unemployment compensation benefits,3 his weekly


       2
         The PBGC is “a private governmental corporation modeled after the Federal Deposit
Insurance Corporation and [is] charged statutorily with protecting and preserving private pension
plans.” In Re CF & I Fabricators of Utah, Inc., 150 F.3d 1293, 1295 (10th Cir. 1998), cert. denied,
526 U.S. 1145 (1999). “When a pension plan goes bankrupt, the PBGC is charged to pick up the
pieces and pay employees from the pension fund.” Bitonti v. Unemployment Comp. Bd. of Review,
737 A.2d 1290, 1290 n.1 (Pa. Cmwlth. 1999).
       3
         It appears that the Service Center determined Claimant’s eligibility for benefits in a
separate NOD (Initial NOD), also issued on October 24, 2018, that is not contained in the record
in this matter. Claimant attached a copy of the Initial NOD to his Petition for Review (Petition).


                                                2
benefit rate had been reduced to $0.00 after deduction of the Retirement Benefit, as
required by Section 404(d)(2)(i) of the Law.4 (C.R., Item No. 5.) The NOD stated
that Claimant’s last day to appeal was November 8, 2018. (Id.) Claimant did not
file his appeal from the NOD until January 14, 2019. (C.R., Item No. 6 at 1.)
       On February 4, 2019, a Referee conducted a hearing for the purpose of
addressing both the timeliness and the merits of Claimant’s appeal. (C.R., Item
No. 8.) Employer did not appear for the hearing. (C.R., Item No. 9.) Claimant
appeared pro se and testified on his own behalf. (Id.) He admitted that he initially
accepted the NOD as binding and did not desire to file an appeal before the
November 8, 2018 deadline. (Id. at 4, 6.) Claimant then explained that, several
weeks after the statutory appeal period expired, he learned that other pilots in the
same situation were receiving unemployment benefits with no deduction for PBGC
retirement benefits. (Id. at 4-5.) Thereafter, on December 26, 2018, he called a
representative of the Department’s Office of UC Benefits, who instructed him to file
a late appeal. (Id. at 3.) According to Claimant’s testimony, he attempted to file a
late appeal online shortly thereafter. (Id.) In support, Claimant introduced into the
record a confirmation page, which actually shows that, on December 28, 2018,
Claimant mistakenly refiled or reopened his application instead of filing an appeal
of the NOD. (C.R., Item No. 6 at 8.) During the hearing, Claimant generally argued


By order dated July 11, 2019, this Court struck the Initial NOD from the Petition and ordered that
it not be considered as part of this appeal.
       4
           43 P.S. § 804(d)(2)(i). Section 404(d)(2)(i) of the Law provides:
                 [F]or any week with respect to which an individual is receiving a
                 pension . . . or any other similar periodic payment . . . , the weekly
                 benefit amount payable to such individual for such week shall be
                 reduced, but not below zero, by the pro-rated weekly amount of the
                 pension . . . .

                                                   3
that his Retirement Benefit should not be deducted from his unemployment
compensation benefits. (C.R., Item No. 9 at 6-8.)
       By decision and order mailed February 5, 2019, the Referee dismissed
Claimant’s appeal as untimely. (C.R., Item No. 10.) Claimant appealed to the
Board, which affirmed the Referee’s decision. (C.R., Item No. 13.) In so doing, the
Board issued the following findings of fact:

              1.   Effective September 16, 2018, [Claimant] applied for
                   unemployment compensation benefits.

              2.   On October 24, 2018, the Department . . . issued a
                   determination deducting [Claimant’s] pension from
                   his receipt of benefits.

              3.   [Claimant] received the determination, which
                   notified him that November 8, 2018, was the final day
                   to file a valid appeal to a [R]eferee.

              4.   [Claimant] did not appeal by November 8, 2018,
                   because he accepted that he was ineligible for
                   benefits.

              5.   In December 2018, [Claimant] learned of a former
                   coworker who received benefits based on similar
                   circumstances.

              6.   On December 26, 2018, [Claimant] spoke with a
                   Department representative, who advised him he could
                   file a late appeal from the determination.

              7.   On December 28, 2018, [Claimant] reopened his
                   application for benefits, but did not file an appeal
                   from the determination.

              8.   [Claimant’s] appeal was filed on January 14, 2019.

(Id. at 1.)


                                          4
       The Board reasoned that because Section 501(e) of the Law provides that an
NOD shall become final unless an appeal is filed within 15 days of its issuance, the
Referee and the Board have no jurisdiction to consider an appeal that was filed after
the expiration of the statutory appeal period. (Id. at 2.) The Board further explained:
                    [Claimant] did not appeal by November 8, 2018,
              because he accepted that he was ineligible for benefits.
              When presented with different information, [Claimant]
              changed his mind and wanted to file an appeal. . . .
              [Claimant’s] negligent failure to file a timely appeal does
              not warrant appealing later.

                     Even if [Claimant] initially warranted an extension
              to appeal, he knew to appeal on December 26, 2018, but
              did not file an appeal until January 14, 2019. That
              [Claimant] mistakenly reopened his application for
              benefits, rather than file an appeal, is another instance of
              negligence on [Claimant’s] part, which does not justify a
              late appeal.

(Id.) Finally, the Board noted that Claimant did not raise before the Referee (and,
therefore, waived) the issue of whether the Department erred in issuing two NODs
simultaneously. (Id.)
       On appeal,5 Claimant addresses only the merits of his appeal and does not
address its timeliness. After Claimant filed his brief on appeal, the Board filed with
this Court an Application for Summary Relief, to which Claimant filed no answer.
The Board asserts that Claimant waived the issue of the timeliness of his appeal by
failing to argue that his appeal was timely or that the Board abused its discretion in
denying his late appeal. As a result, the Board claims that it is entitled to summary
relief in its favor. By order dated October 9, 2019, this Court directed that the

       5
         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.

                                               5
Application for Summary Relief be considered in conjunction with the merits of the
petition.
      Pursuant to Pennsylvania Rule of Appellate Procedure 1532(b), “[a]t any time
after the filing of a petition for review in an appellate or original jurisdiction matter
the court may on application enter judgment if the right of the applicant thereto is
clear.” When considering a motion for summary relief, “[we] must view the
evidence of record in the light most favorable to the non-moving party and may enter
judgment only if: (1) there are no genuine issues as to any material facts, and (2) the
right to relief is clear as a matter of law.” Nw. Youth Servs., Inc. v. Dep’t of Pub.
Welfare, 1 A.3d 988, 990 n.1 (Pa. Cmwlth. 2010), aff’d, 66 A.3d 301 (Pa. 2013).
      The 15-day time limit for appeals established in Section 501(e) of the Law is
mandatory and subject to strict application. 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). Failure to
appeal timely an administrative agency’s action is a jurisdictional defect, and the
appeal period cannot be extended as a matter of grace or mere indulgence. Sofronski
v. Civil Serv. Comm’n, City of Phila., 695 A.2d 921, 924 (Pa. Cmwlth. 1997). 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). As a result, an appeal nunc pro tunc may be allowed where the
delay in filing the appeal was caused by extraordinary circumstances involving fraud
or some breakdown in the administrative process, or non-negligent circumstances
related to the petitioner, his counsel, or a third party. Cook v. Unemployment Comp.
Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996).




                                           6
       In his petition and his brief on appeal, Claimant presents no argument
whatsoever regarding the timeliness of his appeal or his right to proceed with an
appeal nunc pro tunc. Nor does Claimant contend that the Board erred or abused its
discretion in dismissing his appeal based on its untimeliness.                   We conclude,
therefore, that Claimant has waived these issues. See Rapid Pallet v. Unemployment
Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (holding that failure
to develop issue in appellate brief results in waiver). Because untimeliness was the
only basis on which the Board dismissed Claimant’s appeal, Claimant has failed to
preserve any issue for this Court’s review, and the Board’s right to relief is clear.
Accordingly, we grant the Board’s Application for Summary Relief and affirm the
Board’s order.6




                                                P. KEVIN BROBSON, Judge




       6
          We note that, even if Claimant had preserved the issue of timeliness on appeal, we would
affirm the Board’s order. The record, including Claimant’s testimony, clearly establishes that
Claimant failed to appeal the Referee’s determination within the statutory time period. Moreover,
Claimant’s assertion that he discovered new information after the appeal deadline expired does not
justify nunc pro tunc relief. Claimant did not misunderstand the availability or necessity of a
timely appeal. See Greene v. Unemployment Comp. Bd. of Review, 157 A.3d 983, 992 (Pa.
Cmwlth.), appeal denied, 175 A.3d 217 (Pa. 2017). Accordingly, the Board did not err or abuse
its discretion in dismissing Claimant’s appeal.



                                                7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edward John Salamon II,                  :
                          Petitioner     :
                                         :
            v.                           :   No. 597 C.D. 2019
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :



                                       ORDER



            AND NOW, this 8th day of June, 2020, the Application for Summary
Relief filed by the Unemployment Compensation Board of Review (Board) is hereby
GRANTED, and the order of the Board is hereby AFFIRMED.




                                         P. KEVIN BROBSON, Judge
