           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio Williams,                        :
                          Petitioner     :
                                         :
                                         :
             v.                          :   No. 774 C.D. 2016
                                         :   No. 775 C.D. 2016
Unemployment Compensation                :   No. 776 C.D. 2016
Board of Review,                         :   Submitted: November 10, 2016
                    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: April 11, 2017

             Antonio Williams (Claimant) petitions, pro se, for review of three
separate orders of the Unemployment Compensation Board of Review (Board),
which affirmed decisions by an unemployment compensation referee (Referee)
dismissing Claimant’s appeals as untimely. For the reasons that follow, we affirm
the Board’s orders.
             On June 26, 2011, and March 31, 2013, Claimant filed applications
for unemployment compensation benefits and began receiving benefits.
Thereafter, the Department of Labor and Industry, Bureau of Unemployment
Compensation Benefits and Allowances (the Department), issued nine notices of
determination, wherein the Department determined that Claimant failed to report
earnings and imposed fault overpayments, penalty weeks, and a fifteen percent
penalty. Those notices are the subject of the three appeals to this Court. Six of the
notices relate to Claimant’s application for benefits filed on June 26, 2011. The
Department issued four of those six notices of determination on January 6, 2016,
and the notices identified January 21, 2016, as the final day to appeal.                     The
Department issued two more notices related to that application for benefits—the
fifth and sixth notices—on January 7, 2016, and the notices identified a final
appeal date of January 22, 2016. The other three notices of benefits—the seventh,
eighth, and ninth notices—related to Claimant’s application for benefits filed on
March 31, 2013. The seventh notice was issued on January 7, 2016, and identified
the final day to appeal as January 22, 2016. The eighth and ninth notices were
issued on January 8, 2016, and identified January 25, 2016, as the final day to file a
timely appeal.1
               Claimant appealed the Department’s determinations by faxed appeal
forms sent on January 28, 2016. The appeals were assigned to the Referee, who
conducted a hearing on February 26, 2016.2                  Claimant and Employer both
participated in the hearing. At the hearing, Claimant testified that he received the
notices of determination and had read and understood the notices.                     (Certified


       1
         The various notices recited Claimant’s weekly benefit rate and partial benefit credit for
various weeks and found that Claimant had unreported earnings during weeks in which he
received workers’ compensation benefits. Through the notices, the Department disapproved
benefits for specific waiting and claim weeks, see Section 401(e)(1) of the Unemployment
Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
amended, 43 P.S. § 801(e)(1); imposed fault overpayments under Section 804(a) of the Law, as
amended, 43 P.S. § 874(a); and imposed penalty weeks and a fifteen percent penalty under
Sections 801(b) and (c) of the Law, as amended, 43 P.S. §§ 871(b) and (c).
       2
         Claimant initially filed three separate appeals from the Department’s notices. The
Referee considered all three appeals at the February 26, 2016 hearing. This Court consolidated
these matters by order dated June 16, 2016.



                                                2
Record (C.R.), Item No. 9 at 6.) He further testified that he was aware of the
deadlines for filing appeals listed on the notices.               Claimant stated that, on
January 27, 2016, he called the telephone number of the Harrisburg Overflow
Unemployment Compensation Service Center (Service Center) listed on the
notices and a representative gave him information as to what he needed to do in
order to file an appeal. (Id. at 6-7.) He then filed his appeals. (Id. at 7-8.)
Claimant stated that he delayed in calling the Service Center because he did not
fully understand the appeal process and was having difficulty obtaining documents
he believed were relevant to the appeal.              (Id. at 8.)     Following Claimant’s
testimony, the Referee concluded the hearing.
              By three separate decisions mailed on February 26, 2016, the Referee
dismissed Claimant’s appeals as untimely pursuant to Section 501(e) of the Law.3
(C.R., Item No. 10.) In each decision, the Referee found that the notices had been
mailed to Claimant’s last known mailing address, were not returned by postal
authorities as undeliverable, and advised Claimant that he had fifteen days to file
an appeal. In all instances, Claimant filed his appeals late. Furthermore, the
Referee found nothing in the record to indicate that the late filings were caused by
fraud or its equivalent by administrative authorities, by a breakdown in the


       3
         Act of December 5, 1936, Second Ex. Sess., P.L. 2897, as amended, 43 P.S. § 821(e).
Section 501(e) of the Law provides:
               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 set forth in such notice, shall be
       final and compensation shall be paid or denied in accordance therewith.



                                               3
appellate system, or by non-negligent conduct. Claimant subsequently appealed
the Referee’s dismissals to the Board.
                By three separate orders dated April 4, 2016,4 the Board adopted the
Referee’s findings and conclusions in full, and, thus, affirmed the Referee’s
decisions dismissing Claimant’s appeals as untimely. Claimant then petitioned this
Court for review of the Board’s orders.
                On appeal,5 Claimant essentially argues that the Board erred as a
matter of law when it concluded that Claimant’s appeals were untimely or, in the
alternative, that Claimant’s untimely filing was excused because the Referee did
not provide him with an opportunity to explain his reasons for filing late. Claimant
also argues that the Referee deprived him of due process by failing to assist him in
the presentation of his claim.
                Section 501(e) of the Law provides that unless a claimant files an
appeal with respect to a notice of determination within fifteen calendar days after it
was mailed to his last known post office address, such determination will be final
and compensation shall be paid or denied in accordance therewith. The fifteen-day
time limit is mandatory and subject to strict application. Renda v. Unemployment
Comp. Bd. of Review, 837 A.2d 685, 695 (Pa. Cmwlth. 2003), appeal denied,
863 A.2d 1151 (Pa. 2004). Failure to timely appeal an administrative agency’s
action is a jurisdictional defect, and the time for taking an appeal cannot be
extended as a matter of grace or mere indulgence.                 Sofronski v. Civil Serv..

       4
           Appeal Nos. B-16-09-I-0320, B-16-09-I-0321, and B-16-I-0325.
       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.



                                               4
Comm’n, City of Philadelphia, 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 only 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 counselor, or a third party. Cook v.
Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996).
              We first address Claimant’s argument that the Referee erred in
concluding that his appeals were untimely. Initially, we note that Claimant does
not challenge the Board’s factual findings, and, therefore, they are binding on
appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167, 1169
(Pa. Cmwlth. 1997). Claimant admits in his brief that “[w]ith much regret, I
missed the deadline for filing with the Board by 7 days.” (Claimant’s Br. at 10.)
Claimant also testified before the Referee that he was aware of the deadlines to file
the appeals from the notices of determinations, which were listed on the notices,
and failed to timely file the appeals. Thus, it is clear that Claimant’s appeals from
the Department’s notices of determination were not timely filed and that the
Referee did not err in concluding that the appeals were untimely pursuant to
Section 501(e) of the Law.6

       6
         In his brief, Claimant appears to misapprehend the distinctions between the
Department’s notices of determination, the Referee’s decisions dismissing his appeals from the
Department’s notices of determination, and the Board’s orders affirming the Referee’s decisions.
Claimant also appears to argue that he called the Board’s offices on March 1, 2016, in order to
ask how to properly appeal the Board’s orders affirming the Referee’s decisions. He states that
he was misinformed by the Board and, thus, filed late appeals from the Board’s orders. His
(Footnote continued on next page…)

                                               5
              Claimant also argues that the Referee erred in failing to consider his
excuses for why his appeals were untimely. In other words, Claimant contends
that the Board erred in refusing to consider his appeals nunc pro tunc. At the
February 26, 2016 hearing, the Referee asked Claimant to explain his late filings,
to which he responded: “Because I wasn’t really sure of what I needed to do and
prior to calling the office, they just informed me to just fax over the information
that I needed off the back of the page and that’s what I did, I printed out all my
information and I faxed over what I had.” (C.R., Item No. 9 at 8.) At no point
during the hearing did Claimant attempt to raise any additional justifications for his
lateness, nor did he allude to any other reasons at that time. Claimant states in his
brief that he believed that he had to submit all relevant documents at the time he
filed his appeal and that he was unable to obtain all the relevant documents before
the date he called the Service Center to inquire about how to file an appeal.
              As stated above, Claimant bears a heavy burden to justify an untimely
appeal. Intermediate Unit #17, 645 A.2d at 449. Claimant must demonstrate the
late filings were caused by fraud or its equivalent by administrative authorities, by
a breakdown in the appellate system, or by non-negligent conduct. Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). The
only conduct Claimant has raised is his own failure to attempt to clarify the appeal
procedure before the deadline to file the appeals had already passed. Such conduct




(continued…)

appeals of the Board’s orders, however, were not untimely, and Employer does not argue that
Claimant’s appeals to this Court were untimely.



                                            6
unequivocally fails to justify an untimely appeal. Thus, the Board did not err in
refusing to consider Claimant’s appeals nunc pro tunc.
             Finally, Claimant argues that the Referee erred because “the Referee
did not give [him] the opportunity to explain the full circumstances surrounding
the filing of materials and did not provide him with the opportunity to request that
the lateness be excused by an extension” and that the Referee “did not provide the
procedural assistance in gathering and submitting documents that might be
afforded another pro se claimant.”      (Claimant’s Br. at 11.) To the extent that
Claimant now tries to raise a due process claim, Claimant failed to raise such a
claim on appeal to the Board, and the issue is waived on appeal to this Court. See
Schneider v. Unemployment Comp. Bd. of Review, 523 A.2d 1202, 1204 (Pa.
Cmwlth. 1987).
             Even if Claimant had not waived any due process claim, his argument
that the Referee failed to aid him in his presentation of his case is without merit.
When an unrepresented claimant appears before an unemployment compensation
referee, “the referee ‘must act reasonably in assisting in the development of the
necessary facts.”’ Hackler v. Unemployment Comp. Bd. of Review, 24 A.3d 1112,
1115 (Pa. Cmwlth. 2011) (quoting Bennett v. Unemployment Comp. Bd. of Review,
445 A.2d 258, 260 (Pa. Cmwlth. 1982) (emphasis in original)).             A referee,
however, need not advise the claimant on legal theory or become an advocate on
the claimant’s behalf.     McFadden v. Unemployment Comp. Bd. of Review,
806 A.2d 955, 958 (Pa. Cmwlth. 2002).
             At the outset of the hearing, the Referee informed Claimant of his
right to be represented by an attorney, to present evidence, to call witnesses, and to
give testimony on his own behalf. (C.R., Item No. 9 at 2.) Claimant indicated that


                                          7
he understood the rights as explained by the Referee. The Referee questioned
Claimant regarding the timeliness of his appeals and any reasons for Claimant’s
lateness in filing the appeals. (Id. at 6-8.) Additionally, after Claimant had given
testimony, Employer’s attorney stated that he had no questions for Claimant on
cross-examination. The Referee began to conclude the hearing, but heard Claimant
speak out. The Referee stated “One second, [Counsel], [Claimant] has something
to say.” (Id. at 9.) At that point, Claimant began to argue why he believed the
Referee should reverse or modify the Department’s determinations. The Referee
stated that he would not be hearing evidence on the merits of the case and
concluded the hearing.
            Clearly, the Referee fulfilled his duty to assist Claimant in eliciting
relevant evidence to support his claim. The Referee questioned Claimant on when
he faxed the appeal forms and asked if there was any reason that Claimant failed to
timely file the appeals. Claimant stated that he was aware that he filed the appeals
past the deadline and did not indicate that he had any reason for filing the appeals
late other than the fact that he was unsure about how to proceed in the appeal
process. The Referee adequately discharged his duty to assist Claimant in the
presentation of evidence to support his claim, and, thus, Claimant was afforded all
the process he was due and received a fair and impartial hearing.
            Accordingly, the orders of the Board are affirmed.




                                P. KEVIN BROBSON, Judge



                                         8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio Williams,                      :
                        Petitioner     :
                                       :
                                       :
            v.                         :   No. 774 C.D. 2016
                                       :   No. 775 C.D. 2016
Unemployment Compensation              :   No. 776 C.D. 2016
Board of Review,                       :
                    Respondent         :



                                     ORDER


            AND NOW, this 11th day of April, 2017, the three orders of the
Unemployment Compensation Board of Review, dated April 4, 2016, at Appeal
Nos. B-16-09-I-0320, B-16-09-I-0321, and B-16-09-I-0325, are affirmed.




                              P. KEVIN BROBSON, Judge
