              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chad Ross,                                     :
                       Petitioner              :
                                               :
                 v.                            :
                                               :
Unemployment Compensation                      :
Board of Review,                               :   No. 408 C.D. 2019
                 Respondent                    :   Submitted: May 11, 2020



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                            FILED: June 5, 2020


                 Chad Ross (Claimant) petitions for review of the March 7, 2019 order
of the Unemployment Compensation Board of Review (Board) affirming the order
of the referee dismissing his appeal as untimely pursuant to Section 501(e) of the
Unemployment Compensation Law (Law).1 Upon review, we affirm.
                 Claimant was employed by Wal-Mart Associates, Inc. (Employer) from
September 12, 1994 until March 30, 2018, when he was laid off. Employer Inquiry
Notice at 1 & 3, Reproduced Record (R.R.) at 10a & 12a. On April 18, 2018,
Claimant submitted a claim for unemployment compensation benefits (benefits)
over the internet. See Claim Record at 2, R.R. at 3a. On April 19, 2018, Employer

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e).
stated on a form titled ‘Claimant and Employer Information’ that Claimant would
not receive compensation after his separation from employment. R.R. at 16a.
Claimant thereafter began receiving benefits. See Claim Record at 4, R.R. at 5a.
                On November 19, 2018, the Unemployment Compensation (UC)
Service Center sent Claimant a notice of determination deeming Claimant ineligible
for benefits for weeks ending April 21, 2018 through October 20, 2018 due to his
receipt of severance pay from Employer, and reducing Claimant’s benefits by
$725.00 for the week ending October 27, 2018.                   Notice of Determination of
Ineligibility, R.R. at 22a. The UC Service Center determined that the deductible
amount of severance pay received by Claimant was $46,895.00 pursuant to Section
404(d)(1.1) of the Law,2 43 P.S. § 804(d)(1.1), and that this amount would be
attributed to the 31 weeks immediately following Claimant’s separation.3 Id.
                Also on November 19, 2018, the UC Service Center sent Claimant a
separate notice of determination of an overpayment of benefits in the amount of
$10,488.00, determining that Claimant was at fault for the overpayment because he
knowingly withheld information regarding severance pay in order to obtain benefits
and informing Claimant of his obligation to repay the overpayment in accordance
with Section 804(a) of the Law, 43 P.S. § 874(a). Notice of Determination of




       2
           Section 404(d)(1.1) was added by Section 5 of the Act of June 17, 2011, P.L. 16.
       3
         Prior to January 1, 2012, severance payments received by an employee from his employer
based upon his separation from employment were not deductible from the employee’s benefits.
However, Section 404(d)(1) of the Law was amended in 2011 to include clause (iii), 43 P.S.
§ 804(d)(1)(iii), which requires the deduction of severance payments from benefits. Killian-
McCombie v. Unemployment Comp. Bd. of Review, 62 A.3d 498, 500 (Pa. Cmwlth. 2013). Section
404(d)(1.1) sets forth the formula for determining how much of the severance pay is deductible
from the benefits received each week.

                                                 2
Overpayment of Benefits at 1, R.R. at 24a; see also UC Overpayment Classification
Worksheet at 1, R.R. at 20a.
              This notice of determination included appeal instructions advising
Claimant that if he filed an appeal electronically, he “accept[ed] the risk of delay,
disruption or interruption of electronic signals, which may affect the timeliness of
the appeal.” R.R. at 27a. Both determinations were mailed to Claimant’s address
of record and received by Claimant.4 Referee’s Decision & Order at 1, Finding of
Fact (F.F.) 2, R.R. at 86a. Although these determinations instructed Claimant to
appeal by December 4, 2018, the UC Service Center did not record receipt of
Claimant’s appeal until December 7, 2018, when Claimant’s attorney submitted his
appeal via fax. F.F. 3-5; see also Claim Record at 1, R.R. at 2a. Claimant identified
the following grounds for appeal:

              The [UC] Service Center determined that Claimant
              received a FAULT overpayment in the amount of
              $10,488[.00] due to his receipt of certain payments found
              to have been severance pay. To the extent that the funds
              received from [E]mployer could be considered “severance
              [p]ay[,]” . . . that fact was unclear on both the face and
              context of the Agreement. Claimant asserts that the
              ambiguity precludes the finding of a FAULT
              overpayment.

Petition for Appeal, R.R. at 32a.
              On January 3, 2019, the referee conducted a hearing in which Claimant
and his attorney participated by telephone. Transcript of Testimony (T.T.) at 1, R.R.
at 59a. The referee stated that the purpose of the hearing was to determine whether


       4
         The record indicates that the determinations were mailed to Claimant’s address in
Delaware. See Notice of Determination of Ineligibility at 1, R.R. at 22a; Notice of Determination
of Overpayment of Benefits at 1, R.R. at 24a.
                                               3
Claimant timely submitted his appeal, noting that a subsequent hearing would be
held to address the merits of the case if the appeal was deemed timely. T.T. at 2.
Claimant’s attorney indicated that he submitted Claimant’s appeal electronically on
December 4, 2018. T.T. at 4. Stating that he received neither confirmation nor error
messages upon electronically submitting the appeal, Claimant’s attorney alleged that
the UC Service Center must have failed to receive Claimant’s appeal due to
administrative error, such as improper functioning of the agency’s computer system.
See T.T. at 5-7. Asserting that he only learned upon calling the UC Service Center
two days later that the appeal had not been received, Claimant’s attorney noted that
he then submitted the appeal via fax. T.T. at 4-5.
               On January 4, 2019, the referee issued a decision and order dismissing
Claimant’s appeal as untimely. Referee’s Decision & Order at 2, R.R. at 70a. The
referee noted that a claimant has 15 days to file an appeal from a final determination
of the UC Service Center pursuant to Section 501(e) of the Law, 43 P.S. § 821(e).5
Id. The referee further noted that jurisdiction may be exercised over an untimely
appeal when justified by fraud, a breakdown in the administrative process or the non-
negligent conduct of the party appealing or that party’s representative. Id. The
referee also noted that an appeal submitted via electronic transmission is deemed
filed on the date recorded by the Department of Labor and Industry’s Office of
Unemployment Compensation Benefits (Department) and that a party filing by such
means is responsible for any delay caused by the interruption of electronic signals.
Id. (citing Section 101.82(b)(4) of the Board’s Regulations, 34 Pa. Code §
       5
           Section 501(e) of the Law provides that “[u]nless the claimant . . . files an appeal . . .
within fifteen calendar days after such notice was delivered to him personally, or was mailed to
his last known post office address, and applies for a hearing, such determination of the [Department
of Labor and Industry] . . . shall be final and compensation shall be paid or denied in accordance
therewith.” 43 P.S. § 821(e).

                                                 4
101.82(b)(4)). The referee rejected the contention of Claimant’s attorney that
administrative error in the form of an alleged malfunction of the Department’s
website contributed to the untimeliness of the appeal. See id. The referee pointed
out that Claimant’s attorney failed to provide any documentation evidencing his
attempt to submit the appeal electronically on December 4, 2018, such as an e-mail
from the “sent” files of his account, or any proof that he called the UC Service Center
to attempt to confirm receipt. Id. Reasoning that “the Law is clear that a party
sending an appeal electronically is responsible for any delay, disruption, or
interruption of electronic signals,” the referee thus dismissed Claimant’s appeal as
untimely. Id.
              Claimant sought review of the referee’s decision on January 22, 2019,
identifying the following grounds for appeal: “[t]imeliness of [a]ppeal; [l]ack of
effective service; [and] [l]ack of subject matter jurisdiction.” R.R. at 75a, 79a &
81a. The Board affirmed on March 7, 2019, adopting and incorporating the referee’s
findings and conclusions. Board’s Order at 1, R.R. at 83a.
              Before this Court,6 Claimant argues that he is entitled to appeal nunc
pro tunc due to a breakdown in the administrative process. Claimant’s Brief at 17.
Claimant contends that the UC Service Center provided inadequate notice of the
determination of fault overpayment of benefits. Id. In support of these assertions,
Claimant cites Employer’s statement on a form submitted to the Department that


       6
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed, or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014); see also Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704. Further, where, as here, the petitioner does not dispute the findings of fact, they are
conclusive on appeal. Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492 (Pa. Cmwlth.
2000).

                                              5
Claimant would receive no additional compensation following his separation from
employment. See Claimant and Employer Information at 3, R.R. at 16a. Claimant
further contends that he “has a potentially meritorious defense based on the
ambiguity of communications from his former employer.” Claimant’s Brief at 17.
             Section 501(e) of the Law provides that unless a claimant appeals a
determination within 15 days, such determination “shall be final and compensation
shall be paid or denied in accordance therewith.” 43 P.S. § 821(e). This 15-day
appeal requirement is mandatory and subject to strict application.           Vereb v.
Unemployment Comp. Bd. of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996).
“Appeal periods, 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.” Shea v. Unemployment Comp. Bd. of Review, 898 A.2d 31, 33 (Pa.
Cmwlth. 2006); see also Edwards v. Unemployment Comp. Bd. of Review, 639 A.2d
1279, 1281 (Pa. Cmwlth. 1994) (stating that the referee and the Board lack
jurisdiction to consider appeals filed outside the 15-day window established in
Section 501(e) of the Law, 43 P.S. § 821(e)). Thus, “an appeal filed merely one day
after the expiration of the fifteen-day time period must be dismissed as an untimely
appeal.” Shea, 898 A.2d at 33. Therefore, the “failure to file an appeal within fifteen
days, without an adequate excuse for the late filing, mandates dismissal of the
appeal.” U.S. Postal Serv. v. Unemployment Comp. Bd. of Review, 620 A.2d 572,
573 (Pa. Cmwlth. 1993).
             However, “[a]n appeal nunc pro tunc may be permitted when a delay
in filing the appeal is caused by extraordinary circumstances involving fraud,
administrative breakdown, or non-negligent conduct, either by a third party or by the
[claimant].” Suber v. Unemployment Comp. Bd. of Review, 126 A.3d 410, 412 (Pa.


                                          6
Cmwlth. 2015) (quoting Mountain Home Beagle Media v. Unemployment Comp.
Bd. of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008)). A breakdown in the
administrative process occurs “where an administrative board or body is negligent,
acts improperly or unintentionally misleads a party.” Hessou v. Unemployment
Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (quoting Union
Electric Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746
A.2d 581, 584 (Pa. 2000)). “[T]he claimant bears a heavy burden to justify an
untimely appeal.” Roman–Hutchinson v. Unemployment Comp. Bd. of Review, 972
A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009).
              Here, Claimant asserts for the first time in his brief that he is entitled to
nunc pro tunc relief because the Department provided inadequate notice of the
determination of fault overpayment of benefits by sending the determination to his
old address. Claimant alleges that he received the notices at his present North
Carolina residence on November 30, 2018 after “substantial delay due to forwarding
time and a postal holiday.”7 Claimant’s Brief at 6. Claimant further contends that
the Board erred in failing to recognize that the Department violated his due process
rights by sending the notice of determination of fault overpayment via First-Class
Mail without requiring a signed receipt when he was residing outside the
Commonwealth, such that he had only three business days within which to timely
file an appeal. See Claimant’s Brief at 12-16. As the Board notes in its brief,
however, none of these contentions were made before the referee and, as such, are
waived. See Board’s Brief at 10-14.
              At the hearing, Claimant’s attorney only contended that nunc pro tunc
relief was appropriate due to administrative error in the form of a failure of the

       7
         The record is unclear as to the date when Claimant relocated from Delaware to North
Carolina.
                                             7
Department’s electronic transmission process and did not raise the other arguments
now raised in his brief before this Court. See T.T. at 5-7. Thus, Claimant failed to
preserve any of these issues for appellate review. See Chapman v. Unemployment
Comp. Bd. of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011) (holding that an
“allegation of error . . . [was] waived for purposes of appeal, and [would] not be
addressed for the first time by this Court” where it “was not raised either before the
[r]eferee or before the Board”); see also Pa.R.A.P. 1551(a) (providing that in
exercising its appellate jurisdiction, “[n]o question shall be heard or considered by
the court which was not raised before the government unit”); Section 703(a) of the
Administrative Agency Law, 2 Pa.C.S. § 703(a) (stating that a “party may not raise
upon appeal any other question not raised before the agency”).8
               Claimant does not maintain on appeal his previous argument that
administrative error in the form of some presumptive malfunction of the
Department’s electronic transmission contributed to the untimeliness of his appeal.
However, we note that had Claimant raised this argument on appeal, he would not
prevail. See Section 101.82(b)(4) of the Board’s Regulations, 34 Pa. Code §
101.82(b)(4) (stating that “[a] party filing an appeal by electronic transmission is
responsible . . . for delay, disruption, interruption of electronic signals and

       8
          Claimant also argues, on appeal for the first time, that the 15-day appeal requirement
contained in Section 501(e) applies only to determinations regarding the validity of applications
and eligibility for benefits, and that the imposition of a penalty under Section 804 of the Law is
not equivalent to a determination of eligibility. See Claimant’s Brief at 14. Again, Claimant did
not raise this argument in his appeal to the Board and, hence, it is waived. Pa.R.A.P. 1551(a);
Chapman. Even if not waived, as the Board correctly notes in its brief, this argument is without
merit as Section 804 of the Law explicitly calls for the issuance of overpayment determinations by
the Department and affords parties with the same appeal rights applicable to eligibility
determinations. See Section 804(b)(2) of the Law, 43 P.S. § 874(b)(2) (“The claimant and other
affected parties shall be notified in writing of the [D]epartment’s determination to deduct any sum
from future compensation under this section, and such determination shall be subject to appeal in
the manner provided in this act for appeals from determinations of compensation.”). See Board’s
Brief at 13.
                                                8
readability of the document and accepts the risk that the appeal may not be properly
or timely filed,” and that “[t]he date of filing is the receipt date recorded by the
Department appeal office or the Board’s electronic transmission system”); see also
McClean v. Unemployment Comp. Bd. of Review, 908 A.2d 956, 959 (Pa. Cmwlth.
2006) (affirming the Board’s refusal to grant an untimely appeal nunc pro tunc
where claimant accepted the risk of filing an appeal via e-mail in accordance with
Section 101.82(b)(4) of the Board’s Regulations, 34 Pa. Code § 101.82(b)(4)).
            Accordingly, we affirm.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chad Ross,                             :
                   Petitioner          :
                                       :
             v.                        :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 408 C.D. 2019
                 Respondent            :


                                   ORDER


             AND NOW, this 5th day of June, 2020, the March 7, 2019 order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
