                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Danilbek Karmiev,                              :
                          Petitioner           :
                                               :
                   v.                          : No. 1060 C.D. 2016
                                               : SUBMITTED: December 9, 2016
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:            HONORABLE ROBERT SIMPSON, Judge
                   HONORABLE JULIA K. HEARTHWAY, Judge
                   HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                                FILED: March 24, 2017

                   Danilbek Karmiev (Claimant) petitions pro se for review of an order
by the Unemployment Compensation Board of Review (Board) affirming the
decision of a referee, who dismissed Claimant’s appeal of a Notice of
Determination issued by the Department of Labor and Industry (Department). The
Board determined that Claimant had failed to file a timely appeal of the
Department’s determination under section 501(e) of the Unemployment
Compensation Law (Law).1 We affirm.




          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).
                Claimant was employed by and served as a corporate officer for
MedAlliance Ambulance, LLC (Employer) from October 1, 2012 until September
30, 2014. (C.R. Item No. 3.) Claimant filed for unemployment compensation
benefits on October 19, 2014.        Claimant collected benefits for the period of
October 25, 2014 to May 2, 2015. Thereafter, the Department determined that
Claimant’s position as a corporate officer made him ineligible for benefits under
section 402(h)2 of the Law. Notice of that determination was mailed to Claimant
on December 4, 2015; the notice stated that the deadline for Claimant to file an
appeal of the determination was December 21, 2015. (C.R. Item No. 9.)


                However, Claimant did not file an appeal until January 31, 2016 (41
days after the deadline). Claimant asserted he was unable to file a timely appeal
because he was working in another state from December 18, 2015 until January 22,
2016. (C.R. Item No. 10.) On February 4, 2016, a notice was sent to Claimant that
a hearing regarding the timeliness of the appeal was scheduled for February 18,
2016. On February 10, 2016, Claimant requested a continuance of that hearing,
indicating that he would be working out-of-state on the hearing date. The hearing
was rescheduled for February 23, 2016, and an updated notice was mailed to
Claimant on February 11, 2016. On February 23, 2016, the hearing was held
before a referee without appearance by Claimant. (C.R. Item No. 13.) The referee
dismissed Claimant’s appeal as untimely because it was filed after December 21,
2015. (C.R. Item No. 14.)




      2
          43 P.S. § 802(h).


                                          2
              On February 29, 2016, Claimant appealed the referee’s decision to the
Board, which remanded the matter to the referee to determine if Claimant had good
cause for non-appearance at the hearing on February 23, 2016. Claimant testified
before the referee that he missed the hearing on February 23, 2016, because his
vehicle broke down in another state. (C.R. Item No. 21, Notes of Testimony,
4/27/16, at 7-17.) Claimant also testified that he did not file his initial appeal on
time because he was working away from home and did not make arrangements for
anyone to check his mail. (Id. at 15-16.) On May 27, 2016, the Board affirmed the
referee’s decision to reject Claimant’s appeal as untimely. This appeal followed.3


              The primary issue in this case is whether Claimant filed a timely
appeal to the Department’s determination that he was ineligible for benefits under
section 501(e) of the Law, which provides that determinations by the Department
become final if not appealed within fifteen days after the notice mailing date. 43
P.S. § 821(e). In circumstances where the filing of an appeal was delayed, a
claimant is permitted to appeal nunc pro tunc when the delay is caused by
“extraordinary circumstances involving fraud or some breakdown of the court’s
operation through a default of its officers.” Cook v. Unemployment Compensation
Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996) (quotations omitted). An appeal
may also be filed nunc pro tunc when the delay is caused by the non-negligent
conduct of the claimant’s attorney or his staff. Id. (quoting Bass v. Commonwealth
Bureau of Corrections, 401 A.2d 1133 (Pa. 1979)).

       3
          Our 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. Kirkwood v. Unemployment Comp. Board of Review, 525
A.2d 841, 843-44 (Pa. Cmwlth. 1987).


                                             3
             Claimant argues that the Board erred in failing to accept his appeal
nunc pro tunc. Claimant does not dispute that he received the notice or that his
appeal was not filed within the fifteen-day period. Nor does Claimant present
evidence that his filing was untimely due to any fraud or administrative
breakdown. He argues that because the delay in filing his appeal within the
statutory period was due to work-related travel, his appeal was filed late due to
non-negligent conduct.


             However, the opportunity to appeal nunc pro tunc is limited strictly to
unique and compelling factual circumstances to avoid unnecessary determinations
on whether every untimely filing should be permitted to go forward.            Ho v.
Unemployment Compensation Bd. of Review, 525 A.2d 874, 875 (Pa. Cmwlth.
1987) (quoting Bass, 401 A.2d at 1137 (Roberts, J. dissenting)).          In Ho, we
determined that the claimant could not appeal nunc pro tunc when “her failure to
take measures to ascertain the contents of the letter [containing the notice] resulted
in her delaying in filing the appeal.”        Id.   When a claimant applies for
unemployment compensation benefits, he avails himself of our administrative
system and implicitly assumes a duty to either comply with our administrative
procedures or risk forfeiting his claim. Id. Claimant had clear control over the
circumstances which resulted in filing his appeal beyond the fifteen day period.
He has failed to demonstrate the type of extraordinary circumstances that would
warrant proceeding nunc pro tunc. As a result, the Board did not err when it
affirmed the referee’s dismissal of Claimant’s untimely appeal.




                                          4
            Claimant also argues that he would have succeeded on the merits had
the referee or the Board accepted his appeal. However, the Board does not have
jurisdiction to consider an untimely appeal.        Edwards v. Unemployment
Compensation Bd. of Review, 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994). Because
Claimant’s appeal was untimely, the Board did not err in declining to consider the
merits of Claimant’s appeal.


            For these reasons, we affirm.



                                     __________________________________
                                     JULIA K. HEARTHWAY, Judge




                                        5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Danilbek Karmiev,                 :
                    Petitioner    :
                                  :
           v.                     : No. 1060 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                 ORDER


           AND NOW, this 24th day of March, 2017, the order of the
Unemployment Compensation Board of Review is affirmed.




                                  __________________________________
                                  JULIA K. HEARTHWAY, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Danilbek Karmiev,                       :
                    Petitioner          :
                                        :
             v.                         :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 1060 C.D. 2016
                 Respondent             :   Submitted: December 9, 2016



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                           FILED: March 24, 2017


            As the Majority’s opinion ignores (and does damage to) the equitable
principles surrounding nunc pro tunc questions enunciated in cases such as Bass v.
Commonwealth, 401 A.2d 1133 (Pa. 1979) and Criss v. Wise, 781 A.2d 1156 (Pa.
2001), I must dissent.




                                     ___________________________
                                     JOSEPH M. COSGROVE, Judge
