             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lyne Walke,                                     :
                              Petitioner        :
                                                :
                      v.                        :    No. 762 C.D. 2019
                                                :    Submitted: December 6, 2019
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: April 8, 2020


       Lyne Walke (Claimant), proceeding pro se, petitions for review of the May
22, 2019 Order of the Unemployment Compensation Board of Review (Board) that
dismissed Claimant’s appeal from a Referee’s Decision as untimely pursuant to
Section 502 of the Unemployment Compensation Law1 (Law). On appeal, Claimant
argues the merits of her underlying unemployment compensation (UC) appeal, while
also acknowledging the untimeliness of her appeal to the Board. Claimant explains
her untimely appeal was the result of her misunderstanding the Referee’s Decision
and lack of understanding of the law.               The Board responds that Claimant’s
explanations for the untimeliness of the appeal are insufficient to establish that her

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822
(providing, in relevant part, that a referee’s decision “shall be deemed the final decision of the
board, unless an appeal is filed therefrom, within fifteen days after the date of such decision”).
appeal should have been considered nunc pro tunc. Because Claimant’s appeal to
the Board was untimely and her explanations do not meet the heavy burden of
proving that her appeal should have been considered timely, we are constrained to
affirm.
      In her brief, Claimant sets forth the full factual background of the merits of
her underlying appeal, which relate to determinations finding that she received UC
benefits for which she was ineligible due to her engaging in self-employment.
However, because the issue before the Court is whether the Board erred in
dismissing Claimant’s appeal as untimely, we set forth only the facts necessary to
resolve this limited issue. On December 7, 2018, the Referee issued a Decision
dismissing as untimely Claimant’s appeal from determinations that she was
ineligible for benefits, and therefore responsible for the overpayment of UC benefits
and penalties. The Referee’s Decision explained that, to be timely, Claimant’s
appeal from those determinations had to have been filed by November 6, 2018, but
Claimant had not filed her appeal until November 8, 2018. The Referee’s Decision
ended with the statement that “[t]he claimant’s appeal is, therefore, dismissed,” and
the Referee’s order stated “[t]he claimant’s Petition for Appeal is DISMISSED.”
(Referee Decision at 2.) The Referee’s Decision included two statements reflecting
that Claimant’s last day to appeal the Decision was December 24, 2018. (Id. at 1-
2.)
      The Referee’s Decision was mailed on December 7, 2018, to Claimant at her
last known postal address and was not returned as undeliverable. (Board Opinion,
Findings of Fact (FOF) ¶¶ 2, 4.) Claimant filed her appeal to the Board by fax on
February 5, 2019. (Id. ¶ 6.) Claimant explained that she “[d]id not have a full
understanding of [the] law and [she] need[ed] a new court date” and that she



                                         2
misunderstood the Referee’s Decision. (Petition for Appeal and Appeal Letter to
Board, R. Item 10.) The Board advised Claimant of the untimeliness of her appeal,
but provided her an opportunity to request a hearing on whether her appeal should
be considered timely. (Letter from Board to Claimant, R. Item 11.) Claimant
requested a hearing, which was held on April 16, 2019. At the hearing, Claimant
acknowledged that she received the Referee’s Decision around December 7, 2018,
and that when she reviewed that decision and saw the word “dismissed” she thought
that “everything[ had] worked out in [her] favor.” (Hr’g Tr. at 4-5, R. Item 16.) She
testified she did not realize that the Referee’s Decision had dismissed her appeal and,
had she understood, she would have filed an appeal of that Decision sooner. (Id. at
5-6, 9.) According to Claimant, it was not until she received a notice indicating she
had an overpayment that she had to repay that she went to a CareerLink counselor,
who advised Claimant that her appeal had been dismissed. (Id. at 6.) At that point,
Claimant faxed her appeal to the Board. (Id. at 7.) A representative of the
Department of Labor and Industry (Department) appeared at the hearing and testified
that Claimant’s appeal was not timely filed, a fact admitted by Claimant. (Id. at 9.)
      On May 22, 2019, the Board issued its decision in which it found as follows.
The Referee’s Decision was issued and mailed to Claimant at her last known postal
address on December 7, 2018, and was not returned as undeliverable. (FOF ¶¶ 1-2,
4.) That Decision advised Claimant she had 15 days to appeal, which would have
been December 24, 2018. (Id. ¶¶ 3, 5.) Claimant’s appeal was not filed until
February 5, 2019, and the reason for Claimant’s delay was that “she misunderstood
the Referee’s decision even though it clearly stated that her appeal had been
dismissed.”    (Id. ¶¶ 6-7.)    There was no evidence that Claimant had been
misinformed or misled by any UC “authorities regarding her right or the necessity



                                          3
to appeal.” (Id. ¶ 8.) Based on these facts, and citing to Section 502’s mandatory
requirement that an appeal from a referee’s decision must be filed within 15 days of
the decision, the Board held that Claimant’s appeal was untimely. Further, the Board
concluded that the untimely “appeal was not caused by fraud or its equivalent by the
administrative authorities, a breakdown in the appellate system, or by non-negligent
conduct.” (Id. at 2.) For these reasons, the Board dismissed Claimant’s appeal from
the Referee’s Decision as untimely pursuant to Section 502 of the Law. (Id.)
Claimant now petitions this Court for review.2
       On appeal, Claimant does not dispute that her appeal to the Board was
untimely or argue that she was misled by any UC authorities as to her need to appeal
the Referee’s Decision. Rather, Claimant explains that when she received the
Referee’s Decision, she “thought [she had] won the case and it was over” based on
her “lack of knowledge and terminology of the law” and her “misread[ing]” and
“misunderstand[ing] of the [D]ecision of the Referee.” (Claimant’s Brief (Br.) at
11, 13.3) It was not until Claimant received notice that she needed to repay the
overpayment that she inquired about the matter with a CareerLink office, which
informed her that her appeal had been dismissed. At that time, Claimant “realized
[her] mishap” and filed the appeal. (Id. at 13.)
       The Board responds that it properly dismissed Claimant’s appeal as untimely
under Section 502 of the Law, which is jurisdictional. According to the Board,
Claimant bears a heavy burden to justify the untimeliness of her appeal, and the

       2
          “The Court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, whether a practice or procedure of the Board was not
followed or whether the findings of fact are supported by substantial evidence in the record.”
W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth.
2006).
        3
          Claimant’s brief is not paginated so our reference to page numbers is to the physical page
of the brief.


                                                 4
explanations that she provided do not meet that heavy burden. Such explanations,
the Board argues, do not warrant the grant of nunc pro tunc relief because they do
not establish non-negligent conduct on the part of Claimant.                          See Lee v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1547 C.D. 2018, filed July
19, 2019);4 DiBello v. Unemployment Comp. Bd. of Review, 197 A.3d 819, 822 (Pa.
Cmwlth. 2018). Because Claimant’s appeal was admittedly untimely and her
explanations do not establish that the delay in filing that appeal was the result of
non-negligent conduct, the Board asserts its Order should be affirmed.5
       Section 502 of the Law provides, in relevant part, that “the parties . . . shall be
duly notified . . . of the referee’s decision, and the reasons therefor, which shall be
deemed the final decision of the board, unless an appeal is filed therefrom, within
fifteen days after the date of such decision . . . .” 43 P.S. § 822 (emphasis added).
This time limit is also set forth in the Department’s regulations. See 34 Pa. Code
§ 101.82(a) (“A party seeking to appeal a Department determination shall file an
appeal . . . on or before the 15th day after the date on which notification of the
decision of the Department was . . . mailed to [the party] at [the party’s] last known
post office address.”).        The courts have held that this 15-day time period is
mandatory. UGI Utils. v. Unemployment Comp. Bd. of Review, 776 A.2d 344, 347


       4
          Although Lee, an unreported opinion, is not a precedential decision, the Board cites it for
its persuasive value pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P.
126(b).
        5
          In the alternative, the Board argues that Claimant waived the issue by not including it in
the Statement of Questions Involved of her brief as set forth by Pennsylvania Rule of Appellate
Procedure 2116(a), Pa.R.A.P. 2116(a). This Court may, in its discretion, consider an issue not
presented in the Statement of Questions Involved if the party has provided ample notice of the
nature of the party’s argument. Izzi v. Workmen’s Comp. Appeal Bd. (Century Graphics), 654
A.2d 176, 178 n.3 (Pa. Cmwlth. 1995). Claimant’s implicit challenge to the Board’s dismissal of
her appeal as untimely can be gleaned from her brief, and the Board clearly understood those
arguments well enough as it addressed the merits thereof in its brief.


                                                 5
(Pa. Cmwlth. 2001). “If an appeal is not filed within . . . [15] days of the mailing of
the determination, it becomes final, and the Board does not have the requisite
jurisdiction to consider the matter.” Dumberth v. Unemployment Comp. Bd. of
Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003). “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.”           Id.
Accordingly, an appeal filed even one day after the appeal period expires requires
the dismissal of the appeal as untimely. Id.
      However, an exception to this mandatory rule exists that allows for an
untimely appeal to be considered nunc pro tunc, or timely, in certain limited
situations. “An 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 appellant.”
Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review, 955 A.2d
484, 487 (Pa. Cmwlth. 2008) (emphasis added). Claimant bears “[t]he burden to
establish the right to have an untimely appeal considered” and that burden is
“considered . . . a heavy one.” Hessou v. Unemployment Comp. Bd. of Review, 942
A.2d 194, 198 (Pa. Cmwlth. 2008) (emphasis added). In order to meet this burden,
the party must prove that “the administrative authority engaged in fraudulent
behavior or manifestly wrongful or negligent conduct” or that “non-negligent
conduct beyond [the party’s] control caused the delay.” Id. Nunc pro tunc relief for
non-negligent conduct is generally reserved only for those “unique and compelling
cases in which the [petitioner] has clearly established that [the petitioner] attempted
to file an appeal, but unforeseeable and unavoidable events precluded [the petitioner]
from actually doing so.” Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).



                                          6
       There is no dispute that Claimant’s appeal was untimely, and she does not
assert that the delay was due to some action by the UC authorities. Thus, in order
for her appeal to be considered nunc pro tunc she must establish that “non-negligent
conduct beyond [Claimant’s] control caused the delay.” Hessou, 942 A.2d at 198.
Claimant explains that the delay was due to her misreading and/or misunderstanding
of the Referee’s Decision and her lack of understanding of the law. While we
empathize with Claimant, this Court has previously held that a party’s misreading or
misunderstanding of a UC determination, document, or the law is not non-negligent
conduct.
       For example, in DiBello, we held that the claimant’s failure to carefully read
a determination did not warrant the grant of nunc pro tunc relief because
“[m]isreading a determination is negligent conduct.” 197 A.3d at 822. See also Guy
v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 479 C.D. 2019, filed Nov.
13, 2019) (providing that a party’s failure to read, or to carefully read, a
determination is negligent conduct that does not support the grant of nunc pro tunc
relief).6 In Lee, we held that a claimant’s misunderstanding as to the content of a
determination, which was based on his interpretation of the language, was
insufficient to warrant nunc pro tunc relief because a “misunderstanding [of] a
determination does not constitute the requisite extraordinary circumstances for a
nunc pro tunc appeal.”          Slip op. at 6.       Finally, in Finney v. Unemployment
Compensation Board of Review, 472 A.2d 752, 753-54 (Pa. Cmwlth. 1984), we held
that a claimant’s lack of understanding of the law, there the procedures for filing an
appeal, “does not excuse a party to an action from [the party’s] statutory obligation
to file an appeal within the prescribed appeal period.”

       6
        Guy, an unreported opinion, is cited for its persuasive, not precedential, value pursuant to
Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b).


                                                 7
      Based on this precedential and persuasive authority, we are unable to allow
Claimant’s explanations to satisfy the heavy burden of proving that extraordinary
circumstances caused the delay in filing her appeal to the Board. Mountain Home
Beagle Media, 955 A.2d at 487; Hessou, 942 A.2d at 198.              Further, these
explanations do not reflect that Claimant “attempted to file an appeal, but
unforeseeable and unavoidable events precluded her from actually doing so,” which
our Supreme Court has described as the type of event that generally would give rise
to the grant of nunc pro tunc relief. Criss, 781 A.2d at 1160. Therefore, Claimant’s
untimely appeal to the Board cannot be considered nunc pro tunc.
      While Claimant’s situation is unfortunate, “[a]ppeal periods . . . are
jurisdictional and may not be extended as a matter of grace or indulgence.”
Dumberth, 837 A.2d at 681. Accordingly, we cannot find that the Board erred in
dismissing Claimant’s appeal as untimely pursuant to Section 502 of the Law, and
we are constrained to affirm.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                         8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyne Walke,                            :
                       Petitioner      :
                                       :
                 v.                    :   No. 762 C.D. 2019
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                    ORDER


     NOW, April 8, 2020, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is AFFIRMED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
