            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William H. Yelland V,                         :
                            Petitioner        :
                                              :
             v.                               :   No. 2323 C.D. 2015
                                              :   Submitted: May 6, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: July 12, 2016

             Petitioner William H. Yelland V (Claimant), appearing pro se,
petitions this Court for review of an order of the Unemployment Compensation
Board of Review (Board), which affirmed a Referee’s decision dismissing
Claimant’s appeal as untimely pursuant to Section 502 of the Unemployment
Compensation Law (Law).1 For the reasons discussed below, we affirm.


      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 822. Section 502 of the Law provides, in pertinent part:
             The parties and their attorneys or other representatives of record
             and the department shall be duly notified of the time and place of a
             referee’s hearing and 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 the board acts on its own motion, to review
             the decision of the referee.
                 On April 15, 2015, Claimant filed for unemployment compensation
benefits following a suspension of his employment from Abington Heights School
District (Employer).        (Certified Record (C.R.) at 2.) On April 29, 2015, the
Scranton UC Service Center (Service Center) issued a Notice of Determination in
which Claimant was declared eligible for benefits. (C.R. at 5.) Employer appealed
the determination. (C.R. at 6.) A Referee conducted a hearing and issued an order
reversing the earlier determination, finding Claimant to be ineligible for benefits
under Section 402(e) of the Law.2 (C.R. at 10.) The order stated that the last day
Claimant could appeal the decision was July 6, 2015. (Id.) Claimant did not file
his appeal until July 9, 2015, via regular mail. (C.R. at 10.)
                 A Referee conducted a remand hearing on September 1, 2015, for the
purpose of determining whether Claimant’s appeal from the earlier Referee’s
decision was timely.         (C.R. at 17.)     During the hearing, both Claimant and
Claimant’s counsel testified that there was a miscommunication in the law office
of Claimant’s counsel as to which attorney was to handle the appeal, and such
miscommunication was not resolved until after the appeal deadline had passed.
(C.R. at 18.) By decision dated October 23, 2015, the Board dismissed Claimant’s
appeal. (C.R. at 19.) In doing so, the Board issued the following findings of fact:

                 1.    On June 18, 2015, the Referee issued a decision
                       which denied the claimant benefits.

                 2.    A copy of the Referee’s decision was mailed to the
                       claimant at his correct post office address on the
                       same date.

       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).



                                               2
              3.     The decision was accompanied by notice advising
                     that the interested parties had fifteen (15) days to
                     file a valid appeal.

              4.     The claimant promptly received the decision and
                     requested his counsel to file an appeal.

              5.     The claimant’s appeal from the Referee’s decision,
                     in order to be timely, had to have been filed on or
                     before July 6, 2015.

              6.     The claimant’s appeal was filed on July 9, 2015,
                     by regular mail because of confusion in counsel’s
                     office.

              7.     There is no evidence that the claimant was
                     misinformed or misled by the unemployment
                     compensation authorities regarding his right or the
                     necessity to appeal.

(Id.) The Board reasoned that because Section 502 of the Law provides that a
Referee’s decision shall become final unless an appeal is filed within fifteen (15)
days after the date of such decision, the Board has no jurisdiction to consider an
appeal that was filed afterwards. (Id.) As a result, the Board dismissed Claimant’s
appeal as untimely, and Claimant petitioned this Court for review.3 (Id.)
              On appeal to this Court,4 Claimant asserts that the Board erred in
dismissing his appeal as untimely because he was misinformed by private counsel


       3
         On October 28, 2015, Claimant requested reconsideration of the Board’s decision,
which the Board denied. (C.R. at 20.)
       4
         This Court’s scope of review in an unemployment compensation appeal is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
or whether necessary findings of fact are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. § 704; Han v. Unemployment Comp. Bd. of Review,
(Footnote continued on next page…)

                                              3
in regards to the timely filing of the appeal and should not be held accountable for
such a mistake.5 (C.R. at 20.)
               Section 502 of the Law provides that a party has fifteen days to appeal
a Referee’s decision to the Board. This statutory time limit is mandatory; failure to
file an appeal within the proscribed fifteen-day limit deprives the Board of
jurisdiction to hear the matter. Hessou v. Unemployment Comp. Bd. of Review,
942 A.2d 194, 198 (Pa. Cmwlth. 2008).                   Without an adequate excuse, an
appellant’s failure to adhere to this deadline mandates dismissal of the appeal. Id.
               An appeal nunc pro tunc may be allowed where the delay in filing the
appeal was caused by extraordinary circumstances involving fraud, 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). Where an appellant asserts that the late
appeal was caused by non-negligent circumstances related to appellant or his
counsel, he must show that the appeal was filed within a short time after appellant


(continued…)

42 A.3d 1155, 1156 n.5 (Pa. Cmwlth. 2012). Claimant does not challenge any of the Board’s
findings of fact as not supported by substantial evidence. Findings of fact not challenged are
conclusive on appeal. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa.
Cmwlth. 2008). Because Claimant does not challenge any of the Board’s findings, they are
binding upon this Court. Owens v. Unemployment Comp. Bd. of Review, 748 A.2d 794, 797 n.3
(Pa. Cmwlth. 2000).
       5
           Claimant also mentions an argument concerning the violation of Claimant’s equal
protection rights under the Constitutions of both the United States of America and the
Commonwealth of Pennsylvania. Claimant, however, does not develop this argument. As a
result, the issue is waived. See Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544
(Pa. Cmwlth. 1994). To the extent that Claimant argues a violation of his equal protection rights,
this Court will not address it.



                                                4
or his counsel had an opportunity to address the untimeliness, the period that
elapsed was of a short duration and the appellee was not prejudiced by the delay.
Id. at 1130.       As such, the appellant faces a heavy burden in establishing
circumstances that would justify an untimely appeal. Lopresti v. Unemployment
Comp. Bd. of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012).
               In the case at hand, Claimant has not satisfied the burden necessary to
cure the jurisdictional defect of an untimely appeal, as the miscommunication
between Claimant’s legal counsel would not qualify as a non-negligent
circumstance that would allow for an appeal nunc pro tunc. Although this Court
has held that non-negligent circumstances include situations wherein either
appellant or his counsel were physically unable to file the appeal due to unexpected
medical issues,6 failure to file through mere inadvertence does not constitute
non-negligent circumstances. Claimant, therefore, has not asserted an adequate
excuse for his late filing, and the Board was correct to dismiss his appeal as
untimely.7

       6
          See Cook, 671 A.2d. at 1131 (granting nunc pro tunc relief where Claimant was
hospitalized during appeals period and not released until one day after time for appeal expired
and, upon his release, promptly filed appeal); see also Bass v. Cmwlth, 401 A.2d 1133, 1134-35
(Pa. 1979) (holding appeal nunc pro tunc warranted when secretary for Claimant’s counsel
missed week of work due to illness during which she was unable to file the appeal, and upon her
return, took prompt corrective action.)
       7
           Claimant also argues that his late appeal should not matter because the Referee
improperly found him ineligible for benefits under Section 402(e) of the Law. (Petitioner’s Brief
at 15.) Claimant attempts to argue on appeal to this Court the merits of his underlying claim.
(Id. at 13-15.) However, this Court may not consider these arguments on appeal. See McKnight
v. Unemployment Comp. Bd. of Review, 99 A.3d 946, 949 (Pa. Cmwlth. 2014) (affirming
dismissal of claimant’s appeal, holding that “if an appeal is not timely filed within the specified
time period, the determination becomes final, and the Board does not have the requisite
jurisdiction to consider the matter.”)



                                                5
             Accordingly, the order of the Board dismissing Claimant’s appeal as
untimely, is affirmed.




                               P. KEVIN BROBSON, Judge




                                       6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William H. Yelland V,                  :
                        Petitioner     :
                                       :
           v.                          :   No. 2323 C.D. 2015
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                     ORDER


           AND NOW, this 12th day of July, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
