            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynne A. Percinsky,                            :
                              Petitioner       :
                                               :
                 v.                            :   No. 409 C.D. 2015
                                               :   Submitted: July 31, 2015
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :

BEFORE:          HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: September 15, 2015

                 Lynne A. Percinsky (Claimant), representing herself on appeal,
petitions for review of an order of the Unemployment Compensation Board of
Review (Board) that dismissed her appeal from a referee’s decision as untimely
under Section 502 of the Unemployment Compensation Law (Law).1                       In its
decision, the Board noted the referee’s decision denied Claimant’s application for
unemployment compensation (UC) benefits. The Board further found the referee’s
decision confused Claimant, who had multiple UC proceedings pending at the
same time. However, the Board found no evidence indicating the UC authorities
misled or misinformed Claimant regarding her right to appeal or her need to
appeal. Given the unique and confusing circumstances confronting Claimant, we
reverse and remand for a decision on the merits of Claimant’s appeal.

        1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§822.
                                 I. Background
             In his July 2014 decision, the referee noted Claimant worked for
Crown American Associates (Employer) as a waitress at the rate of $3.25 per hour
plus tips.   Claimant worked approximately 30 to 40 hours per week from
September 2006 until January 2012.


             Claimant filed an application for UC benefits in January 2011.
During the period beginning on April 2, 2011 and ending on July 30, 2011,
Claimant received $5,961 in UC benefits.


             However, three years later, in early June 2014, after conducting an
audit that revealed a difference in the amount of earnings reported by Claimant and
the amount of her earnings reported by Employer, the Harrisburg Overflow Center
(Overflow Center) sent Claimant a notice of an alleged overpayment of benefits
based on unreported earnings. See UCC-990 Overpayment Information, Certified
Record (C.R.), Item No. 3. Claimant did not agree with the overpayment. Id. To
that end, Claimant asserted she never falsified anything, and Employer must have
included her vacation and holiday pay without informing her. Id.


             Thereafter, a UC representative orally interviewed Claimant regarding
the alleged overpayment. See Record of Oral Interview, C.R., Item No. 4. The UC
representative noted the following (with emphasis added):

             This is a fault/fraud ovp as the clmt was working while
             she was reporting some earnings, all of the weeks except
             for one had earnings reported below her partial benefit
             credit, regardless of her actual earnings.



                                        2
             The clmt’s assertion that the differential is actually the
             employer’s fault due to fluctuating pay rates and holiday
             pay is hardly credible.

             There is no indication that clmt contacted the service
             center to report the discrepancies which were usually on
             the order of two hundred plus dollars per week.

             A UC990 was sent to the clmt who responded by
             attaching a Referee’s Decision on a similar issue. In that
             case, the Referee changed the ovp to non-fault, no PV.

             I do not believe this was a matter of simple carelessness
             or the clmt’s inability to calculate hours and pay rates
             properly. I believe that the clmt deliberately reported
             earnings below her [partial benefit credit] in order to
             receive the maximum amount of unemployment
             compensation.

Id.


             Consequently, the Overflow Center issued a Notice of Determination
– Overpayment of Benefit. See C.R., Item No. 5. The notice of determination
indicated Claimant’s weekly benefit rate of $351 and a partial benefit credit (PBC)
of $141. A claimant’s benefits will not be decreased where the claimant performs
part-time work and her earnings do not exceed her PBC.              See Lopata v.
Unemployment Comp. Bd. of Review, 484 A.2d 219 (Pa. Cmwlth. 1984). Here,
the UC authorities found, with the exception of one week, Claimant’s reported
weekly earnings were below her PBC while her actual weekly earnings exceeded
her PBC. See Notice of Determination at 3. The notice further indicated Claimant
knowingly failed to report all earnings. Id. at 4. Therefore, the Overflow Center
found Claimant failed to file a valid claim for UC benefits. Id.




                                         3
               As such, the Overflow Center disapproved Claimant for UC benefits
under Section 401 of the Law2 (qualifications required to secure compensation) in
connection with Section 4(u) of the Law3 (whether claimant meets definition of
“unemployed”); Section 404(d)(1) of the Law4 (where weekly earnings exceed
PBC, claimant should receive weekly benefit rate less earnings exceeding the
PBC); and, Section 401(c) of the Law5 (invalid application for benefits; whether
the claimant knowingly made false statements or failure to disclose material facts).


               In sum, the Overflow Center determined Claimant underreported the
amount of her earnings and issued a notice of determination finding Claimant
ineligible for benefits during the period from April 2, 2011 through July 30, 2011.
The Overflow Center also issued a notice of a fault overpayment under Section
804(a) of the Law, 43 P.S. §874(a), in the amount of $5,961. In addition, the
Overflow Center imposed a 20-week disqualification penalty under Section 801(b)
of the Law, 43 P.S. §871(b). Claimant timely appealed the notice.


               Following a hearing, the referee issued a decision identifying the
following issues:

               Is [Claimant] unemployed during claim weeks ending
               April 2, 2011 through July 30, 2011? Did [Claimant] file
               her bi-weekly claims in a proper manner reflecting
      2
          43 P.S. §801.

      3
          43 P.S. §753(u).

      4
          43 P.S. §804(d)(1).

      5
          43 P.S. §801(c).



                                          4
             accurate earnings for each Sunday to Saturday claim
             week in the bi-weekly reporting period? Did [Claimant]
             receive UC benefits to which she was not entitled and, if
             so, was a fault overpayment properly established? If a
             fault overpayment, did [Claimant] knowingly fail to
             disclose proper earnings to be assessed penalty weeks in
             addition to the fault overpayment?

Referee’s Dec., 7/24/14, at 2.


             Because Employer failed to appear at the hearing to authenticate the
quality assurance report it filed with the earnings report submitted to the UC
authorities, the referee, unlike the Overflow Center, chose not to adjudicate the
matter under Sections 401, 4(u) and 404(d)(1) of the Law. Rather, the referee
chose to proceed solely under Section 401(c) of the Law (invalid application;
knowingly false statements or material omissions).


             Ultimately, the referee did not find Claimant’s testimony credible. To
that end, the referee stated (with emphasis added):

             The Referee does not find [Claimant’s] testimony
             competent and credible that she accurately reported her
             earnings which included her declared cash tips to
             [Employer], the credit card tips paid out on a daily basis
             by [Employer] in addition to her wage at $3.25 per hour
             times the number of hours she worked that week. This
             lack of credibility is based upon the fact that [Claimant’s]
             initial testimony was that she was working between 30
             and 40 hours per week with [Employer]. Even with
             limited tips, such hours would range [Claimant’s] earning
             from a low of approximately $210 to a high of $290 per
             week. …

                                       ****



                                          5
             While the Referee cannot draw the same conclusion that
             the Service Center representative had, that he believed
             [Claimant] was not reporting her tips, the Referee can
             draw the conclusion that [Claimant] was substantially
             underreporting her earnings or failed to report the three
             components of her earnings for the claim weeks filed,
             which included the $3.25 per hour times the number of
             hours worked that week, the declared cash tips and the
             credit tips.

Referee’s Dec. at 2-3. In ruling Claimant ineligible for benefits under Section
401(c) as a result of an invalid application based on knowingly false statements,
the referee observed (with emphasis added):

             [Claimant] admits that [Employer] provided her a pay
             stub, albeit not a paycheck, on a weekly basis where [it]
             provide[d] [Claimant] an opportunity to reconcile her
             records to those maintained by [Employer]. At the time
             of hearing, [Claimant] did not disclose that she was
             disputing the bi-weekly earnings on her pay stubs to
             indicate the earnings were substantially over-reported in
             either hours worked, her declared cash tips or even the
             credit card tips [Employer] paid out to [Claimant] at the
             end of each of her work shifts. Therefore, [Claimant]
             failed to properly file for her biweekly benefits to be
             ineligible under Section 401(c) for claim weeks ending
             April 2, 2011 through July 30, 2011.

Referee’s Dec. at 3.


             With respect to the fault overpayment, the referee observed that
Claimant’s counsel relied on the fraud overpayment provisions of the federal
Emergency Unemployment Compensation Act of 20086 (EUC Act) rather than the

      6
        Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, Stat. 2323,
§§4001-07, 26 U.S.C. 3304 note. In Gnipp v. Unemployment Compensation Board of Review,
(Footnote continued on next page…)

                                            6
overpayment provisions in Section 804 of the Law, 43 P.S. §874, which are
applicable here. To that end, the referee reasoned (with emphasis added):

              For the record, Claimant[’s] Counsel cites the [EUC Act]
              overpayment language which the fraud overpayment
              language of the EUC mirrors the state [UC] penalty week
              language. Whereas, the regular [UC] fault overpayment
              language does not mirror our penalty week language
              which imposes an additional element requiring the
              claimant knowingly failed to disclose accurate earnings.
              In this instance, the Referee’s assessment of [Claimant’s]
              understanding of how she was paid by [Employer] is that
              it was understood by [Claimant] that she received $3.25
              for every hour she worked, declared cash tips plus credit
              card tips from customers as her earnings which would
              have been accounted for by [Employer] on a biweekly
              basis. [Claimant’s] reported earnings to the [UC] system
              are a substantial misrepresentation by [Claimant] on a
              consistent basis. Since it is a material representation of
              her earnings for each claim week at issue, in the opinion
              of the Referee, a fault overpayment is warranted.
              Therefore, a fault overpayment in the amount of $5,961
              is established.

Referee’s Dec. at 3.


              However, the referee dismissed the 20-week disqualification penalty
imposed by the Overflow Center under Section 801(b) of the Law. In so doing, the
referee reasoned (with emphasis added):

(continued…)

82 A.3d 522 (Pa. Cmwlth. 2013), we noted, the state UC statute, unlike the federal EUC Act,
expressly allows the UC authorities to determine whether an overpayment of regular UC benefits
is either fault-based or non-fault, and thus beyond recoupment. The EUC Act is worded
differently and requires repayment of an overpayment unless the claimant obtains a waiver or
successfully appeals. Gnipp.



                                              7
            Section 801(b) of the Law provides, in part, that whoever
            makes a false statement knowing it to be false, or
            knowingly fails to disclose a material fact to obtain or
            increase any compensation or other payment under this
            Act … may be disqualified in addition to such week or
            weeks of improper payments for a penalty period of two
            weeks and for not more than one additional week for
            each such week of improper payment.

            Based upon the record developed, the Referee is unable
            to conclude that [Claimant] knowingly underreported her
            earnings for the claim weeks at issue from April 2, 2011
            to July 30, 2011. Therefore, the penalty weeks assessed
            are dismissed.

Referee’s Dec. at 3.


            The referee’s decision included a mailing date of July 24, 2014, and it
indicated the “final date to appeal” as August 8, 2014. See Referee’s Dec. at 1.
The referee’s decision also indicated that Claimant’s attorney attended the July 14,
2014 hearing. Id. Claimant, however, filed her uncounseled appeal by U.S. mail
on November 17, 2014, as indicated by the postmark.


            In her appeal, Claimant stated (with emphasis added):

            I did not know that the July 2014 hearing and October
            2014 hearings were different. If for any reason I thought
            losted [sic] my hearing in July; I would have appealed.
            Atty Barbin is no longer involved in my [UC] claims …
            Please allow … case to reopen ….

            I am writing this for the Referee to relook at my claim
            dated July 14th 2014. I was unaware that I was found to
            pay the amount. I am now getting letter from the IRS
            stating that amount will be taken out of my return. … I
            have been talking to Harrisburg since Oct 2014 after my
            second referee hearing on October 6th. When I saw the

                                         8
            word reversed I thought that the decision was in my
            favor. If it was not for Harrisburg explaining to me that
            the July and October claims are two different claim [sic]
            I would have never known I was at fault. They advised
            me that I contact the referee office to file an untimely
            appeal since it is out of their jurisdiction. They read all
            my information and stated that usually when an employer
            does not appear they usually go in favor of the claimant.
            I would appreciate if my claim would be re-examined for
            July 14th 2104 [sic]. I do not understand all of the acts
            and codes and when I got the decisions for both referee
            hearings I supposed I was non fault and that my honestly
            [sic] was honored.

                   I did not falsify any information and have only told
            the truth through both hearings. I feel that mathematical
            errors could have been made at Holiday Inn. Each week
            a minimum wage hostess would record the weekly
            earnings and with being said numbers could have been
            wrong. I also filed over the phone with an automated
            system not a person. I would like all this to be
            considered for that claim instead of all blame on myself.
            … I would like the opportunity to straighten this out and
            have that claim reexamined by the referee office because
            I am 28 years old and this happened almost 4 years ago
            and I do not want it to affect my life like it is at this time.
            If any way I feel like I deserved for this outcome or feel
            this decision is correct on all the whole amount of money
            I would not be writing this letter to reexamine my claim
            case.

Claimant’s Pet. for Appeal, 11/18/14; C.R. at Item No. 14.


            In her request for an additional hearing, Claimant essentially repeated
her position. See Claimant’s Request for Additional Hr’g, 12/4/14; C.R. at 16.




                                          9
             In response, the Board directed the referee to schedule a hearing to
provide Claimant an opportunity to testify regarding whether her appeal should be
accepted as timely filed. See Board’s Remand Memo, 12/10/14; C.R. Item No. 17.


             During a subsequent telephone hearing, Claimant testified (with
emphasis added):

             I did not know that the Court Hearing from July to
             October was different. That’s my fault. I did not see the
             different days so when I received something from the
             IRS I called Harrisburg; they were very kind to me.
             They weren’t sure as well but they looked into it more
             and more, got back to me several times and explained to
             me that the July 24th and the October were two – for two
             different time frames. So when I got my letter in the mail
             from my July 14th [inaudible] to the July 24th I thought I
             won that case so I thought it was the same case.

N.T., 1/5/15, at 3.

             Following the hearing, the Board entered a decision and order
dismissing Claimant’s appeal as untimely under Section 502 of the Law; 43 P.S.
§822. In its decision, the Board found the following facts:

             1. [Claimant] filed an application for [UC] benefits on
             January 2, 2011.

             2. [Claimant’s] request was denied by the Department of
             Labor and Industry (Department).

             3. [Claimant] filed an appeal from this determination.

             4. Following a hearing on the merits, the Referee issued a
             decision which denied [Claimant] benefits and assessed a
             fault overpayment.



                                        10
            5. A copy of the Referee’s decision was mailed to
            [Claimant] at her last known post office address on the
            same date.

            6. The decision was accompanied by notice advising that
            the interested parties had fifteen [15] days in which to
            file a valid appeal.

            7. [Claimant] received a copy of the Referee’s Decision.

            8. [Claimant’s] appeal from the referee’s decision, in
            order to be timely, had to have been filed on or before
            August 8, 2014.

            9. [Claimant] was confused by the Referee’s order and
            thought that it concerned her claim for different benefit
            weeks.

            10. [Claimant’s] appeal was filed on November 17, 2014,
            by U.S. mail, as evidenced by the postmark.

            11. There was no evidence that [Claimant] was
            misinformed or misled by the [UC] authorities regarding
            her right or the necessity to appeal.

Bd. Dec., 1/23/15, Findings of Fact (F.F.) Nos. 1-11 (emphasis added).


            Finding no evidence that the UC authorities misled or misinformed
Claimant regarding her right to appeal or the necessity to appeal, the Board
dismissed Claimant’s appeal under Section 502 of the Law. The Board reasoned:

            The provisions of this section of the Law are mandatory,
            and the Board has no jurisdiction to accept an appeal
            filed after the expiration of the statutory appeal period
            absent limited exceptions not relevant herein. The filing
            of the late appeal was not caused by fraud or its
            equivalent by the administrative authorities, a breakdown
            in the appellate system, or by non-negligent conduct.



                                       11
             Therefore, [Claimant’s] appeal from the Referee’s
             decision must be dismissed.

Bd. Op., 1/13/15, at 2. Claimant petitions for review.7


                                     II. Discussion
                              A. 15-Day Appeal Period
             Pursuant to Section 502 of the Law, a party has 15 days to appeal a
decision furnished by the referee.          43 P.S. §822; see also Polakovic v.
Unemployment Comp. Bd. of Review, 531 A.2d 852 (Pa. Cmwlth. 1987) (holding
the 15-day statutory time limit for appeals from a referee’s decision is mandatory).
As untimeliness is a jurisdictional defect, courts cannot extend the time for taking
an appeal as a matter of grace or mere indulgence. Sofronski v. Civil Serv.
Comm’n, City of Phila., 695 A.2d 921 (Pa. Cmwlth. 1997). However, the Board
can consider an untimely appeal in limited circumstances.                    Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). In such
cases, the party seeking a late appeal must justify the delay in filing the appeal. Id.
To do this, the party must show her untimely appeal resulted from extraordinary
circumstances involving fraud or a breakdown in the administrative or judicial
process. Id. In addition, the party may be entitled to an untimely appeal where she
can show that non-negligent circumstances beyond the party’s control caused the
delay. Id. (citing Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)).



      7
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Wise v. Unemployment Comp. Bd. of Review, 111 A.3d
1256 (Pa. Cmwlth. 2015).



                                           12
                               B. Argument/Analysis
             On appeal, Claimant’s “Statement of Questions Involved” raises
issues pertaining to the merits of the referee’s decisions following the July 2014
and October 2014 hearings on separate claims. More specifically, Claimant sets
forth the following three issues:

             1. Whether the [Board] erred in finding [Claimant]
             wrongfully gave her earnings and wages in referee
             hearing from July 14, 2014 and then did not in referee
             hearing held on May 15th and October 6th 2014.

             2. Whether the referee should have been the same for two
             different claim cases and the referee for the untimely
             appeal?

             3. Whether there was absolute proof that [Claimant]
             falsely falsified any earnings or wages in a knowingly
             way.

Pet’r’s Br. at 6 (Statement of Questions Involved).


             However, Claimant represented in her brief that “[s]he went to
hearing in May 2014 with [E]mployer present and won the case.” Pet’r’s Br. at 8.
Thereafter, when Claimant received the July 2014 order in the mail she thought she
also won that case. Id. Claimant also believed that “claim credit for the weeks
was denied” meant that the UC authorities lost the case. Id. When Claimant
received another notice in September, she thought the UC authorities appealed the
July 2014 decision. Id. Further, Claimant went to court in October and “got the
decision for that order that she won.” Id. When Claimant later received a letter
from the Internal Revenue Service stating that her tax refund would be withheld,
she called the UC authorities and discovered that the July 2014 and October 2014


                                        13
orders were for different cases. Pet’r’s Br. at 8-9. The UC authorities advised her
to file a late appeal, which she did. Pet’r’s Br. at 9.


             As discussed above, the Board found that the referee’s July 2014
order confused Claimant and that she believed it involved different benefit weeks.
F.F. No. 9. Nonetheless, the Board further found: “There is no evidence that
[Claimant] was misinformed by the [UC] authorities regarding her right or the
necessity to appeal.” F.F. No. 11.


             Although the UC authorities may not have misinformed Claimant of
her right to appeal the referee’s July 2014 order, we view Claimant’s confusion as
much more significant. Claimant indicates she prevailed in another overpayment
proceeding wherein a different referee ultimately found her testimony and earnings
reports more credible than those provided by Employer. See Pet’r’s Br. at 13. As
such, Claimant apparently prevailed before one referee and lost before another
referee in nearly simultaneous proceedings.


             Further, based on our review of the record, we view the referee’s July
2014 decision to be very complicated, technical, and somewhat confusing. As to
the confusing part, the order does not explicitly state that the referee determined
Claimant ineligible for benefits under Section 401(c) of the Law (invalid
application based on false statements or omission of material facts). Further, the
next sentence of the order states: “Claim credit for compensable weeks ending
April 2, 2011 through July 30, 2011 is DENIED.” This sentence does not clearly
indicate it is adverse to Claimant. See Referee’s Order, 7/24/14.



                                           14
              Here, several years passed before Claimant’s receipt of benefits was
challenged.    This delay was beyond Claimant’s control.         Further, Claimant
apparently prevailed in nearly simultaneous proceedings where a referee found her
more credible than Employer regarding her past earnings. The contemporaneous
inconsistent determinations by different referees were beyond Claimant’s control.
In addition to this confusing background, we conclude that the language of the
referee’s July 2014 decision contributed to extraordinary circumstances
approaching a breakdown of the administrative process. The language in the July
2014 decision was beyond Claimant’s control. At the very least, the delay in filing
the appeal to the Board was caused by non-negligent circumstances beyond
Claimant’s control. As such, we believe Claimant is entitled to a late appeal to the
Board. Bass.


                    Accordingly, we reverse the order of the Board and remand to
the Board for disposition of Claimant’s appeal on the merits.




                                      ROBERT SIMPSON, Judge




                                        15
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynne A. Percinsky,                       :
                           Petitioner     :
                                          :
             v.                           :   No. 409 C.D. 2015
                                          :
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :


                                        ORDER

             AND NOW, this 15th day of September, 2015, the order of the
Unemployment Compensation Board of Review is REVERSED and this case is
REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.




                                         ROBERT SIMPSON, Judge
