             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Faye Brown,                                      :
                       Petitioner                :
                                                 :
                v.                               :
                                                 :
Unemployment Compensation                        :
Board of Review,                                 :   No. 9 C.D. 2017
                 Respondent                      :   Submitted: May 12, 2017


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE1                                   FILED: November 30, 2017

                Faye Brown (Claimant) petitions this Court for review of a December
9, 2016 decision of the Unemployment Compensation Board of Review (Board)
denying her unemployment compensation benefits under Section 502 of the
Unemployment Compensation Law (Law).2 Upon review, we vacate and remand.

                Claimant worked for Fiserv (Employer) from August 2, 1976 until
March 1, 2016. She filed for unemployment compensation benefits on March 6,

       1
         Currently, there is a vacancy among the commissioned judges of this Court. Pursuant to
our opinion circulation rules, all commissioned judges voted on the opinion and a tie vote resulted.
Therefore, this opinion is filed pursuant to Section 256(b) of the Internal Operating Procedures of
the Commonwealth Court, 210 Pa. Code § 69.256(b).

       2
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
822.
2016, citing “lack of work/laid off” as the reason for separation. (Certified Record
(C.R.), Item 2, Internet Initial Claims at 2.) On July 11, the Unemployment
Compensation Service Center (Service Center) issued a Notice of Determination
denying Claimant benefits under Section 402(h) of the Law. 3 The final date to
appeal was July 26, 2016. Claimant filed her appeal on July 28, 2016. Following a
hearing held August 16, 2016, the Referee issued a decision on August 23, 2016,
dismissing Claimant’s appeal as untimely. The Referee’s order gave a final appeal
date of September 7, 2016. Claimant filed her appeal to the Referee’s decision on
September 27, 2016. A hearing was held on November 6, 2016, solely on the issue
of the timeliness of Claimant’s second appeal. Following this hearing, the Board
issued a decision and order dismissing the Claimant’s appeal as untimely under
Section 502 of the Law.4 This appeal followed.5

                                       DISCUSSION

                 Claimant argues her appeal should not be dismissed as untimely,
because the delay in filing was due to non-negligent circumstances beyond her
control. More specifically, Claimant’s son is mentally ill and her mother suffered a
stroke in August 2016. Claimant contends these events made her personal life
overwhelming and resulted in her appeal being filed late.


       3
          Section 402(h) of the Law provides generally that persons who are self-employed are
ineligible to receive unemployment compensation benefits. 43 P.S. § 802(h).

       4
           43 P.S. § 822.

       5
         This Court’s review is limited to a determination of whether constitutional rights were
violated, errors of law were committed, or findings of fact were not supported by substantial
evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 n.2 (Pa.
Cmwlth. 2010).
                                               2
             The Board responds that Claimant bears a heavy burden to show the
untimeliness of her appeal should be excused. The Board argues that the medical
issues of third parties, here Claimant’s son and mother, are not sufficient to excuse
a twenty-day delay.     Additionally, the Board contends Claimant presented no
evidence as to how the medical ailments of her son and mother affected her ability
to file a timely appeal. As a result, the Board asserts Claimant has not met the burden
required for a nunc pro tunc appeal.

             Section 502 of the Law provides an appeal of the referee’s decision
must be filed within fifteen days after the date of such decision. 43 P.S. § 822. A
timely appeal is a jurisdictional prerequisite.         DiIenno v. Unemployment
Compensation Board of Review, 429 A.2d 1288 (Pa. Cmwlth. 1981). The statutory
time limit for filing an appeal is mandatory in the absence of fraud or manifestly
wrongful or negligent conduct by an administrative agency. Das v. Unemployment
Compensation Board of Review, 399 A.2d 816 (Pa. Cmwlth. 1979). However, if “an
appeal is not timely because of non-negligent circumstances… and the appeal is filed
within a short time after the appellant or his counsel learns of and has an opportunity
to address the untimeliness, and the time period which elapses is of very short
duration, and the appellee is not prejudiced by the delay, the court may allow an
appeal nunc pro tunc.” Cook v. Unemployment Compensation Board of Review, 671
A.2d 1130, 1131 (Pa. 1996). A petitioner in an appeal nunc pro tunc must proceed
with reasonable diligence once she knows of the necessity to take action. Stanton v.
Department of Transportation, Bureau of Driver Licensing, 623 A.2d 925 (Pa.
Cmwlth. 1993).




                                          3
             At the November 7, 2016 hearing, Claimant testified as follows.
Claimant described her personal life as “completely overwhelming” due to her adult
son’s mental illness and her mother’s recovery from a massive stroke. (C.R., Item
17, Transcript of Testimony (T.T.) at 7.) Claimant admitted she didn’t understand
“the process” very well and she “probably didn’t read the documents as thoroughly
as [she] should have.” Id. The late filing was not due to negligence on the part of
the state, it was Claimant’s “inability to be as attentive” as she should have been. Id.
Claimant didn’t have “any other good excuse, other than [her] personal life.” Id. at
8. Once Claimant understood the process and consequences, she began to fax and
mail her appeal documents. Id. at 9.

             Lack of familiarity with Board regulations and procedure does not
excuse an untimely filing.      Hessou v. Unemployment Compensation Board of
Review, 942 A.2d 194 (Pa. Cmwlth. 2008). Illness on the part of a claimant or
claimant’s counsel may, however. Cook; see also Bass v. Commonwealth, 401 A.2d
1133 (Pa. 1979). In an unreported opinion, a three-judge panel of this Court
concluded the illness of a claimant’s mother was not a sufficiently non-negligent
circumstance that nunc pro tunc relief was appropriate. Joe v. Unemployment
Compensation Board of Review, (Pa. Cmwlth., No. 1811 C.D. 2010, filed March 21,
2011), 2011 WL 10846448. In a subsequent, also unreported, decision, this Court
similarly concluded the claimant had not established non-negligent reasons for her
appeal. The Court noted, however, it saw no reason to conclude “that the sudden
illness of a close family member of an appellant may not be considered a non-
negligent circumstance allowing for a nunc pro tunc appeal in the proper case.”




                                           4
Douglas v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 1903
C.D. 2013, filed July 16, 2014), slip op. at 7, n.3, 2014 WL 3532960 at *4, n.3.6

             Despite the heavy burden which an aggrieved claimant bears, nunc pro
tunc relief from an untimely appeal is equitable in nature. See Criss v. Wise, 781
A.2d 1156, 1159 (Pa. 2001)(“Even where a party has filed an untimely notice of
appeal, however, appellate courts may grant a party equitable relief in the form of
an appeal nunc pro tunc in certain extraordinary circumstances.”)(emphasis added);
see also Bass. The adage “aequitas prima est – where equity applies, equity is
supreme” – applies in these circumstances. As such, inferences in favor of granting
nunc pro tunc relief must be carefully and exactingly considered.

             In this case, Claimant faced the serious medical circumstances
surrounding both her mother and her son. In August, her mother suffered a massive
stroke. At the same time, her son’s mental health, a condition apparently long
standing and worsening at that time, was at issue for Claimant, ultimately leading to
his November 2016 involuntary commitment hearing. In rejecting Claimant’s
argument, the Board referred to her situation as “[n]ormal strains and pressures of
daily life” which were insufficient to establish “good cause for a late appeal.” C.R.,
Item 18, Board’s Decision and Order at 2. This finding, however, does no justice to
our suggestion in Douglas that “the sudden illness of a close family member” may
be considered a non-negligent circumstance “allowing for a nunc pro tunc appeal in
the proper case.” Douglas, slip op. at 7, n.3, 2014 WL 3532960 at *4, n.3. For
Claimant, the illnesses affecting two family members seem anything but “normal

      6
         Unreported memorandum opinions of this Court may be cited “for [their] persuasive
value, but not as binding precedent.” Section 414, Commonwealth Court Internal Operating
Procedures. 210 Pa.Code § 69.414.
                                            5
strains and pressures of daily life,” and the Board’s finding of same is not supported
by substantial evidence. As such, and against this backdrop, we cannot agree that
the Board properly considered the family health conditions Claimant faced.

             For these reasons, we vacate and remand this matter to the Board to
consider whether these conditions constitute the “proper case” for which to allow
nunc pro tunc relief. Douglas.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                          6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Faye Brown,                           :
                  Petitioner          :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 9 C.D. 2017
                 Respondent           :


                                  ORDER


            AND NOW, this 30th day of November, 2017, the December 9, 2016
Order of the Unemployment Compensation Board of Review is vacated and this
matter is remanded for proceedings consistent with this appeal. Jurisdiction is
relinquished.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
