             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Randy A. Stewart,                              :
                             Petitioner        :
                                               :
                      v.                       :    No. 435 C.D. 2019
                                               :    Submitted: September 27, 2019
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: November 7, 2019


       Randy A. Stewart (Claimant), pro se, petitions for review of a March 19, 2019
Order of the Unemployment Compensation (UC) Board of Review (Board) that
affirmed a Referee’s Decision dismissing Claimant’s appeal as untimely pursuant to
Section 501(e) of the UC Law (Law), 43 P.S. § 821(e).1 On appeal, Claimant argues
that he had an excuse for his appeal being untimely as he was out of state for work
and unable to retrieve his mail. Based on a review of the record, we affirm the
Board’s Order.



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e) (providing that a determination is final, unless an appeal is made within 15 days after
delivery of notice).
I.     BACKGROUND
       On October 5, 2018, Claimant filed a claim for UC benefits. (Claim Record,
Certified Record (C.R.) Item 1.) On October 24, 2018, the local Service Center
issued a Notice of Determination, finding Claimant was ineligible for benefits under
Section 402(e) of the Law, 43 P.S. § 802(e).2 (Notice of Determination, C.R. Item
4.) The local Service Center determined that Claimant failed to provide information
that he lost his driver’s license, which he needed for his employment with Express
Employment Professionals, through no fault of his own or for good cause. The
Notice of Determination expressly stated Claimant had until November 8, 2018, to
file an appeal.3
       On November 15, 2018, Claimant faxed his appeal from the Notice of
Determination. (Claimant’s Petition for Appeal, C.R. Item 5.) A hearing regarding
the timeliness of the appeal was scheduled. At the hearing, Claimant stated he did
not know he had to file by November 8, but offered no other explanation or evidence.
(Hearing Transcript, C.R. Item 8.) Claimant testified as follows in response to the
Referee’s inquiries:

       R: [You’re] welcome to offer your testimony as to why it was not filed
       by the deadline of November 8th.
       C: I didn’t, I did not know the exact date[] I had to file for it, so. And
       I, you know[,] realized it was the 15th.



       2
           Section 402(e) of the Law states: “An employe shall be ineligible for compensation for
any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from
work for willful misconduct connected with his work, irrespective of whether or not such work is
‘employment’ as defined in this act . . . .” 43 P.S. § 802(e).
         3
           The Notice of Determination stated the deadline to timely appeal five times: (1) in the
top right-hand corner of page 1; (2) under Appeal Instructions on page 1; (3) in the footer of page
1; (4) in the footer of page 2; and (5) in the footer of page 3.


                                                2
      R: Anything else that you [sic] like to state only on that part of [the]
      case, the timeliness issue?
      C: Well I just wanted to have on record of [sic] about [what] my job
      advise[d] and why they never found me a job.

      R: That would not be relevant, because we’re not getting into the merits
      of the case today. The only issue before me today is the late filing of
      the Appeal.
      C: Oh, Okay.

      R: Anything that you [sic] like to state in closing on that issue?
      C: Well, I didn’t realize the date[] I had to file for. And they told me
      at any time, just call in. When I first started calling in, I [] thought I
      [would] have no problem getting it, you know.

      R: Sure. Anything else, Mr. Stewart?
      C: No.

(Id. at 2.) Following the hearing, the Referee issued a Decision, determining that
Claimant’s appeal was not timely and none of the limited exceptions for allowance
of a late appeal applied. (Referee Decision at 2, C.R. Item 9.) Thus, the Referee
dismissed the Petition for Appeal.
      Claimant then appealed the Referee’s Decision to the Board where he raised
the argument that he had an excuse for his untimely appeal as he was working in
another state and could not get his mail. (Claimant’s Petition for Appeal, C.R. Item
10.) Although Claimant appeared pro se before the Referee, he was assisted with
his appeal to the Board by Philadelphia Legal Assistance. Claimant argued that the
Referee’s Decision contained no acknowledgement of Claimant’s testimony and
indicated that the Referee asked Claimant to testify about the timeliness issue. Thus,
Claimant requested a remand hearing as the record seemed incomplete and further
requested leave to file a brief. The Board granted the request to file a brief and stated
it would review the request for a remand hearing. On March 19, 2019, the Board
issued its Order affirming the Referee’s Decision and adopting and incorporating the

                                           3
Referee’s findings and conclusions. (Board Order, C.R. Item 13.) The Board noted
that the Referee asked Claimant questions about the untimely filing, to which
Claimant responded that he did not know when to file. The Board also noted that
the Referee provided Claimant with the opportunity to provide additional
information on the timeliness issue, but Claimant declined. Thus, the Board found
the record was complete, and Claimant did not offer testimony to excuse his late
filing. Therefore, the Board affirmed the Decision of the Referee and denied
Claimant’s request for a remand.


II.    PARTIES’ ARGUMENTS
       On appeal,4 Claimant argues that he had an excuse for his untimely appeal as
he was working in another state and could not get his mail. (Claimant’s Brief (Br.)
at 2.) Claimant also argues the merits of his case, claiming he was terminated due
to a “safety reason.” (Id.)
       The Board responds that there is no dispute that Claimant untimely filed his
appeal.    (Board’s Br. at 3.)       Further, the Board argues Claimant offered no
explanation for the untimely appeal at the Referee’s hearing. The Board notes that
while Claimant later argued that he was out of town, this was not offered in the first
instance, and as a result, this argument cannot be considered by this Court on appeal.
Because Claimant did not carry the heavy burden to prove he was entitled to nunc
pro tunc relief, the Board contends its Order should be affirmed.




       4
          “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.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).


                                              4
III.   TIMELINESS OF CLAIMANT’S APPEAL
       Section 501(e) of the Law governs an appeal of a local Service Center’s
determination. It provides that:

       Unless the claimant or last employer or base-year employer of the
       claimant files an appeal with the board, from the determination
       contained in any notice required to be furnished by the department
       under section five hundred and one (a), (c) and (d), within fifteen
       calendar days after such notice was delivered to him personally, or
       was mailed to his last known post office address, and applies for a
       hearing, such determination of the department, with respect to the
       particular facts set forth in such notice, shall be final and
       compensation shall be paid or denied in accordance therewith.

43 P.S. § 821(e) (emphasis added). This statutory time frame is memorialized in the
Department of Labor and Industry’s regulations, as well.            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.”).
       “It is well-settled the statutory time limit for filing an appeal is mandatory in
the absence of fraud or a breakdown in the administrative agency.” Pa. Tpk.
Comm’n v. Unemployment Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth.
2009). We have explained that “[a]ppeal periods . . . are jurisdictional and may not
be extended as a matter of grace or indulgence; otherwise, there would be no finality
to judicial action.” Shea v. Unemployment Comp. Bd. of Review, 898 A.2d 31, 33
(Pa. Cmwlth. 2006). Therefore, the party seeking to file a late appeal bears a heavy
burden to show that one of the limited circumstances in which an untimely appeal
may be considered exists. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d
194, 198 (Pa. Cmwlth. 2008). Allowable exceptions include cases involving fraud


                                           5
or a breakdown in the administrative process, or when there is a “non-negligent
failure to file a timely appeal which was corrected within a very short time, during
which any prejudice to the other side of the controversy would necessarily be
minimal.” Bass v. Commonwealth, 401 A.2d 1133, 1135-36 (Pa. 1979). Nunc pro
tunc relief for non-negligent conduct is generally reserved for only 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).
      Claimant argues that he was unable to get to his mail by the appeal date
because his new employer kept him in Arkansas working for two weeks, contrary to
their agreement to let him go home on the weekends. Claimant raised this argument
in his appeal to the Board. Claimant did not raise this argument in the first instance
before the Referee; therefore, it is not part of the certified record. In Rothstein v.
Unemployment Compensation Board of Review, 114 A.3d 6, 10 (Pa. Cmwlth. 2015),
this Court ruled that new assertions and evidence that are not presented and made
part of the certified record cannot be considered on appeal. Therefore, this Court
cannot consider Claimant’s new argument as it was not raised before the Referee.
      Instead, we are constrained by the record and the findings made by the Referee
and subsequently adopted by the Board. At the hearing before the Referee, Claimant
said he did not know when the deadline was to file a timely appeal. This excuse is
not legally sufficient. Claimant has an “extremely heavy burden to put into the
record substantial proof of circumstances which would warrant an exception to the
usual rule that an appeal is foreclosed when it is not timely filed.”        Reed v.
Unemployment Comp. Bd. of Review, 406 A.2d 852, 853 (Pa. Cmwlth. 1979) (citing



                                          6
Unemployment Comp. Bd. of Review v. Hart, 348 A.2d 497 (Pa. Cmwlth. 1975)). In
Reed, the claimant was untimely with his appeal and testified at the hearing that he
did not read the part of the Notice of Determination which informed the claimant
when his appeal period would expire. Id. This Court determined that the claimant’s
excuse fell short of meeting the heavy burden placed upon him. Id.
      This Court followed the Reed holding in Carney v. Unemployment
Compensation Board of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018), by
stating “[a] claimant’s failure to notice the appeal deadline in a UC determination
does not constitute a non-negligent circumstance justifying an untimely appeal.”
The claimant in Carney failed to see the appeal deadline on the Notice of
Determination, and “also stated he recently became a father and was in the process
of starting a business during the appeal period.” Id. at 1287. This Court did not
accept the claimant’s excuses and determined that “[t]he pressure of life events is
likewise insufficient to excuse an untimely appeal.” Id. at 1288. Claimant’s failure
to know the deadline has likewise failed to constitute a non-negligent circumstance
to justify an untimely appeal. Accordingly, we affirm the Board’s Order dismissing
the appeal.

IV.   CONCLUSION
      Because Claimant’s appeal admittedly was not timely, and Claimant has not
provided reasons that, under our precedent, satisfy the “heavy burden” to show one
of the limited circumstances for nunc pro tunc relief exists, Hessou, 942 A.2d at 198,
we are constrained to affirm the Board’s Order dismissing Claimant’s appeal.


                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge



                                          7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Randy A. Stewart,                        :
                         Petitioner      :
                                         :
                    v.                   :   No. 435 C.D. 2019
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


     NOW, November 7, 2019, the Order of the Unemployment Compensation
Board of Review, dated March 19, 2019, is AFFIRMED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
