                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA

April Bailey,                                        :
                                Petitioner           :
                                                     :
                         v.                          :
                                                     :
Unemployment Compensation                            :
Board of Review,                                     :      No. 1520 C.D. 2018
                    Respondent                       :      Submitted: April 26, 2019

BEFORE:            HONORABLE ROBERT SIMPSON, Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: July 12, 2019

                   April Bailey (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) October 19, 2018
order denying Claimant’s request for a new hearing and affirming the Referee’s
decision dismissing Claimant’s appeal as untimely pursuant to Section 501(e) of the
UC Law (Law).1 Essentially, the issue before this Court is whether the UCBR
properly dismissed Claimant’s appeal.2 After review, we affirm.
                   On July 20, 2018, the Erie UC Service Center issued a Notice of
Determination (Determination) denying Claimant UC benefits pursuant to Section



          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e).
          Claimant presented two issues in her brief to this Court: (1) whether the UCBR “did not
          2

take into consideration of [sic] the unemployment benefits will not be fought by [Claimant’s
employer;]” and (2) whether the UCBR “took into consideration that the [Claimant] went back to
work for [Claimant’s employer’s parent company] and still [has] a great rapport to date.” Claimant
Br. at 6. Because the issues relate solely to the merits of her case and the merits were not addressed
by the Referee or the UCBR, they are not properly before this Court.
402(e) of the Law.3 The Determination stated that the final date to appeal therefrom
was August 6, 2018. Claimant filed an appeal on August 9, 2018.
               The Referee held a hearing on September 7, 2018 on the issue of
whether Claimant filed a timely and valid appeal from the Determination. Neither
Claimant nor her employer appeared at the hearing. On that same date, the Referee
dismissed Claimant’s appeal under Section 501(e) of the Law for untimeliness.
              Claimant appealed to the UCBR.4 On October 19, 2018, the Board
issued an order denying Claimant’s request for a new hearing,5 and affirmed the
Referee’s Decision. Claimant requested the UCBR to reconsider, which the UCBR
denied. Claimant appealed to this Court.6




       3
          43 P.S. § 802(e) (relating to willful misconduct).
       4
          In her appeal to the UCBR, Claimant contended she arrived to the Referee hearing seven
minutes late, and requested a new hearing which the UCBR denied. However, Claimant did not
raise the UCBR’s denial of her hearing request as an issue in her appeal to this Court. See Petition
for Review, Claimant Br. at 6.
        5
          Section 101.24(a) of the UCBR’s Regulations provides:
              If a party who did not attend a scheduled hearing subsequently gives
              written notice, which is received by the tribunal prior to the release of
              a decision, and it is determined by the tribunal that his failure to
              attend the hearing was for reasons which constitute ‘proper cause,’ the
              case shall be reopened. Requests for reopening, whether made to the
              referee or [UCBR], shall be in writing; shall give the reasons
              believed to constitute ‘proper cause’ for not appearing; and they
              shall be delivered or mailed . . . to the [UCBR.]
34 Pa. Code § 101.24(a) (emphasis added). Claimant requested the UCBR to grant her a new
hearing, but did not provide any explanation for missing the hearing. Absent evidence of “proper
cause,” the UCBR was justified in denying Claimant’s request to reopen the record. 34 Pa. Code §
101.24(a).
       6
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 2
               Initially, Section 501(e) of the Law provides:
             Unless the claimant or last employer or base-year employer
             of the claimant files an appeal with the [UCBR], from the
             determination contained in any notice required to be
             furnished by the [Department of Labor and Industry
             (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 [D]epartment, 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).

               Here, Claimant failed to appear at the scheduled hearing, and did not
present evidence justifying the late filing of her appeal.
               The law is well established:

               Failure to file a timely appeal as required by Section 501(e)
               of the Law is a jurisdictional defect. The time limit for a
               statutory appeal is mandatory; it may not be extended as a
               matter of grace or indulgence. To justify an exception to
               the appeal deadline, [a c]laimant must demonstrate that
               h[er] delay resulted from extraordinary circumstances
               involving fraud, a breakdown in the administrative
               process, or non-negligent circumstances relating to [the
               c]laimant h[er]self. This is an extremely heavy burden.

Carney v. Unemployment Comp. Bd. of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth.
2018) (emphasis added; citations omitted). Because the certified record contains no
evidence demonstrating that Claimant’s untimely filing resulted from “extraordinary
circumstances involving fraud, a breakdown in the administrative process, or non-
negligent circumstances[,]”7 Claimant did not meet her burden, and the UCBR
properly affirmed the Referee’s Decision. Id.

       7
         In fact, Claimant never explained the reasons for the late filing of her Determination appeal
in any filing to the UCBR or this Court, nor did Claimant assert that she could explain such at a
hearing.
                                                  3
For all of the above reasons, the UCBR’s decision is affirmed.




                         ___________________________
                         ANNE E. COVEY, Judge




                             4
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


April Bailey,                             :
                        Petitioner        :
                                          :
                  v.                      :
                                          :
Unemployment Compensation                 :
Board of Review,                          :     No. 1520 C.D. 2018
                    Respondent            :


                                     ORDER

            AND NOW, this 12th day of July, 2019, the Unemployment
Compensation Board of Review’s October 19, 2018 order is affirmed.



                                     ___________________________
                                     ANNE E. COVEY, Judge
