           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kiara E. Calverley,                         :
                      Petitioner            :
                                            :
              v.                            : No. 736 C.D. 2017
                                            : SUBMITTED: January 19, 2018
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE CEISLER                                  FILED: February 12, 2018


       Kiara E. Calverley (Claimant) petitions for review, pro se, of the April 11,

2017 order of the Unemployment Compensation Board of Review (Board) affirming

the decision of a referee to dismiss Claimant’s appeal as untimely. We affirm.

       Claimant filed an application for unemployment compensation benefits on

December 11, 2016.         The local service center determined that Claimant was

financially ineligible for benefits under section 404(c) of the Unemployment

Compensation Law (Law)1 because her employer, Sky Financial Services, Inc.



1
  Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(c). Section
404(c) of the Law provides that “[n]otwithstanding any other provision of this act, any employe
with less than sixteen (16) ‘credit weeks’ during the employe’s base year shall be ineligible to
receive any amount of compensation.” 43 P.S. § 804(c).
(Employer), had not reported Claimant’s wages to the Commonwealth of

Pennsylvania. R. Item Nos. 1-2; N.T., 2/2/17, at 5. On December 20, 2016, the local

service center mailed a Notice of Financial Determination (Notice) to Claimant’s

last known postal address. Ref.’s Findings of Fact, Nos. 1-2.2 The Notice was not

returned by the United States Postal Service as “undeliverable.” Id., No. 3. The

Notice informed Claimant that she had until January 4, 2017 to file an appeal from

the Notice. Id., Nos. 4-5. Claimant did not file an appeal on or before January 4,

2017. Id., No. 6.

       On January 9, 2017, Claimant appealed to the referee. Id. The referee held

an evidentiary hearing on February 2, 2017. Claimant participated in the hearing by

telephone and was the only witness to testify. Employer did not attend the hearing.

See N.T., 2/2/17, at 1.

       At the hearing, Claimant testified that she received the Notice before January

4, 2017 but did not file an appeal before that date. Id. at 5-6. Claimant stated that

she was unsure if she needed to file an appeal because she was still able to file her

bi-weekly wage claims. Id. at 6. Claimant further testified that after multiple,

unsuccessful attempts to contact the Department of Labor and Industry (Department)




2
  The Board adopted and incorporated the referee’s findings of fact and conclusions of law in their
entirety. See Bd.’s Order, 4/11/17, at 1.

                                                2
by phone to ask whether she should file an appeal, she decided to file an appeal on

January 9, 2017 “just in case.” Id.

         On February 3, 2017, the referee dismissed Claimant’s appeal as untimely

under section 501(e) of the Law, 43 P.S. § 821(e).3 The referee found that Claimant

was neither misinformed nor misled regarding her right of appeal or her need to file

a timely appeal. Ref.’s Findings of Fact, No. 7. The referee also found that

Claimant’s filing of a late appeal was not the result of fraud, a breakdown in the

appellate system, or non-negligent conduct. Id., No. 8.

         Claimant timely appealed to the Board, which adopted the referee’s findings

of fact and conclusions of law and affirmed the referee’s decision. The Board

determined that Claimant failed to establish fraud or an administrative breakdown

so as to justify her untimely appeal. The Board concluded:


                The claimant did not file an appeal from the determination
                at issue by the January 4, 2017, deadline because she did
                not think [she] needed to given that [she] was able to
                continue filing her bi-weekly claims. This does not

3
    Section 501(e) of the Law provides:

         Unless the claimant . . . files an appeal . . . from the determination contained in any
         notice required to be furnished by the [D]epartment [of Labor and Industry] under
         section [501] (a), (c) and (d) [of the Law], 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) (internal footnote omitted).

                                                   3
              constitute sufficient reason for finding her appeal timely[,]
              as claimants are specifically instructed to continue filing
              their bi-weekly claims during the pendency of their
              appeals even if they were denied benefits.
Bd.’s Order, 4/11/17, at 1. Claimant now appeals to this Court.4


       Claimant asserts that her late appeal was caused by an administrative

breakdown. Specifically, she claims that she repeatedly called the Department

before the appeal deadline to inquire about the status of her claim but was unable to

reach a representative. Claimant asserts that her inability to speak with a Department

representative regarding her claim constituted an administrative breakdown, thereby

justifying her filing of an untimely appeal. We disagree.

       Section 501(e) of the Law requires a claimant to file an appeal from a

Department determination within 15 days of the date of mailing to the claimant’s

last known postal address. 43 P.S. § 821(e). The “15-day time limit is mandatory

and subject to strict application.” Vereb v. Unemployment Comp. Bd. of Review, 676

A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en banc). If the claimant does not file an

appeal within 15 days, “the determination becomes final, and the [Department] does

not have the requisite jurisdiction to consider the matter.” Id.




4
   Where the party with the burden of proof was the only party to present evidence and did not
prevail below, our scope of review is limited to determining whether the Board capriciously
disregarded competent evidence and whether there was a constitutional violation or an error of
law. Constantini v. Unemployment Comp. Bd. of Review, 173 A.3d 838, 842 n.4 (Pa. Cmwlth.
2017).
                                              4
      A claimant has “a heavy burden to justify” the filing of an untimely appeal.

Constantini, 173 A.3d at 844. “Generally, an appeal nunc pro tunc may be allowed

when a delay in filing the appeal is caused by extraordinary circumstances involving

‘fraud or some breakdown in the court’s operation through a default of its officers.’”

Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996)

(citation omitted). To satisfy his or her burden of proof, the claimant must establish

that the Department “engaged in fraudulent behavior or manifestly wrongful or

negligent conduct” or that “non-negligent conduct beyond [the claimant’s] control

caused the delay.” Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194,

198 (Pa. Cmwlth. 2008).

      The Pennsylvania Supreme Court has explained that an administrative

breakdown occurs when “an administrative board or body is negligent, acts

improperly[,] or unintentionally misleads a party.” Union Elec. Corp. v. Bd. of Prop.

Assessment, Appeals & Review, 746 A.2d 581, 584 (Pa. 2000); see Hessou, 942 A.2d

at 198 (noting that examples of administrative breakdown include when referee

mails decision to incorrect address, Department does not provide adequate assistance

to claimant with cognitive impairment, or Department official misleads claimant as

to proper procedure for filing appeal).

      We reject Claimant’s assertion that her failure to reach a Department

representative by phone before the appeal deadline constituted an administrative

breakdown.    The record contains no evidence that the Department misled or
                                     5
misinformed Claimant about her right to appeal. In fact, Claimant’s testimony

established that she received the Notice before the appeal deadline and was aware of

the January 4, 2017 deadline and her need to file a timely appeal. See N.T., 2/2/17,

at 5-6; Ref.’s Findings of Fact, Nos. 7-8. Claimant testified that she filed her appeal

late because she was unsure of her claim status. However, nothing prevented

Claimant from filing a timely appeal while she attempted to seek clarification from

the Department. See Hessou, 942 A.2d at 200 (concluding that Board’s alleged

failure to return claimant’s phone calls did not warrant nunc pro tunc relief where

neither Board nor referee engaged in fraudulent behavior or negligent conduct and

referee’s decision notified claimant of appeal period). The evidence established that

Claimant’s own conduct caused the delay. We conclude that Claimant failed to

satisfy her burden of proving that her untimely appeal was caused by fraud, an

administrative breakdown, or non-negligent conduct beyond her control.5




5
   In her brief, Claimant also asserts that she was not required to appeal from the Department’s
December 20, 2016 Notice because her “reason for being denied eligibility was later found to be
erroneous.” Claimant’s Br. at 6. In support of this argument, Claimant relies on the Department’s
April 25, 2017 Notice of Revised Standing Order, which was issued in another appeal involving
Claimant. See Claimant’s Br., Ex. B. However, because the April 25, 2017 Notice appended to
Claimant’s brief is not included in the certified record before this Court, we will not consider it.
See Croft v. Unemployment Comp. Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (en banc)
(“This Court may not consider auxiliary information appended to a brief that is not part of the
certified record on appeal.”).
                                                 6
Accordingly, we affirm.



                          __________________________________
                          ELLEN CEISLER, Judge




                            7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kiara E. Calverley,                 :
                      Petitioner    :
                                    :
            v.                      : No. 736 C.D. 2017
                                    :
Unemployment Compensation           :
Board of Review,                    :
                 Respondent         :



                                   ORDER

      AND NOW, this 12th day of February, 2018, the order of the Unemployment

Compensation Board of Review, dated April 11, 2017, is hereby affirmed.



                                    ________________________________
                                    ELLEN CEISLER, Judge
