             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chironn Davis,                  :
               Petitioner       :
                                :
           v.                   :                No. 348 C.D. 2016
                                :                Submitted: October 7, 2016
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: December 7, 2016

                Chironn P. Davis (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) dismissing his appeal as
untimely pursuant to Section 502 of the Unemployment Compensation Law
(Law).1 For the reasons that follow, we affirm.
                Claimant was discharged from his job with US Airways (Employer)
for excessive absenteeism. The UC Service Center granted his application for
benefits, and Employer appealed. On November 16, 2015, a Referee issued a
decision holding that Claimant was ineligible for unemployment compensation
benefits under Section 402(e) of the Law, 43 P.S. §802(e). That same day, a copy
of the decision was mailed to Claimant at his last known post office address; there

1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
is no indication that it was returned by the postal authorities as undeliverable. The
Referee’s decision included a notice advising Claimant that he had 15 days to file
an appeal to the Board. Thus, in order to be timely, Claimant’s appeal had to have
been filed on or before December 1, 2015. Claimant did not file an appeal with the
Board until January 11, 2016.
                  On January 13, 2016, the Board advised Claimant in writing that his
petition for appeal was untimely and that if he believed the appeal should be
deemed timely, he must reply in writing and request a hearing on the timeliness
issue. The Board’s letter stated:

                  If you believe that you filed your appeal within the fifteen (15)
                  day period or that it should be deemed timely for other reasons,
                  you must request in writing that a hearing be scheduled to
                  allow you the opportunity to set forth your reasons as to why
                  you believe your appeal was timely filed. Please mail your
                  request to the Board at the above letterhead address. Any such
                  hearing involves only the issue of whether the appeal was
                  timely filed. No ruling is made on the merits of the case unless
                  the appeal is first ruled timely.

Certified Record (C.R. __) Item No. 13 (emphasis in original).
                  On January 19, 2016, Claimant sent a written response to the Board
but did not request a hearing on the timeliness of his appeal. C.R. Item No. 14.2


2
    Claimant’s letter stated:
        Again, I am filing this appeal for very good cause. In my case I do not agree with
        the referee’s decision on my behalf, and my union’s behalf. I am Local 1776.
        Also I went into the hearing unprepared with no type of legal representation
        barring the proof that I have, and I feel as tho [sic] I am entitled to a fair day in
        Court. Also I have not filed for benefits since they have been cut due to the
        referee’s decision.
C.R. Item No. 14.


                                                 2
As a result, the Board issued an order dismissing Claimant’s appeal as untimely
pursuant to Section 502 of the Law, 43 P.S. §822. Claimant now petitions for this
Court’s review.
              On appeal,3 Claimant argues that the Board’s order was not supported
by substantial evidence and did not properly consider the applicable law.
Specifically, Claimant argues that his appeal should be considered timely because
of his status as a pro se litigant. He also argues that Employer failed to carry its
burden of proving willful misconduct, and did not act in accordance with its own
termination procedures.
              We first address Claimant’s argument regarding the timeliness of his
appeal. Claimant asserts that an appeal may be submitted late if the delay was not
caused by Claimant’s own negligence. He argues that his late filing was not the
result of his negligence, but, rather, his ignorance of the law as a pro se litigant.
Claimant’s argument lacks merit.
              Section 502 of the Law provides that “[t]he referee’s decision, and the
reasons therefor … shall be deemed the final decision of the board, unless an
appeal is filed therefrom, within fifteen days after the date of such decision….” 43
P.S. §822. If an appeal is not filed within 15 days, the referee’s decision becomes
final and the Board does not have jurisdiction to consider the matter. Han v.
Unemployment Compensation Board of Review, 42 A.3d 1155, 1157 (Pa. Cmwlth.


3
  This Court’s scope of review in an unemployment compensation appeal is to determine whether
an error of law was committed, whether constitutional rights were violated, or whether necessary
findings of facts are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. §704; Brown v. Unemployment Compensation Board of Review, 49 A.3d
933, 936 n.4 (Pa. Cmwlth. 2012).


                                               3
2012). The 15-day time limit for filing an appeal from the referee’s decision is
mandatory. United States Postal Service v. Unemployment Compensation Board
of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 1993).
            Further, Section 101.61(a) of the Department’s regulations provides:

            (a) If an appeal from a decision of the Department or an
            application for further appeal appears to have been filed beyond
            the applicable time limit, the tribunal shall advise the appealing
            party in writing that it appears not to have jurisdiction because
            of the late filing, and that the appeal or application for further
            appeal will be dismissed without a hearing unless the appealing
            party notifies the tribunal in writing within the succeeding 15
            days from the date of such notice, that he contends the appeal or
            application for further appeal was timely filed and that he
            desires a hearing. If no reply from the appealing party is
            received within the 15-day period, or if the appealing party
            does not request a hearing, the tribunal shall dismiss the appeal
            or application for further appeal.

34 Pa. Code §101.61(a) (emphasis added).
            Failure to request a hearing on the timeliness of an appeal in
accordance with Section 101.61(a) of the Board’s regulations, and when directed to
do so by the Board’s letter, warrants the dismissal of the appeal. See Han, 42 A.3d
at 1155. In Han, we explained:

            [T]he Board is without jurisdiction to further consider the
            matter under [S]ection 502 [of the Law], and it is precluded
            from considering the facts underlying the timeliness of
            Claimant’s appeal unless they are adduced at a hearing on that
            issue. Claimant prevented the Board from considering his
            claims regarding the timeliness of his appeal by failing to
            request such a hearing and, as a result, we are constrained to
            conclude that the Board did not err in dismissing his appeal as
            untimely.



                                         4
Id. at 1158. Here, the Board notified Claimant on January 13, 2016, that his appeal
appeared to be untimely. As did the claimant in Han, Claimant responded to the
Board but did not request a hearing. Thus, the Board was prevented from holding
a hearing on the timeliness of Claimant’s appeal and, consequently, lacked
jurisdiction to consider Claimant’s appeal under Section 502 of the Law, 43 P.S.
§822.
              Claimant asserts that he believed his response to the Board was
sufficient and asks for leniency based on his ignorance of the law. This Court has
observed that “any layperson choosing to represent himself in a legal proceeding
must, to some reasonable extent, assume the risk that his lack of expertise and legal
training will prove his undoing.” Vann v. Unemployment Compensation Board of
Review, 494 A.2d 1081, 1086 (Pa. 1985) (quoting Groch v. Unemployment
Compensation Board of Review, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)). What is
more, we cannot say Claimant’s lack of legal training or expertise played any
significant role here. The Board’s letter, in bolded text, stated that if Claimant
believed his appeal should be deemed timely for any reason, he “must request in
writing a hearing to be scheduled” to allow him to explain such reasoning.
Claimant, in his response, failed to follow this explicit direction of the Board.
Accordingly, the Board did not err in dismissing Claimant’s appeal as untimely. 4




4
  Claimant’s brief alleges that his landlord withheld his mail for two weeks and he did not
receive the Referee’s November 16, 2015, decision. Claimant’s Brief at 15. This argument
would have been properly heard at a timeliness hearing before the Board. However, Claimant’s
failure to request a hearing precludes this Court from addressing it now.


                                             5
              For the foregoing reasons,5 the order of the Board is affirmed.

                                        ______________________________________
                                        MARY HANNAH LEAVITT, President Judge




5
 Even if Claimant’s appeal was timely filed, it would fail on the merits. The Referee found that
Claimant was terminated for willful misconduct due to excessive absenteeism. Referee’s
Decision, 11/16/2015, at 2; C.R. Item No. 11 at 2. The Referee found that Employer used a point
system attendance policy which provided that any employee who accumulated 12 points may be
subject to termination. Id. at 1. At the time of Claimant’s termination, he had been issued three
employee contact reports warning him of his excessive absenteeism, and had accumulated a total
of 33 attendance points. Id. at 2. Moreover, the Referee found that Claimant offered no
adequate justification for his excessive absenteeism. At the hearing Claimant offered into
evidence a funeral notice and two court orders requiring his appearance. C.R. Item No. 10. The
Referee found this insufficient to justify Claimant’s absenteeism that resulted in 33 attendance
points. Referee’s Decision, 11/16/2015, at 2; C.R. Item No. 11 at 2. We agree. Accordingly,
Employer met its burden of proving that Claimant committed willful misconduct.


                                               6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chironn Davis,                  :
               Petitioner       :
                                :
           v.                   :     No. 348 C.D. 2016
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                               ORDER

           AND NOW, this 7th day of December, 2016, the order of the
Unemployment Compensation Board of Review dated February 2, 2016, in the
above-captioned matter is AFFIRMED.

                              _____________________________________
                              MARY HANNAH LEAVITT, President Judge
