               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles A. Gerber IV,                          :
                              Petitioner       :
                                               :
                       v.                      :   No. 1855 C.D. 2017
                                               :   Submitted: August 10, 2018
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: October 12, 2018


       Charles A. Gerber IV (Claimant), pro se, petitions for review of a November
17, 2017 Order of the Unemployment Compensation (UC) Board of Review
(Board). The Order affirmed a Referee’s Decision dismissing Claimant’s appeal as
untimely pursuant to Section 501(e) of the UC Law (Law).1 Upon review, we affirm.
       After a hearing held on September 22, 2017, the Referee made the following
findings of facts. Claimant first filed an application for UC benefits on February 21,
2016. Upon filing, Claimant was instructed to register “for employment search
services offered by the Pennsylvania CareerLink system or its successor agency

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e).
within thirty (30) days after initial application for benefits.”2 Section 401(b)(1)(i) of
the Law, 43 P.S. § 801(b)(1)(i). In addition, Claimant received a Pennsylvania UC
Handbook, which included information regarding how to register for JobGateway.
(Referee Decision, Finding of Fact (FOF) ¶ 7.) In a letter mailed on March 14, 2016
(Notice), the Office of UC Benefits notified Claimant that he must register on
JobGateway by March 23, 2016, or face disqualification from future benefits.
(Record (R.) Item 2; FOF ¶ 8.)               The Notice further stated “the department
recommends that you register even if you are currently exempt. If . . . you become
unemployed in the future, you will be ineligible for benefits until you register.”
(R. Item 2 (emphasis added).) Following the expiration of the 30 days to register on
JobGateway, the Office of UC Benefits, in a Notice of Determination mailed on
March 28, 2016 (Determination), disqualified Claimant from receiving benefits for
the week ending March 26, 2016, and thereafter until Claimant registered. (R.
Item 3.) The Determination informed Claimant that his final day to appeal was April
12, 2016. At the time of the Determination, Claimant was working again and not in
need of UC benefits; thus he neither registered on JobGateway3 nor appealed the
Determination. (FOF ¶ 2.)


       2
           Pennsylvania CareerLink® system is defined in 34 Pa. Code § 65.11(a) as “[t]he system
of offices, personnel and resources, including the Commonwealth Workforce Development
System or successor electronic resources, through which the Department provides services under
the Wagner–Peyser Act (29 U.S.C. §§ 49-49l-2) and the Workforce Investment Act of 1998 (29
U.S.C.[] §§ 2801-2945) or similar or successor statutes.” The online registration used by
Pennsylvania CareerLink® system is JobGateway (www.jobgateway.pa.gov).
         3
           Claimant’s wife indicated during the hearing that Claimant’s lack of registration was due
in part to his membership in a union, as he was not allowed to solicit employment from a job search
website such as JobGateway. Given this, Claimant believed he was exempt from the registration
requirement. At the hearing and in his brief, Claimant also indicated that he believed he may have
been exempt due to a previous registration with JobGateway in 2012.



                                                 2
       In December 2016, Claimant became unemployed again and applied for
benefits using his existing claim, opened in February. Because Claimant was
merely re-opening his initial claim, there was no additional eligibility or
disqualification determination made. When Claimant did not receive his benefits,
he repeatedly attempted to contact the UC Service Center (UCSC), but was unable
to get through to a representative.4 (FOF ¶ 4.) Claimant returned to work in January
2017, but continued to seek resolution for the approximate four weeks of unpaid
benefits. After Claimant was unable to reach anyone at the UCSC, he sought the
assistance of his state representative and subsequently filed an appeal of the March
28, 2016 Determination on August 30, 2017, approximately 16 months after the
appeal deadline. (FOF ¶ 5.)
       Following the hearing, the Referee dismissed Claimant’s appeal as untimely.
(Referee Decision at 3.) The Referee considered the appeal as if it had been filed in
December 2016, finding that Claimant’s delay in filing between December 2016,
and August 2017, was due to his inability to reach the UCSC. (Id. at 2.) Although
acknowledging that Claimant was employed and did not anticipate needing UC
benefits when the Determination was sent, the Referee rejected that reason as good
cause excusing Claimant’s untimely appeal. (Id.) Rather, the Referee determined
that Claimant was on notice of both the appeal deadline for the Determination and
the registration requirement to maintain eligibility. (Id.) Claimant appealed the




       4
        At the hearing, Claimant and his wife testified as to their unsuccessful attempts to reach
the UCSC. On the record, the Referee acknowledged that “it was impossible to get through on the
phones” to the UCSC in December 2016, due to short staffing and lay-offs. (Notes of Testimony
at 7.)



                                                3
Referee’s Decision, and the Board affirmed by Order mailed on November 17,
2017.5
         On appeal,6 Claimant primarily challenges the JobGateway registration
requirement, arguing that he registered in 2012, that he should have been excused
from having to register again, and that registering was a mere formality. Further,
Claimant maintains the UCSC did not act with due diligence when it did not respond
to his inquiries. Claimant does not directly address the untimeliness of his appeal.
In response, the Board asserts that the appeal is indisputably untimely and the only
issue to be resolved is whether Claimant is entitled to nunc pro tunc relief. The
Board argues Claimant did not meet his burden of proving entitlement to nunc pro
tunc relief, as Claimant’s return to work in March was insufficient to excuse his
decision not to appeal the Determination at that time. Since Claimant’s appeal is
untimely, the Board contends that this Court cannot reach the merits, including
whether Claimant had already registered or was excused from registering.
         Section 401(b)(1) of the Law provides that compensation is payable to an
individual who is or becomes unemployed and “[i]s making an active search for
suitable employment.” 43 P.S. § 801(b)(1). An active search includes “[r]egistration
by a claimant for employment search services offered by the Pennsylvania
CareerLink system or its successor agency within thirty (30) days after initial
application for benefits.” 43 P.S. § 801(b)(1)(i). The corresponding regulations state

         5
          The Board adopted and incorporated the Referee’s findings and conclusions with the
exception of correcting errors in the dates the Referee used for the mailing of the Determination
and the last date by which Claimant could appeal, which did not affect the outcome of the appeal.
       6
          In reviewing the Board’s decision, our standard of review is limited to determining
“whether an error of law was committed, whether constitutional rights were violated, or whether
the necessary findings of fact are supported by substantial evidence.” Dep’t of Labor and Indus.
v. Unemployment Comp. Bd. of Review, 131 A.3d 597, 600 n.6 (Pa. Cmwlth. 2016).



                                               4
in relevant part that a claimant who does not register “will be ineligible for
compensation for any week that ends more than 30 days after the claimant files his
application for benefits unless the claimant registers by Sunday of that week.” 34
Pa. Code § 65.11(c) (emphasis added).7 Once a determination of ineligibility for
benefits is made and notice is sent, a claimant must file an appeal of the
determination “within fifteen calendar days after such notice was . . . mailed to his
last known post office address” and, if a claimant does not so file an appeal, the
determination “shall be final and compensation shall be paid or denied in accordance
therewith.” 43 P.S. § 821(e). The Determination was mailed to Claimant on March
28, 2016, which provided notice of the April 12, 2016 appeal deadline. However,
Claimant did not file the appeal by that deadline and, thus, the appeal is untimely.
       The Board may still consider an untimely appeal if Claimant can meet the
“heavy” burden of showing either (1) administrative breakdown or fraud, or (2) non-
negligent conduct outside of Claimant’s control that caused the delay. Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An
administrative breakdown exists when the administrative agency is negligent or
unintentionally misleads a party. Union Elec. Corp. v. Bd. of Prop. Assessment,
Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000). Administrative
breakdowns allowing untimely appeals have been found “in limited circumstances.”
Hessou, 942 A.2d at 198. See, e.g., Dep’t of Labor and Indus., Uninsured Employers

       7
         There are three statutory exemptions for the registration requirement. 43 P.S. § 801(b)(4)-
(6) (when a claimant is in training approved by the Trade Act of 1974, as amended, 19 U.S.C. §§
2101-2497(b); when a claimant is laid off and provided a recall date; and when the department
waives the requirements). We also note that the registration requirement is distinct from weekly
work search activity requirements. While union worker claimants are not an enumerated statutory
exception to the registration requirement, the regulations provide an exemption from weekly work
search activities for claimants who are members of a union with a hiring hall. 34 Pa. Code §
65.11(f)(1).


                                                 5
Guaranty Fund v. Workers’ Comp. Appeal Bd. (Gerretz, Reliable Wagon & Auto
Body, Inc.), 142 A.3d 148, 155-56 (Pa. Cmwlth. 2016) (noting that administrative
breakdown may occur where an adjudicator incorrectly prohibits a party from
appealing an order); C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274, 1280 (Pa.
Cmwlth. 2005) (allowing nunc pro tunc relief for administrative breakdown where
a petitioner received improper notice as required by statute); cf. Duhigg v.
Unemployment Comp. Bd. of Review, 181 A.3d 1, 4-5 (Pa. Cmwlth. 2017) (rejecting
the assertion of an administrative breakdown where a claimant did not notify the
Board of a change in address).
       Claimant has not shown that non-negligent conduct outside of his control
caused the delay in filing. Additionally, the factual findings are not sufficient to
demonstrate an administrative breakdown. While it is unfortunate Claimant was
unable to speak with anyone at the UCSC to answer his questions regarding his
unpaid benefits, this does not save his claim. Claimant’s inability to reach the UCSC
over the phone amounted to the “failure to return phone calls,” which is typically not
enough to warrant nunc pro tunc relief. See Hessou, 942 A.2d at 200. In any event,
the internal administrative issues that occurred at the UCSC in December 2016, were
well after the deadline for Claimant to appeal and, thus, cannot be the cause of
Claimant’s untimely appeal.
       Further, as the Referee determined, the fact that Claimant had returned to work
and was not in need of UC benefits does not justify his untimely appeal. This Court
recently held as much in Boesch v. Unemployment Compensation Board of Review
(Pa. Cmwlth., No. 612 C.D. 2016, filed Nov. 3, 2016), slip op. at 7-8.8 There, we

       8
         Boesch, an unpublished opinion, is cited for its persuasive value in accordance with
Section 414(a) of the Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code
§ 69.414(a).


                                             6
stated that “even though [c]laimant may have returned to work, he was on notice”
that he would continue to be ineligible for UC benefits until he registered, and his
“failure to recognize the full implication that the disqualification would continue did
not provide him with the justification to allow his late appeal.” Id., slip op. at 8.
Because the claimant had filed an untimely appeal and provided no justifiable reason
for granting nunc pro tunc relief, we had “no jurisdiction to address the merits of the
case.” Id.
      Similar to Boesch, Claimant was on notice of the Determination disqualifying
him from receiving benefits at that time or in the future. In order to prevent this
outcome, Claimant could have either (1) appealed the Determination by its deadline
to challenge his registration or exemption therefrom, or (2) registered for
JobGateway in December 2016, to purge his disqualification for the remainder of
that benefit year. He cannot now receive benefits for the weeks in December 2016,
in which he was unemployed by way of an appeal of the March 2016 Determination.
Therefore, since Claimant “[f]ail[ed] to file an appeal within fifteen days, without
an adequate excuse for the late filing,” the Referee was correct to determine there
was no jurisdiction to address the merits of Claimant’s appeal. Hessou, 942 A.2d at
198 (citation omitted). Accordingly, we must affirm the Board’s Order, which
affirmed the Referee’s dismissal of the appeal as untimely.
                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles A. Gerber IV,                   :
                        Petitioner      :
                                        :
                  v.                    :   No. 1855 C.D. 2017
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


      NOW, October 12, 2018, the November 17, 2017 Order of the Unemployment
Compensation Board of Review, in the above-captioned case, is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
