                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas M. Talty,                             :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :    No. 135 C.D. 2018
                    Respondent               :    Submitted: October 16, 2018


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY
JUDGE COVEY                                       FILED: November 9, 2018

              Thomas M. Talty (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) October 6, 2017
order dismissing Claimant’s appeal as untimely. The sole issue presented for review
is whether the UCBR properly dismissed Claimant’s appeal.
              Claimant was employed on a seasonal basis by Home Depot (Employer)
until June 18, 2016, when he resigned. On June 26, 2016, Claimant applied for UC
benefits. On July 7, 2017, the Altoona UC Service Center (UC Service Center)
determined that Claimant was ineligible for UC benefits under Section 402(b) of the
UC Law (Law)1 and issued a Fault Notice of Overpayment in accordance with
Section 804(a) of the Law.2 Claimant appealed and a Referee hearing was held. On
August 10, 2017, the Referee affirmed the UC Service Center’s Determination. The
Referee’s decision expressly informed Claimant: “THE              LAST DATE TO FILE AN




       1
         Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (referring to voluntarily leaving employment without a necessitous and compelling cause).
       2
         43 P.S. § 874(a) (referencing UC recovery and recoupment).
APPEAL TO THIS DECISION IS        08/25/17[.]” Certified Record (C.R.) Item 9 (Referee’s
Decision) at 3.
              Claimant appealed to the UCBR on August 27, 2017. By September 11,
2017 letter, the UCBR informed Claimant, in relevant part:

              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 [UCBR] 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.
              Unless the [UCBR] receives a reply, specifically
              requesting a hearing on the timeliness issue, postmarked
              by September 26, 2017, it will proceed to issue an
              appropriate order. This may result in the dismissal of your
              appeal, in which case the [R]eferee’s decision becomes
              final and binding on all parties.

C.R. Item 11 (UCBR’s Response to Claimant’s Request) at 1 (emphasis in original).
Claimant sent a written response to the UCBR, but did not request a hearing on the
timeliness of his appeal.       See UCBR Dec. at 2; see also C.R. Item 12 (Claimant’s
Request for Review of Appeal).              On October 6, 2017, the UCBR dismissed
Claimant’s appeal as untimely pursuant to Section 502 of the Law. 3 On January 31,
2018, Claimant filed his Petition for Review (Petition) appealing to this Court from
the UCBR’s order.4 By March 6, 2018 Order, this Court directed the parties to



       3
         43 P.S. § 822.
       4
         “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.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).
                                                 2
address the untimeliness of Claimant’s appeal to this Court in their principal briefs on
the merits.
              On April 5, 2018, the UCBR filed an Application for Relief in the Form
of a Motion to Quash Petitioner’s Petition for Review and Dismiss his Appeal or
Amend the Interlocutory Order (Motion to Quash). On April 18, 2018, Claimant
filed an answer thereto (Answer). By April 30, 2018 Order, this Court directed that
the Motion to Quash be decided with the merits.             Neither party addressed the
untimeliness of the appeal to this Court in their briefs. Notwithstanding, this Court
will rule on that issue first, as it is dispositive.
              Pennsylvania Rule of Appellate Procedure (Rule) 1512(a) provides: “A
petition for review of a quasijudicial order . . . shall be filed with the prothonotary of
the appellate court within 30 days after the entry of the order.” Pa.R.A.P. 1512(a).
Further, Rule 105(b) states:

            An appellate court for good cause shown may upon
            application enlarge the time prescribed by these rules or by
            its order for doing any act, or may permit an act to be done
            after the expiration of such time, but the court may not
            enlarge the time for filing . . . a petition for review.
Pa.R.A.P. 105(b) (emphasis added). The law is well established that
              [t]he timeliness of an appeal and compliance with the
              statutory provisions which grant the right of appeal go to
              the jurisdiction of the court to hear and decide the appeal. . .
              . The courts have no power to extend the period for taking
              appeals, absent fraud or a breakdown in the court’s
              operation through a default of its officers. (Citations
              omitted.)

Hillanbrand v. Pa. Bd. of Prob. & Parole, 508 A.2d 375, 378 (Pa. Cmwlth. 1986)
(quoting Alitieri v. Pa. Bd. of Prob. & Parole, 495 A.2d 213, 214 (Pa. Cmwlth.
1985)).



                                                3
             Here, Claimant filed his Petition with this Court 116 days after the
UCBR’s order was entered. In his Answer to the Motion to Quash, Claimant averred:
“[Claimant] has not yet had the opportunity to attempt to meet his burden and asks
the Court to allow him to submit a brief, explaining the delays and the merits of the
claim.” Answer ¶ 3. However, despite the Court ordering the parties to address
Claimant’s untimely appeal to this Court, Claimant did not address the untimeliness
of his appeal in his brief. Under such circumstances, “[s]ince no fraud or breakdown
in the court’s operations is alleged, [Claimant’s] failure to file a timely petition for
review deprives this Court of jurisdiction to consider the merits of his contentions.”
Hillanbrand, 508 A.2d at 378 (quoting Alitieri, 495 A.2d at 214).
             For all of the above reasons, the UCBR’s Motion to Quash Claimant’s
Petition is granted and Claimant’s appeal is dismissed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           4
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas M. Talty,                       :
                        Petitioner     :
                                       :
                   v.                  :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 135 C.D. 2018
                    Respondent         :



                                     ORDER

     AND NOW, this 9th day of November, 2018, the Unemployment
Compensation Board of Review’s Application for Relief in the Form of a Motion to
Quash Petitioner’s Petition for Review is GRANTED and Thomas M. Talty’s appeal
is DISMISSED.


                                     ___________________________
                                     ANNE E. COVEY, Judge
