S. Douglas v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan Douglas, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 226 C.D. 2022
Respondent : Submitted: August 26, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 17, 2022
Susan Douglas (Claimant) petitions for review of an order of the
Unemployment Compensation (UC) Board of Review (Board) that dismissed as
untimely her appeal from a Referee’s decision. Upon review, we affirm the Board’s
order.
On February 22, 2021, the Referee issued a decision finding Claimant
ineligible for UC benefits for the compensable week ending October 10, 2020
forward and establishing a non-fault overpayment. UC Board Decision, and Order,
3/14/22 (Bd. Dec.), Finding of Fact (FF) 1. The same day the Referee’s decision
was issued, a copy of the decision was mailed to Claimant at her last known post
office address. Id., FF 2 & 3. The mailing included a notice of the 15-day deadline
to appeal to the Board under Section 501(e) of the UC Law,1 43 P.S. § 821(e). The
Board found that “[C]laimant received the Referee’s decision and was aware of her
ineligibility for benefits on or shortly after March 9, 2021.” Bd. Dec., FF 4.
However, Claimant did not attempt to appeal to the Board until May 17, 2021, well
beyond the 15-day deadline. Id., FF 6.2
Before the Board, Claimant asserted that her appeal was late because
“she is a victim of domestic violence, she has various health issues, and she was not
checking for mail on a regular basis”; further, she did not have cell phone or internet
service. Bd. Dec., FF 7. However, the Board found that, although the Referee’s
decision contained information on how and when to appeal, Claimant relied instead
on advice from her son, who incorrectly suggested that “she was wasting her time
trying to file an appeal” from the Referee’s decision and that “she should apply for
Pandemic Unemployment Assistance (PUA) benefits” instead. Id. at 2 & FF 8-10.
The Board concluded that UC authorities did not mislead or misinform Claimant,
and her delay in filing an appeal was due to her reliance on her son’s misinformation.
Id. at 2 & FF 11. Claimant then filed a petition for review in this Court.3
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-
919.10.
2
Confusingly, the Board’s decision states both that Claimant received the Referee’s
decision on or shortly after March 9, 2021, and that to be timely, an appeal to the Board had to be
filed on or before March 9, 2021. Bd. Dec., FF 4 & 5. However, we need not resolve this apparent
inconsistency in the Board’s findings, as Claimant’s appeal on May 17, 2021 was untimely even
if we assume she did not receive the Referee’s decision until on or shortly after March 9, 2021 and
that she had 15 days from that date in order to file her appeal with the Board.
3
This Court’s review of the Board’s order “is limited to determining whether Claimant’s
constitutional rights were violated, whether an error of law was committed, or whether the
necessary factual findings are supported by competent evidence.” Dull v. Unemployment Comp.
Bd. of Rev., 955 A.2d 1077, 1079 n.2 (Pa. Cmwlth. 2008).
2
A timely appeal to the Board from a Referee’s decision is a
jurisdictional prerequisite to the Board’s ability to review the matter. Gannett
Satellite Info. Network, Inc. v. Unemployment Comp. Bd. of Rev., 661 A.2d 502, 504
(Pa. Cmwlth. 1995). The Board is not free to extend an appeal deadline as a matter
of grace or indulgence. Russo v. Unemployment Comp. Bd. of Rev., 13 A.3d 1000,
1003 (Pa. Cmwlth. 2010). Rather, after 15 days, the decision becomes final, and the
Board lacks jurisdiction to consider an appeal, absent extraordinary circumstances.
See Hampson v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 1814 C.D.
2019, filed July 14, 2021),4 slip op. at 5-6 (quoting Vereb v. Unemployment Comp.
Bd. of Rev, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en banc)).
To justify nunc pro tunc relief allowing a late appeal, a claimant bears
a heavy burden of demonstrating extraordinary circumstances involving fraud or
administrative breakdown, or that the claimant’s “non-negligent conduct beyond
[her] control caused the delay.” Hampson, slip op. at 6 (quoting Hessou v.
Unemployment Comp. Bd. of Rev., 942 A.2d 194, 198 (Pa. Cmwlth. 2008)
(additional quotation marks omitted)). Here, Claimant does not allege any fraud or
administrative breakdown. She contends only that her conduct was non-negligent.
We disagree.
Pennsylvania law is settled that “[t]he pressure of life events is . . .
insufficient to excuse an untimely [UC] appeal.” Carney v. Unemployment Comp.
Bd. of Rev., 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018) (additional citations omitted).
This Court has repeatedly held that nunc pro tunc relief was not available in
situations analogous to, or even more exigent than, those in which Claimant found
herself here. See, e.g., Constantini v. Unemployment Comp. Bd. of Rev., 173 A.3d
4This unreported decision is cited as persuasive authority pursuant to Section 414(a) of
this Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
3
838, 845 (Pa. Cmwlth. 2017) (concluding that claimant’s late appeal was not
excusable, although she was “dealing with several ongoing legal issues, a malware
virus attack on her computer network, lost data from her wireless devices, and
medical emergency appointments during the 15-day appeal period”); Dull v.
Unemployment Comp. Bd. of Rev., 955 A.2d 1077, 1080 (Pa. Cmwlth. 2008)
(denying nunc pro tunc relief where, although claimant had an I.Q. of only 76, delay
was her own fault for failing to seek anyone’s help); Maloy v. Unemployment Comp.
Bd. of Rev. (Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), slip op. at 7-9
(denying nunc pro tunc relief where claimant was living around the corner from her
mailing address and depending on neighbors to bring her mail while she was dealing
with her brother’s death, moving, and caring for her daughter and sick mother during
the appeal period); Burgher v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No.
1929 C.D. 2014, filed July 7, 2015), slip op. at 8 (concluding that claimant dealing
with anxiety and stress from layoff did not establish non-negligent circumstances);
Rabe v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 1785 C.D. 2013, filed
February 24, 2014), slip op. at 4 (denying nunc pro tunc relief to claimant who was
dealing with financial stress and multiple pending court cases during appeal period);
Menges v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 2230 C.D. 2009,
filed April 22, 2010), slip op. at 8-9 (determining that claimant dealing with a death
in the family and lingering effects of a medical condition did not establish non-
negligent circumstances).
Here, Claimant similarly failed to establish that her delay of two months
in filing an appeal to the Board was the result of non-negligent circumstances.
Although she alleged that she was dealing with the pressure of various life events,
4
such events do not constitute non-negligent circumstances justifying nunc pro tunc
relief.
Moreover, the Referee and the Board found as a fact that it was not
Claimant’s various alleged life events, but her decision to follow her son’s incorrect
advice rather than the instructions provided with the Referee’s decision, that caused
Claimant’s appeal to the Board to be untimely filed. Thus, Claimant has failed to
satisfy the requirements for nunc pro tunc relief, and the Board correctly dismissed
her appeal as untimely. Accordingly, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan Douglas, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 226 C.D. 2022
Respondent :
ORDER
AND NOW, this 17th day of November, 2022, the order of the
Unemployment Compensation Board of Review dated March 14, 2022, dismissing
as untimely the appeal of Petitioner, Susan Douglas, is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge