IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Redien Sium

, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 1190 C .D. 202 2

Respondent : Submitted: May 26 , 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY 1 FILED: September 3, 2024

Redien Sium (Claimant) petitions this Court for review of the

Unemployment Compensation (UC) B oard of Review’s ( UCBR ) October 6, 2022

order vacating the Referee’s dec ision that Claimant’s appeal from the UC Service

Center’s May 7, 2021 determination (First Determination) was timely and affirmed

that Claimant was ineligible for Pandemic Unemployment Assistance (PUA)

benefits under Section 2102(a)(3) (A)(i) of the Coronavirus Aid, Relief, and

Economic Security Act of 2020 (CARES Act) , and dismissing Claimant’s appeal

. 2

Essentially, t he issue before this Court is whether Claimant satisfied her burden of

1 This matter was reassigned to the author on February 15, 2024.

2 15 U.S.C. § 9021(a)(3) (A)(i ). Section 2102(a)(3)(A)(i) of the CARES Act states that a
“covered individual” is someone who “is not eligible for regular compensation or extended
benefits under State or Federal law or pandemic emergency unemployment compensation.” 15

U.S.C. § 9021(a)(3)(A)(i)

.2

pro v ing that she is entitled to nunc pro tunc relief to appeal from the First

Determination

. After review, this Court affirms.

On June 8, 2020, C laimant filed an applica ti on for PUA benefits

,
establishing an effec ti ve applica ti on date of March 8, 2020. C laimant had previously

filed an applica ti on for UC benefits on April 30, 2020, with an effec ti ve date of April

26, 2020. On March 26, 2021, C laimant began consul ti ng with Community Legal

Services (CLS) regarding her benefit claims

. In addi ti on to assistance from CLS,

C laimant had help from another individual to translate no ti ces from the Department

of Labor and Industry (Department). 3 O n May 7, 2021, the Department mailed to

C laimant ’ s post office address, transmi tt ed via email to C laimant ’ s email address on

record, and transmi tt ed to C laimant via internal message on the PUA claim system,

two determina ti on no ti ces : (1) denying PUA benefits on the basis that she le ft work

for reasons that were not a direct result of the COV I D

- 19 Pandemic (First

Determination) ; and (2) denying PUA benefits on the basis that C laimant may be

eligible for benefits under state law or a federal u nemployment i nsurance extension

program (Second De termin ation )

. 4 On that same day, the Erie UC Service Center

issued a no ti ce of determina ti on to C laimant denying UC benefits for voluntarily

leaving work (Third De termination )

.

On May 28, 2021, Claimant appealed from the Department’s First

De termination

. On December 17, 2021, the Referee ruled that Claimant’s appeal

from the First D etermination was timely and affirmed that Claimant wa s ineligible

for PUA benefits under Section 2102(a)(3) of the CARES Act

. Claimant appealed

3 Claimant ’s native language is Tigrinya. Claimant has a limited understanding of the
English language.

4 Th e Second Determination contained the following statement: “ You are eligible for

UC/E [mergency] UC/ SB [ b] enefits in the state of Pennsylvania. ” Certified Record at 131. The

D epartment subsequently vacated the Secon d Determination

.3

to the UCBR. On October 6, 2022, the UCBR vacated the Referee’s decision, and

dismissed the appeal as untimely. Claimant appealed to this Court. 5

Initially,

[ f ormer] Section 501 (e) of the [UC] Law [(Law) 6 ] require [d] a claimant to appeal a notice of determination within 15 calendar days of the date the “notice was delivered to him personally [] or was mailed to his last known post office address[.]” [ 7 ] 43 P.S. § 821 (e)

. “Failure to file a timely appeal as required by Section 501 (e) of the Law is a jurisdictional defect.” Carney v. Unemployment Comp [

. ] [ Bd

. ] of Rev [

. ] , 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018). “The time limit for a statutory appeal is mandatory; it may not be extended as a matter of grace or indulgence.” Id

. In limited circumstances, however, the [UCBR] may consider an untimely appeal nunc pro tunc

. To justify an exception to the appeal deadline , “[ a claimant ] must demonstrate that his delay resulted from extraordinary circumstances involving fraud

, a breakdown in the administrative process

, or non

negligent circumstances relating to [ the claimant ]

himself .” Id

. “[ N ] egligence on the part of an administrative official may be deemed the equivalent

of fraud .” ATM Corp [

. ] of Am [

. ] v. Unemployment Comp [

. ] [ Bd

. ] of Rev [

. ] , 892 A.2d 859, 864 n.11 (Pa. Cmwlth. 2006) (citation omitted).

Bashinsky v. Unemployment Comp. Bd. of Rev.

, 246 A.3d 381, 384 (Pa. Cmwlth.

2021) (emphasis added)

. “ [T]he claimant bears a heavy burden to justify an

untimely appeal. ” Roman

- Hutchinson v. Unemployment Comp. Bd. of Rev. , 972

A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009).

5 Our 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. See Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

6 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended

, 43 P.S. §

821(e).

7 On July 24, 2021, Section 501(e) of the Law was amended to require an appeal be filed

“ no later than [21] calendar days after the ‘ Determination Date ’ provided on such notice [.] ” 43

P.S. § 821(e).4 Claimant argues that the issuance of an incorrect notice , which

informed Claimant that an appeal from a PUA denial would be futile and she was

eligible for compensation from a separate, mutually exclusive program

, constitute s

an administrative breakdown

, thereby

, justifying the filing of an appeal four days

past the deadline

. This Court disagrees.

The First Determination stated:

You DO NOT qualify for unemployment benefits

Dear [Claimant]

, We have completed a review and investigation of your

claim for [ PUA ] referenced above. We have determined that your claim is DENIED as you do not meet the qualifications required by the [ CARES Act ] for [PUA] and

the Continued Assistance Act [of 2021 8 ]

. You quit or took a leave of absence from your job that was

NOT a direct result of COVID

- 19 under Section 2102(a)(3)(A)(ii)(I) of the CARES Act.

This disqualification is effective 03/08/2020 to
09/04/2021

. Please see the last page of this notice for the full text of the applicable law [.]

. . . You have the right to appeal this determination

.

You have 15 days from the mail date on this letter to file an appeal. This means your appeal must be received or postmarked by 05/24/2021

.

Certified Record (C.R.) at 114 (emphasis in original).

The Second Determination s tated :
You DO NOT qualify for unemployment benefits

Dear [Claimant]

, We have completed a review and investigation of your

claim for [ PUA ] referenced above. We have determined

8 Pub. L. No. 117

- 2, 135 Stat. 4.5 that you may have other program eligibility available.

PUA benefits can only be compensated when no other program eligibility is available. You may be eligible for regular [ UC ] or another UC program covered under [s] tate

or [f] ederal [l] aw, (for example, Extended Benefits, Pandemic Emergency [UC] ).

You are eligible for UC/E [ mergency ] UC/SB Benefits in the state of Pennsylvania

. This disqualification is effective 03/08/2020 to
09/04/2021

. Please see the last page of this notice for the full text of the applicable law [.] . .

. You have the right to appeal this determination

. You have 15 days from the mail date on this letter to file an appeal. This means your appeal must be received or postmarked by 05/24/2021

.

C.R. at 131 ( bold emphasis in original; italic emphasis added)

. 9

CLS paralegal Jessica Boehner (Boehner) testified that she advised

Claimant not to appeal from the F irst Determination because the Second

Determination stated that she was eligible for UC. Specifically

, Boehner related :

C [laimant’s] L [awyer (Counsel):] Okay. So [,] in light of

the [S] econd [ Determination ] stating you are eligible for UC, et cetera benefits in the [s] tate of Pennsylvania, what was your understanding of the relevance or importance of appealing the [F] irst Determination regarding eligibility for the PUA program?

[Boehner :] My understanding was that you cannot be eligible for the PUA program if you are eligible for the UC program, so at that time I advised [Claimant] to move to complete an application for the [r] egular [UC] program.

[Counsel:] So on your understanding, if you are eligible

for the [r] egular [UC] program, is there any purpose whatsoever to appealing a denial of the PUA program?

9 The Third Determination stated that Claimant was ineligible for UC benefits and stated

the reasons therefor. See C.R. at 124.6 [Boehner : ] No.

[Counsel:] Did you have any reason to doubt that the Department’s notice that [Claimant] qualified for [r] egular [UC] was correct?

[Boehner:] No.

[Counsel:] You said that you advised [Claimant] to apply

for [r] egular [UC] [b] enefits. After you gave her that advice, what reason

-- did you have any reason to continue checking the PUA Portal?

[Boehner:] No. We moved forward with just working on

the [r] egular [UC] Claim.

[Counsel:] Was [Claimant] ultimately able to collect
[r] egular [UC] ?

[Boehner:] No.

[Counsel:] And what did you learn about her eligibility

for the [ r ] egular [ UC ] ?

[Boehner:] That it turned out that it seemed that notice might have been issued in error because she was not eligible for [ r ] egular [ UC ]

.

C.R. at 97

- 98 (emphasis added)

. 10

T he UCBR reasoned, in relevant part:

C laimant ’ s advocate [, Boehner ,] made the choice to advise [] [C] laimant not to appeal the other adverse

determina ti on [, First Determination ,] because she

believed that [] [C] laimant was eligible to receive U [C]

benefits under state law and an appeal from the PUA disqualification would serve no utility

. However, by doing so, the advocate consciously chose to forfeit [] [ C ] laimant ’ s appeal rights to a determination that [] [ C ] laimant now wishes to challenge

. While the above

quoted [Second D] etermination was supposedly later vacated, it does not support [] [C] laimant ’ s posi ti on that

there was [an] administrative breakdown to excuse the

10 Notwithstanding Boehner’s testimony, Claimant applied for regular UC benefits before
receiving the First and Second Determinations. That application was denied in the Third

Determination. Curiously, Counsel never asked Boehner w h en she learned that Claim a nt was

ine ligible for UC.7 filing of an un ti mely appeal to the disqualifying

determination in ques ti on. Notably, [] [C] laimant was issued a disqualifying [D] etermina ti on for UC benefits on the same day as the [First D] etermina ti on in ques ti on based on her voluntary separa ti on from employment. Thus, [] [C] laimant was neither misled as to her need or right to appeal. Moreover, at all relevant ti mes

, [] [ C ] laimant, or at least her advocate, knew that [] [ C ] laimant had an extant disqualifica ti on for PUA

benefits

. Since appeal deadlines relate to the jurisdic ti on of the [UCBR]

, [] [C] laimant simply cannot do an about

face and challenge the disqualifica ti on a ft er the appeal deadline had elapsed.

Unfortunately, [] [C] laimant ’ s late appeal cannot be excused or accepted nunc pro tunc in light of the

circumstances within the control of [] [C] laimant or her

advocate [,] and [in] the absence of fraud or breakdown in the appellate process.

C.R. at 177. This Court discerns no error in the UCBR’s reasoning. Consequently

,

because it was Claimant’s reliance on Boehner’s advice that an appeal would be

futile

, instead of an administrative breakdown that caused the delay, Claimant has

not met h er “heavy burden to justify an untimely appeal.” Roman

- Hutchinson , 972

A.2d at 1288 n.1. Accordingly, the UCBR properly dismissed Claimant’s appeal as

untimely.

For all of the above reasons

, the UCBR’s order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge

Judge Wallace concurs in the result only.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Redien Sium, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 1190 C.D. 2022

Respondent :

O R D E R

AND NOW, this 3 rd day of September , 20 2 4

, the Unemployment

Compensation Board of Review’s October 6, 2022 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge