IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Redien Sium, :

Petitioner :

:

v. :

:

Unemployment Compensation :

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

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 COVEY1 FILED: September 3, 2024

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

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

order vacating the Referee’s decision 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, the 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

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

Determination. After review, this Court affirms.

On June 8, 2020, Claimant filed an application for PUA benefits, 

establishing an effective application date of March 8, 2020. Claimant had previously 

filed an application for UC benefits on April 30, 2020, with an effective date of April 

26, 2020. On March 26, 2021, Claimant began consulting with Community Legal 

Services (CLS) regarding her benefit claims. In addition to assistance from CLS, 

Claimant had help from another individual to translate notices from the Department 

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

Claimant’s post office address, transmitted via email to Claimant’s email address on 

record, and transmitted to Claimant via internal message on the PUA claim system, 

two determination notices: (1) denying PUA benefits on the basis that she left work 

for reasons that were not a direct result of the COVID-19 Pandemic (First 

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

eligible for benefits under state law or a federal unemployment insurance extension 

program (Second Determination).

4

 On that same day, the Erie UC Service Center 

issued a notice of determination to Claimant denying UC benefits for voluntarily 

leaving work (Third Determination).

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

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

from the First Determination was timely and affirmed that Claimant was 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 The 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 

Department subsequently vacated the Second 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,

[former] 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 nonnegligent 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, constitutes

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 20218].

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 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 

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 First 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

The UCBR reasoned, in relevant part:

Claimant’s advocate[, Boehner,] made the choice to advise 

[] [C]laimant not to appeal the other adverse

determination[, 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 abovequoted [Second D]etermination was supposedly later

vacated, it does not support [] [C]laimant’s position 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 when she learned that Claimant was 

ineligible for UC.
7

filing of an untimely appeal to the disqualifying 

determination in question. Notably, [] [C]laimant was 

issued a disqualifying [D]etermination for UC benefits on 

the same day as the [First D]etermination in question 

based on her voluntary separation from employment. 

Thus, [] [C]laimant was neither misled as to her need or 

right to appeal. Moreover, at all relevant times, [] 

[C]laimant, or at least her advocate, knew that []

[C]laimant had an extant disqualification for PUA 

benefits. Since appeal deadlines relate to the jurisdiction 

of the [UCBR], [] [C]laimant simply cannot do an aboutface and challenge the disqualification after 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 her “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, 2024, the Unemployment 

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

_________________________________

ANNE E. COVEY, Judge