IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica Victoria, :

Petitioner :

 :

v. : Nos. 1809 and 1810 C.D. 2014

 : SUBMITTED: April 24, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE LEADBETTER FILED: October 14, 2015

Erica Victoria (Claimant) petitions for review of two orders of the 

Unemployment Compensation Board of Review (Board) dismissing her appeals as 

untimely pursuant to Section 501(e) of the Pennsylvania Unemployment 

Compensation Law (Law).

1

 After review, we vacate and remand.

 

1

Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 

as amended, 43 P.S. § 821(e), states:

(e) Unless the claimant . . . files an appeal with the board, from the 

determination contained in any notice required to be furnished by the 

department . . . within fifteen calendar days after such notice . . . was 

mailed to his last known post office address, and applies for a hearing, 

such determination of the department, with respect to the particular facts 

(Footnote continued on next page...)
2

Claimant initially filed for and began receiving unemployment 

compensation benefits in May 2013, after being discharged from her employment 

with ISS Facility Services (ISS). In December 2013, Claimant qualified for 

emergency unemployment compensation benefits (EUC).2 According to Claimant, 

at the time of her separation from employment with ISS and for at least five years 

prior thereto, she worked as an independent contractor cleaning the offices of 

Sherlock Investigations, and reported weekly income of $100.00 during the benefit 

period. The claim records show that because “multiple employers” were indicated, 

the Allentown Unemployment Compensation Service Center (Service Center), sent

an Employer’s Notice of Application and an Employer’s Questionnaire to the 

purported employer, Sherlock Investigations, in February 2014. The documents

returned by the purported employer, Sherlock Investigations, indicated that 

Claimant was not and had never been an employee, had cleaned the company’s 

office for years, and was provided with a 1099 at the end of the year. C.R. Items 2 

and 4. The Service Center requested additional information from Claimant, 

leaving a recorded message for Claimant to call the service center.3 C.R. Item 5. 

After no response was received, on March 26, 2014, the Service Center sent the 

following six Notices of Determination to Claimant’s correct mailing address:

_____________________________

(continued...)

set forth in such notice, shall be final and compensation shall be paid or 

denied in accordance therewith.

2

Section 4001(d)(2) of Title IV of the Supplemental Appropriations Act of 2008 (EUC Act),

26 U.S.C. § 3304 note, provides that eligibility for EUC benefits is based on state law on 

eligibility for unemployment compensation benefits.

3 On or about March 5, 2014, a representative from the Service Center left a recorded 

message for Claimant requesting additional information (her 1941 C and 2012 Schedule C 

forms) and for Claimant to call the service center. Then, on March 17, 2014, the Service Center 

sent Claimant a Form UC-997, Request for Information, requesting a copy of her 2012 Schedule 

C form and asking Claimant to call the office within seven days. See C.R. Items 5 and 7.
3

1) A determination that Claimant was ineligible for 

benefits under Section 402(h) of the Law, 43 P.S. § 

802(h), which provides for an exclusion where the 

claimant is engaged in a sideline business;

2) A determination under Section 804(a) of the Law, 43 

P.S. § 874(a), establishing a fault overpayment of 

benefits in the amount of $7,037;

3) A determination under Section 801(b) of the Law, 43 

P.S. § 871(b), that Claimant would be penalized 30 

weeks of benefits as a result of the fault overpayment;

4) A determination denying Claimant EUC benefits 

under Section 4001(b) of the EUC Act, 26 U.S.C. § 

3304 note;

5) A determination establishing a $315 fraud

overpayment under Section 4005 of the EUC Act, 26 

U.S.C. § 3304 note;

6) A determination under Section 801(b) of the Law, 43 

P.S. § 871(b), and Section 4005 (a)(1) of the EUC 

Act, that Claimant would be penalized 4 weeks of 

benefits as a result of the EUC overpayment.

C.R., Item 9.4 The notices all stated that the last day Claimant could appeal the 

determinations was April 10, 2014. On the same day the six notices were mailed, 

 

4

The first three notices pertain to Claimant’s eligibility and receipt of benefits under the 

Pennsylvania Unemployment Compensation Law and form the basis for Appeal No. 14-09-B5592. The remaining three notices pertain to Claimant’s eligibility and receipt of emergency 

unemployment compensation benefits under the EUC Act and form the basis for Appeal No. 

EUC-14-09-B-5587. The first four of these notices are in the Certified Record at Item 9. 

Apparently, due to the fact that the fifth and sixth notices were vacated by the Service Center via 

its March 31, 2014 letter to Claimant and were later reissued on April 1, 2014, only the reissued 

determinations are in the certified record at Item 11. However, reference to the original fifth and 

sixth notices can be seen in the claim records. See C.R. Item 1. To avoid confusion and for ease 

of reference, we will designate these determinations in the order they appear above along with 

(Footnote continued on next page...)
4

Claimant allegedly faxed a copy of her 2012 Schedule C to the Service Center.

5

 

Then, on March 31, 2014, the Service Center sent Claimant a Letter to Vacate 

Determination, which stated that:

WHEREAS, on 3/26/2014, the [Service Center] issued a 

Notice of Determination under Section 4005(A)(B)(C), 

801(B) of the Pennsylvania Unemployment 

Compensation Law in the case of ERICA VICTORIA . . .

and

WHEREAS, the [Service Center] wishes to review its 

determination; and

HEREBY, the [Service Center] vacates the Notice of 

Determination shown above and, if necessary, another 

determination will be issued pending a further review of 

all facts ascertained in this case.

C.R. Item 10.6 The very next day, the Service Center issued two revised 

determinations.7 The last day to take an appeal from these revised determinations

was April 16, 2014.

_____________________________

(continued...)

the date mailed, e.g., the first through the fourth followed by the date they were mailed, March 

26, 2014; and the fifth and the sixth followed by the date they were reissued, or April 1, 2014.

5 While we could not find this document in the certified record, the claim records related to 

her EUC claim show the following notations:

140326 SGA CLM TO FAX SCHEDULE C

140326 SGA VERIFIED CLMT WHO GAVE ME PERMISSION 

TO S/W PAT DIMM, FRIEND

C.R. Item 1.

6 Although Pennsylvania’s Unemployment Compensation Law does not have a Section 

4005, the Board argues that only the fifth and sixth notices of determination, relating to 

Claimant’s EUC claim, refer to Section 4005 of the EUC Act, 26 U.S.C. § 3304 note, and, 

therefore, are the determinations referred to in the March 31, 2014 Letter to Vacate.

7

These notices determined that a fraud overpayment in the amount of $316 had been 

established under Section 4005 of the EUC Act, 26 U.S.C. § 3304 note, and imposed four 

penalty weeks under Section 801(b) of the Law, 43 P.S. § 871(b), with respect to Claimant’s 

(Footnote continued on next page...)
5

On April 30, 2014, after both appeal deadlines had passed, a Notice of 

Financial Determination Revised was issued, notifying Claimant that she was 

financially eligible for benefits with respect to her original claim for 

unemployment compensation benefits filed May 19, 2013.8

Claimant filed appeals from the March 26, April 1, and April 30, 2014 

notices of determination on May 30, 2014. At the hearing before the referee,

Claimant appeared pro se with an interpreter, and with her friend, Patricia Dimm, 

whom Claimant had turned to for assistance sometime after receiving the notices. 

Claimant sought to elicit testimony from Ms. Dimm because “she was the one who 

helped me through the process.” Hearing of July 14, 2014, Notes of Testimony 

(N.T.) at 1. However, the referee did not allow Ms. Dimm to testify, explaining 

that:

I cannot have somebody testify who just helped you 

through the process. It would have to be a witness who 

would be able to offer relevant firsthand testimony to the 

facts of this case.

. . . .

_____________________________

(continued...)

EUC claim, the only change being an increase in the amount of the overpayment, from $315 to 

$316. C.R. Item 11.

8

This revised notice states:

This financial determination alone does not entitle you to benefits. 

A review of your employment history and present status must also be 

made to determine whether you meet all of the eligibility requirements 

specified in the Law.

See, Claimant’s Petitions for Appeal from Determination with Attachments, dated 5/30/14, C.R. 

Item 13. Claimant attached this notice to her petition for appeal, it is not elsewhere in the 

certified record. This revised notice informed Claimant that her weekly benefit rate was $271; 

that her benefit year began May 19, 2013, and ended May 17, 2014; that her maximum benefit 

entitlement was $7,046; and that the last day to timely appeal this determination was May 15, 

2014. Claimant’s appeal from this determination was designated Appeal No. 14-09-B-5580. See 

Hearing of July 14, 2014, Notes of Testimony (N.T.), at 3-4.
6

You can’t have somebody just assist you throughout 

participating in today’s hearing. The issue today deals 

with whether or not you filed a timely appeal. You are 

the party who filed the appeal. Therefore, it is relevant to 

your testimony only here today as to whether or not the 

appeal was filed timely. That would be the only 

testimony that the Referee will be accepting throughout 

today’s hearing.

Id. at 1-2. The referee then informed Ms. Dimm that she was present only as an 

observer, whereupon Ms. Dimm stated that, “I did more than help her through the 

process . . . I don’t know if she knows how to answer the questions, but I didn’t 

help her file the claim. She brought it to me and that’s when I realized it was late 

and I explained and I helped her file the claim that (inaudible). So I don’t know if 

she knows how to answer it fully.” Id. at 2. Through the interpreter, Claimant 

then testified that she filed her appeal late “[b]ecause I did not read English. I did 

not understand. And every time I receive any letter, I (inaudible) her [Patricia 

Dimm] because she’s the one helping me.” Id. at 8. When asked by the referee 

why she did not contact the unemployment compensation office for assistance, 

Claimant testified that she had “no idea if they were able to help me with that” and 

that, “I didn’t know the content of that letter. I thought it was one of those letters 

they send you all the time.” Id. at 8-9. Claimant explained further that:

When I went to see her [Patricia Dimm] . . . she was 

very, very sick and I didn’t want to tell her anything so I 

went to seek some help from my nephew. He speaks 

English and he speaks Spanish. And then he just said 

that the unemployment only - - they were going to pay 

me just $35 more and that was the purpose of the letter. 

And then I asked him do I owe $35 and he did not tell me 

what really is. And then I went to see her [Patricia 

Dimm] and she clarified and told me what was happening 

in my case.

. . . .
7

When my nephew said that I owed $35, I called the 

unemployment team and they say that I was late. 

Something about my appeal. But I did not understand

what they were saying. And that’s the moment when I 

went to see [Patricia Dimm] and then she told me exactly 

what was happening.

Id. at 9. As to each of the appeals, Claimant’s response was the same, that she 

“was ignorant,” that she “didn’t know,” and that she filed late because Ms. Dimm 

“was very sick and I didn’t want to bother her.” Id. at 10.

The referee found that copies of all of the notices were sent to 

Claimant’s last known post office address; that these notices were not returned by 

postal authorities as being undeliverable; that Claimant did not file an appeal on or 

before April 10, 2014 or on or before April 16, 2014; that Claimant did not file her 

appeals until May 30, 2014; and that Claimant “was not misinformed nor in any 

way misled regarding the right of appeal or the need to appeal.” Referee’s 

Decision/Order, Appeal Number EUC-14-09-B-5587, July 16, 2014, Findings of 

Fact Nos. 6-9 at 1-2; Referee’s Decision/Order, Appeal Number 14-09-B-5592, 

July 16, 2014, Findings of Fact Nos. 5-8 at 1-2.9 Thereafter, Claimant appealed to 

the Board, which affirmed both decisions. This appeal followed. 

On appeal to this court, Claimant raises the following issues: 1) 

whether the Letter to Vacate Determination mailed on March 31, 2014, vacated all 

 

9

The record shows that Claimant attempted to appeal the April 30, 2014 Notice of Financial 

Determination along with the March 26 and April 1, 2014 notices, and the referee questioned

Claimant regarding the untimeliness of this appeal. See, N.T. at 8-9. However, the referee never 

made any findings of fact or conclusions of law with respect to this determination, but apparently 

dismissed the appeal, noting on the first page of the hearing transcript that, “14-09-B-5580 (Did 

Not Appeal).” C.R. Item 17. Claimant did not appeal this decision either before the Board or 

this court and acknowledges in her brief that the referee “dismissed [her] appeal of the [April 30, 

2014] Notice of Financial Determination” and that “[that] decision is not at issue on this appeal.” 

Claimant’s Brief at 6. 
8

of the determinations issued on March 26, 2014, because it was vague and lacked 

specificity as to which determination it intended to vacate; 2) whether the March 

31, 2014 Letter to Vacate was so misleading as to constitute a breakdown of the 

administrative process warranting allowance of her nunc pro tunc appeal; 3) 

whether the referee’s refusal to permit Claimant’s witness to testify denied her a 

full and fair hearing; and 4) whether the underlying notice of determination finding 

her ineligible for benefits issued March 26, 2014, was erroneous in light of the 

subsequent April 30, 2014 revised Notice of Financial Determination that Claimant 

was eligible for unemployment compensation benefits under the Law.

In order to reach a proper resolution of the issues before us, we will 

address Claimant’s final issue first. Claimant argues that the revised determination 

issued on April 30, 2014, in which she was determined to be eligible for benefits,

in essence, superseded the previous determinations sent on March 26 and April 1, 

2014, which had determined her ineligibility and established the overpayments and 

assessed penalty weeks. She contends that the Service Center intended to vacate 

those adverse determinations when it sent out its March 31 letter and that even if, 

as the Board contends, it was only intended to vacate the determinations 

establishing a fraud overpayment (fifth notice issued 4/1/14) and assessing penalty 

weeks (sixth notice issued 4/1/14) pursuant to the EUC Act, because it was 

misleading and confusing, it constitutes a breakdown in the administrative process 

warranting her late appeal. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 

1130 (Pa. 1996). As to the merits of her appeal, Claimant avers that because she 

provided the Service Center with her 2012 Schedule C to support that her selfemployment qualified as a sideline business, and the unemployment authority 

apparently agreed that she was indeed eligible for benefits as evidenced by the 
9

revised determination, then it follows that the prior determinations are invalid and 

any attempts to collect a fault overpayment “are without any legal foundation.” 

Claimant’s Brief at 17. After review, we are constrained to agree.

Section 501(e) of the Law provides that a claimant must appeal a 

determination within fifteen calendar days after it was mailed to her last known 

post office address or such determination will be final. 43 P.S. § 821(e). The 

Service Center may issue a revised notice of determination within the appeal 

period if no appeal has been filed. Garza v. Unemployment Comp. Bd. of Review, 

669 A.2d 445, 447 (Pa. Cmwlth. 1995). The Service Center may also, in the 

alternative, issue a letter vacating the initial determination within the fifteen day 

appeal period if no appeal has been filed, and thereafter, issue a revised 

determination. Larry Pitt & Assoc., P.C. v. Unemployment Comp. Bd. of Review, 

712 A.2d 827, 829 (Pa. Cmwlth. 1998). However, the Service Center may not 

issue a revised notice of determination after the appeal period has expired; the 

determination becomes final and the Board loses jurisdiction to consider the 

matter. Pennsylvania Tpk. Comm’n v. Unemployment Comp. Bd. of Review, 991 

A.2d 971, 974 (Pa. Cmwlth. 2009) [citing Vereb v. Unemployment Comp. Bd. of 

Review, 676 A.2d 1290 (Pa. Cmwlth. 1996)]. The statutory time limit for filing an 

appeal is mandatory in the absence of fraud or manifestly wrong or negligent 

conduct of the administrative authority, and the claimant bears a heavy burden to 

justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Comp. 

Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). A nunc pro tunc appeal 

may be allowed where extraordinary circumstances involving fraud, some 

breakdown in the administrative process or non-negligent circumstances caused the 

delay. Cook, 671 A.2d at 1131.
10

In this case, apparently because “multiple employers” were indicated 

and because the Service Center did not have sufficient information “to show 

whether claimant’s earnings in regular employment exceeded the net profit from 

the self-employment,” Claimant was initially determined to be ineligible for 

benefits pursuant to Section 402(h) of the Law. First Notice, issued 3/26/14, C.R. 

Item 9. After issuing the March 26 determinations, the Service Center then sent 

Claimant the letter to vacate followed by the April 1 determinations. 

We find persuasive a recent decision by this court, Walsh v. 

Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1248 C.D. 

2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374. There, the 

claimant received an initial determination that she was ineligible for benefits and 

filed an appeal. Thereafter, based on information received from employer only, the 

service center issued a second determination that she was ineligible pursuant to 

Section 402(b) of the Law, 43 P.S. § 802(b). That determination indicated that 

claimant voluntarily quit her employment for unknown reasons and that there was 

insufficient information to determine whether she had necessitous and compelling 

reasons to do so. The claimant did not appeal the second determination, based on 

her understanding that all issues relating to her eligibility would be resolved in her

appeal from the first determination. After a hearing, the referee reversed the first 

determination, and in his decision, addressed not only whether claimant was 

ineligible for failing to follow reporting requirements (which was the specific issue 

in that appeal), he also addressed the mistakes made by the service center and the 

circumstances of claimant’s separation from her employment (issues seemingly

related to the second determination). Employer did not appeal; however, when the 

claimant’s benefits stopped as a result of her failure to appeal the second 
11

determination, she filed a late appeal. The referee dismissed the claimant’s appeal 

as untimely and the Board affirmed, reasoning that it was the claimant’s own 

misunderstanding that caused her to file a late appeal. On appeal to this court, the 

claimant argued that:

the manner in which the Service Center handled her 

separation from employment with Employer caused 

confusion regarding the necessity to appeal the second 

notice of determination . . . [and that] the mishandling of 

her unemployment compensation matter constituted a 

breakdown in the administrative process, such that nunc 

pro tunc relief is warranted.

Id. slip op. at 10; at *13-*14. We agreed with the claimant, concluding that she 

had properly reported her temporary, part-time employment with employer and 

that the service center had mistakenly attributed these earnings to multiple 

employers, thus resulting in the initial determination of ineligibility. The service 

center “then compounded the mistake, when . . . it issued the second . . . 

determination, finding Claimant to be ineligible for yet another improper reason.” 

Id. slip op. at 12; at *15. We reasoned that as a result of the service center’s 

mishandling of her claim, the claimant was understandably confused which led to 

“misstep[s] in her attempts to navigate her way through the Service Center’s 

errors.” Id. slip op. at 13; at *18-*19. We therefore held that these circumstances 

constituted a breakdown in the administrative process and allowed the claimant’s 

untimely appeal.10

 

10 See also Carr v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 662 C.D. 2014, 

filed December 19, 2014), 2014 Pa. Commw. Unpub. LEXIS 728 (the Department’s conduct 

contributed to employer’s confusion, as its unexplained failure to respond to employer’s timely 

appeal from claimant’s earlier application for benefits coupled with the timing of claimant’s 

attempts to re-open an earlier claim and also simultaneously apply for workers’ compensation 

(Footnote continued on next page...)
12

Similarly, here we believe that the Service Center’s mishandling of 

her claim constitutes a breakdown in the administrative process warranting a nunc 

pro tunc appeal. However, despite the fact that both appeal periods had expired on 

April 10 and 16, respectively, the Service Center, without apparent authority to do 

so, see, e.g., Pennsylvania Turnpike Commission, issued the revised determination 

now holding Claimant was not ineligible for benefits under Section 402(h) of the 

Law. 

Thus, while it would appear that denial of the EUC claim and related 

penalty week and fraud overpayment assessments remain extant, the current status 

of Claimant’s claim for unemployment compensation benefits is entirely unclear.

Accordingly, we vacate the orders of the Board and remand for a 

determination and/or clarification as to which benefits have been denied and which 

have been granted along with the status of any fraud overpayment and penalty 

week determination, and for an appeal, nunc pro tunc, from any determinations as 

to which Claimant is aggrieved.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge

Judge McCullough concurs.

_____________________________

(continued...)

benefits, all contributed to the situation confronting employer and constituted sufficient grounds 

to allow nunc pro tunc relief, citing both Walsh and Boettcher v. Unemployment Compensation 

Board of Review, (Pa. Cmwlth., No. 549 C.D. 2013, filed October 21, 2013), 2013 Pa. Commw. 

Unpub. LEXIS 778).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica Victoria, :

Petitioner :

 :

v. : Nos. 1809 and 1810 C.D. 2014

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 14th day of October, 2015, the orders of the 

Unemployment Compensation Board of Review in the above-captioned matter 

with respect to Appeal No. EUC-14-09-B-5587 and Appeal No. 14-09-B-5592, are 

hereby VACATED. We REMAND the matter to the Board for further proceedings 

consistent with this opinion.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge