IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Guy, : Petitioner :

:

v. : No. 479 C.D. 2019

: Submitted: September 6, 2019

U nemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROBERT SIMPSON, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE SIMPSON FILED: November 13, 2019

Michael Guy (Claimant), representing himself, petitions for review

from an order of the Unemployment Compensation Board of Review (Board) that

affirmed a referee’s decision dismissing his appeal as untimely under Section 501(e)

of the Unemployment Compensation Law (Law). 1 Claimant filed his appeal from

two notices of determination a month late. Upon review, we affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §821(e)

. Section 501(e) of the Law provides:

Unless the claimant or last employer or base

- year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department

under section five hun dred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or 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 set forth in such notice, shall be final and

comp ensation shall be paid or denied in accordance therewith.

43 P.S. §821 (e) (emphasis added).2 I. Background

Claimant was laid off from his seasonal employment with a landscaping

business (Employer) at the end of December 20 1 7 for lack of work . He applied for

and began receiving unemployment compensation (UC) benefits in January 2018.

Employer challenged Claimant’s continuing receipt of UC benefits after discovering

he received benefits after the date it recalled him to seasonal employment, starting

March 1, 2018

. Employer asserted Claimant voluntarily quit when he refused its

recall to work

.

After investigating the matter, o n October 22, 2018, the Department of

Labor and Industry ( Department ) issued two notice s of determination , one

disqualifying Claimant from UC benefits based on a voluntary quit, and the other

finding a fault overpayment of benefits from March 17 through June 23, 2018

, and

imposing penalties (determination s )

. The determination s w ere premised on Claimant’ s

f ai lure to return to his prior seasonal employment , beginning in March 2018. Copies

of the determination s w ere mailed to Claimant’s last known address and not returned

as undeliverable. Relevant here, t he determination s stated the final day to appeal was

November 6, 2018. Claimant appealed both determination s in the same appeal ;

h owever, he did not mail his appeal until a month later, on December 6, 2018

.

A referee conducted a hearing . As to the t imeliness of his appeal,

Cla imant testified he appealed the determination s “as soon as [he] realized [he]

needed to

. . . .” Referee’s Hr’g, Notes of Testimony (N.T.) , 12/31/18, at 5. He

explained his appeal was untimely because he was preoccup ied with his current

employment and “was already working ... just busy.” Id. He was also “shock[ed]”3

to recei ve the determination s as he believed he was “done with unemployment” since

he resumed working. Id. Additionally, Claimant stated his wife opened the

determination s . The referee dis missed Claimant’s appeal as untimely under Section

501(e) of the Law , 43 P.S. §821(e)

. Claimant appealed to the Board

.

The Board concluded Claimant’s explanation did not meet the criteria

for an exception to the 15

- day appeal period, i.e. , the delay w as not caused by fraud,

a breakdown in the system, or non

- negligent conduct. Bd. Op., 2/26/19, at 2.

Accordingly

, the Board affirmed the referee’s dismissal of Claimant’s appeal under

Section 501(e) of the Law

. Claimant now petitions for review before this Court.

II. Discussion

On appeal, 2 Claimant argues he “did not receive [the determination s ] in

a manner that would have made it possible for [him] to timely appeal the decision

made.” Pet’r’s Br. at 8. Cl aimant asserts his wife found the unopened determination s

on November 22, 2018, which resulted in his untimely filing on December 6, 2018.

Claimant did not expect correspondence from the Department concerning his UC

benefits because he believed he previou sly satisfied the eligibility requirements.

These assertions, while raised in Claimant’s uncounseled brief, were

not comprised within his petition for review. Yet , this Court will decline to find

waiver if, based on the certified record, we are able to address an issue “not within

2 Our review is limited to determining whether the findings of fact were supported by substantial evidence, whether errors of law were committed, or whether cons titutional rights were

violated. Carney v. Unemployment Comp. Bd. of Review , 181 A.3d 1286 (Pa. Cmwlth. 2018).4

the issues stated in the petition for review but included in the statement of questions

involved and argued in a brief.” Pa. R.A.P. 1513, Note

.

Nevertheless

, C laimant does not prevail on the issue of timeliness.

Pursuant to Section 501(e) of the Law, a claimant has 15 days to appeal the

Department’s determination. 43 P.S. §821(e). Failure to file a timely appeal under

Section 501(e) of the Law results in a ju risdictional defect. Carney v. Unemployment

Comp. Bd. of Review , 181 A.3d 1 2 86 (Pa. Cmwlth. 2018). This statutory deadline

“cannot be extended as a matter of grace or mere indulgence.” Id. at 1288.

I n limited circumstances, the Board may consider an untimely appeal

nun c pro tunc , or “now for then.” Hessou v. Unemployment Comp. Bd. of Review

, 942 A.2d 194 (Pa. Cmwlth. 2008). The burden of ju stifying an untimely appeal is

“extremely heavy.” Carney , 1 81 A.3d at 1288. The claimant must demonstrate the

delay “resulted from extraordinary circumstances involving fraud, a breakdown in

the administrative process, or non

- negligent circumstances relating to the claimant

himself.” Id

. ; se e also Ferraro v. Une mployment Comp. Bd. of Review , 464 A.2d

697 (Pa. Cmwlth. 1983) ( reasoning mere hardship is not enough).

Here, Claimant does not dispute receipt of the determination s or allege

fraud or a breakdow n in the administrative process. Instead, he indicates his delay

resulted from non

- negligent circumstances. He maintains he did not expect

correspondence f

rom the Department at that time because he was occupied with new

employment and believed he satisfied the requirements to receive UC benefits. He

further argues he was not aware of the Department’s decision until his wife5

discov ered the unopened determination s 16 days after the appeal deadline. This

Court consistently rejects similar arguments.

In Carney , the claimant’s appeal of the Department’s dete rmination

discontinuing his UC benefits was untimely by three days. The claimant admitted

to having read the determination, but claimed he failed to note the appeal deadline

due to personal circumstances, which included, becoming a father and starting a n ew

business. The Board affirmed the referee’s dismissal of the claimant’s appeal. On

appeal, we concluded the failure to notice an appeal deadline was a legally

insufficient justification for an untimely appeal. We similarly held the demands,

pressures, and distractions of his personal life did not excuse an untimely filing.

By contrast, Claimant’s appeal here was untimely by a month. Even

after he admitted his wife discovered the unopened determination s on November 22,

2018, he did not file an appeal for another 14 days. Notably, Claimant offers no

excuse for the delay between November 22 (discovery date) and December 6 (filing

date). A claimant has a duty to exercise some diligence concerning his or her own

UC determination. Bennese v. Unemploymen t Comp. Bd. of Review (Pa. Cmwlth.,

No. 2279 C

. D

. 2007, filed Sept. 24, 2008), 2008 WL 9403206 (unreported)

. 3

Also, as in Carney

, Claimant’s failure to open his mail and resulting

unawareness of the determination until after the appeal deadline passed, 4 is an

3 This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).

4 To the extent Claimant avers his delay resulted from his wife opening his mail, his argument is unavailing . A household member’s negligence in failing to inform a claimant about receipt of a6

insufficient excuse for his un timely appeal. Carney ; see also Ferraro (explaining an

untimely appeal is not justified based on a claimant’s own negligence). A claimant’s

failure to read a determination, Reed v. Unemployment Compensation Board of

Re view

, 406 A.2d 852 (Pa. Cmwlth. 1979), or to do so carefully, constitutes

negligence “that does not warrant nunc pro tunc relief.” DiBello v. Unemployment

Comp. Bd. of Review , 197 A.3d 819, 822 (Pa. Cmwlth. 2018).

Claimant’s perceived surprise as to the status of his UC benefits and

distraction with his new job do not constitute “extraordinary circumstances” for

which an untimely appeal may be justified. 5 Carney , 181 A.3d at 1288.

UC determination or its contents is alone insufficient to justify an untimely appeal. See Bennese (claimant’s contradictory testimony that mother either did not inform her of or open determination

while she attended school out

- of

- state, was insufficient to justify an untimely a ppeal ); see also Guat Gnoh Ho v. Unemployment Comp. Bd. of Review , 525 A.2d 847 (Pa. Cmwlth. 1987) (claimant was not justified in filing untimely appeal without taking further action after husband, a non

- English speaker, notified her of determination, but not its contents, while she was out of the country ).

5 Further, Clai mant should have been aware that he was not entitled to continuing UC benefits following his refusal of Employer’s recall to seasonal employment . At the referee’s hearing, C laimant pres ented testimony that he was laid off due to lack of work in December 2017.
However, Claimant admitted he receiv ed a written offer to return to work from Employer for

March 1, 2018. Referee’s Hr’g

, Notes of Testimony (N.T.) , 12/31/18

, at 6; see also Certified

Record (C.R.)

, Item No. 5

, at 7 (Employer Separation Information; written call

- back notice to
Claimant). He never returned to work with Employer, and he found other employment. N.T. at 6. Additionally

, Employer ’s witness testified that in Mar ch 20 18, and several times during the snow removal season, it contacted Claimant to return to work, yet, he was unresponsive. N.T. at 7. A claimant may only maintain eligibility for UC benefits where he shows good cause for refusing an employer’s offer of suitable work. Rising v. Unemployment Comp. Bd. of Review

, 621 A.2d 1152 (Pa. Cmwlth. 1993). T he Department issued a determination revok ing a portion of

Claimant’s UC benefits from the March 2018 call

- back date until June 2018, as Claimant faile d to

a ccept Employer’s offer to return to employment. See C.R. , Item No. 7, at 4 (Determination)

.7 Therefore, we conclude Claimant’s absorption with his new job,

un awareness regarding his UC benefits status, and his wife discovering mail on his

behalf, are legally insufficient reasons to excuse his untimely appeal. Claimant failed

to shoulder his heavy burden to prove that he was entitled to an appeal nunc pro tunc

.

III. Conclusion

For the foregoing reasons, we affirm the Board’s dismissal of

Claimant’s appeal.

_______________________________ ROBERT SIMPSON, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Guy, : Petitioner :

:

v. : No. 479 C.D. 2019 Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW , this 13 th day of November 2019, the order of the

U nemployment Compensation Board of Review is AFFIRMED

.

_________________________________ ROBERT SIMPSON, Senior Judge