IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Guy, :

Petitioner :

:

 v. : No. 479 C.D. 2019

: Submitted: September 6, 2019

Unemployment 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 hundred 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 

compensation 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 2017 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, on October 22, 2018, the Department of 

Labor and Industry (Department) issued two notices 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(determinations). The determinations were premised on Claimant’s 

failure to return to his prior seasonal employment, beginning in March 2018. Copies

of the determinations were mailed to Claimant’s last known address and not returned 

as undeliverable. Relevant here, the determinations stated the final day to appeal was 

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

however, he did not mail his appeal until a month later, on December 6, 2018. 

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

Claimant testified he appealed the determinations “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 preoccupied with his current 

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

to receive the determinations as he believed he was “done with unemployment” since 

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

determinations. The referee dismissed 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 was 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 determinations] in 

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

made.” Pet’r’s Br. at 8. Claimant asserts his wife found the unopened determinations

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 previously 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 constitutional 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, Claimant 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 jurisdictional defect. Carney v. Unemployment 

Comp. Bd. of Review, 181 A.3d 1286 (Pa. Cmwlth. 2018). This statutory deadline

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

In limited circumstances, the Board may consider an untimely appeal 

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

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

“extremely heavy.” Carney, 181 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.; see also Ferraro v. Unemployment 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 determinations or allege 

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

resulted from non-negligent circumstances. He maintains he did not expect

correspondence from 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 wife
5

discovered the unopened determinations 16 days after the appeal deadline. This 

Court consistently rejects similar arguments. 

In Carney, the claimant’s appeal of the Department’s determination

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 new 

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 determinations 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. Unemployment 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,4is 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 a 
6

insufficient excuse for his untimely 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 

Review, 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 appeal); 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, Claimant 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, Claimant presented testimony that he was laid off due to lack of work in December 2017. 

However, Claimant admitted he received 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 March 2018, 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). The Department issued a determination revoking a portion of 

Claimant’s UC benefits from the March 2018 call-back date until June 2018, as Claimant failed to 

accept 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, 

unawareness 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 Judge
IN 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 13th day of November 2019, the order of the 

Unemployment Compensation Board of Review is AFFIRMED. 

_________________________________

ROBERT SIMPSON, Senior Judge