IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton , :

Petitioner :

: v. : : Unemployment Compensation : Board of Review , : No. 98 C.D. 202 1

Respondent : Submitted: March 4 , 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED : May 10, 2022

The County of Northampton (Employer) petitions for review of the January 8, 2021, decision and order of the Unemployment Compensation Review Board (Board), which dismissed as untimely Employer’s appeal of the referee’s grant of unemployment benefits to Christine Mohn (Claimant). U pon review, we
affirm.

Factual & Procedural Background

The underlying facts are not in dispute. Claimant worked in the business office of a nursing home owned and managed by Employer . Referee’s
Decision & Order, 8/10/20, at 1; Reproduced Record (R.R.) at 74a. Near the end of March 2020, Employer confirmed multiple positive COVID

- 19 test results of2

residents and employees at the nursing home. R.R. at 74a. On Friday, April 3, 2020, Employer informed Claimant and other office employees that they would b e asked
to work additional hours and assist with residents due to the onset of the COVID

- 19 pandemic. Id

. at 75a. On Monday, April 6, 2020, Claimant called in sick with stomach pain and anxiety. Id . Later that week, she provided Employer with medical
d ocumentation keeping her out of work until the end of April 2020 , which was accomplished via FMLA 1 leave

. Id . As May 1, 2020, neared, Claimant asked Employer if she could work from home due to ongoing concerns about her health
and well

- being. Id

. at 75a. Employer declined to accommodate Claimant’s request and she resigned as of May 1, 2020. Id

.

Claimant applied for benefits , which Employer contested. R.R. at 74a. After a telephonic hearing , during which both sides were counseled, the referee found Claimant eligible for benefits and issued a decision dated August 10, 2020.
Id

. at 74a

- 77a. The decision advised that the last date to file an appeal to the Bo ard was 15 days later , on August 25, 2020. Id . at 74a & 76a. Employer did not file its appeal until September 1, 2020, at which time Employer acknowledged the appeal’s lateness and sought nunc pro tunc relief. Id . at 117a

- 23a

.

A Board

- ordered telepho nic hearing was held on November 16, 2020.
R.R. at 199a

- 212a. Attorney Philip Lauer (Lauer), who at the time was the Northampton County solicitor, represented the C ounty as employer and testified as a witness to the factual circumstances of Employer’s un timely appeal. Id . at 201a. Lauer confirmed that the referee’s August 10, 2020, decision and order w as sent to Employer and to himself as solicitor at the Northampton County Co urthouse, which
is the correct address. Id . at 205a. T he solicitor’s office received and date

- stamped

1 The Family and Medical Leave Act, 29 U.S.C. §§ 2601, 2611

- 2620, 2631

- 2636, 2651

- 2654.3

its copy on August 19, 2020. Id . at 206a. At that time, Lauer was in Maine on a
scheduled vacation. Id

. Lauer stated that t here is a process in the solicitor’s office
where staff can reach hi m with time

- s ensitive or important matters by email or text message when he is away from the office , but that did not happen here ; he admitted he had no explanation why he was not contacted and that he had been “upset” about
it

. Id . at 208a

- 09a

. He returned from his vacation on August 27, 2020, which was a Thursday, but was not back in the solicitor’s office until either the next day, August 28, 2020, or the following Monday, August 31, 2020. Id . He prepared the appeal and it was filed by email on September 1, 2020, by clerical staff in the solicitor’s
office. Id . at 207a

- 0 9 a.

After the hearing , the Board dismissed Employer’s appeal upon finding that its untimeliness was not caused by fraud, a breakdown of the agency’s administrative system, or by a non

- negligent c ause. Board’s Decision, 1/8/21; Certified Record (C.R.) #24. Employer now appeals to this Court. 2

Discussion Sections 501(e) and 502 of Pe nnsylvania’s Unemployment Compensation Law 3 in effect at the relevant time provide d that a party ha d 15 days to appeal a referee ’ s decision to the Board. 43 P.S. § § 821(e), 822 ; 4 see also 34 Pa. Code § 101.82; Hessou v. Unemployment Comp. Bd. of Rev. , 942 A.2d 194, 197 (Pa.

2 Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary finding s of fact are supported by substantial evidence. 2 Pa.C.S. § 704.

3 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § § 751

- 918.10

.

4 Pursuant to Section 5(3) of Act No. 2021

- 30, as of its effective date of July 24 , 2021, the appeal period has been extended to 21 days. See 43 P.S. §§ 821(e), 822

.4

Cmwlth. 2008)

. An appeal filed even one day after the 15

- day appeal period is untimely. Hessou , 942 A.2d at 198. If an appeal is not timely, the referee ’ s decision
becomes final , the Board does not have jurisdiction to consider the matter , and
dismissal is warranted

. Id . at 197

- 98. As t he time limit for a statut ory appeal is mandatory; it may not be extended as a matter of grace or indulgence. Russo v. Unemployment Comp. Bd. of Rev

. , 13 A.3d 1000 , 1003 (Pa. Cmwlth. 2010).

The Board may , however, consider an untimely appeal in limited
circumstances. Hessou , 942 A.2d at 198. In light of the mandatory nature of the statutory time limit for appeals, however, the burden on the appellant is heavy. Id

. “First, [the appellant] can show the administrative authority engaged in fraudulent behavior or manifestly wr ongful or negligent conduct. Second, [the appellant] can show non

- negligent conduct beyond his control caused the delay.” Id . (citation omitted). If an appellant establishes that non

- negligent circumstances caused the delay in filing an appeal, nunc pro tunc relief may be granted as long as the appeal was filed shortly after the lateness was discovered, the time period from the deadline to the appeal was of short duration, and the other side was not prejudiced. Cook v. Unemployment Comp. Bd. of Rev. , 67 1 A.2d 1130 , 1131 (Pa. Cmwlth. 2008)

.

Justifiable non

- negligent conduct in this context may be that of either the appellant or a third party , including the appellant’s counsel

. Cook , 671 A.2d at 1131 (citing Bass v. Commonwealth , 401 A.2d 1133 (Pa. 1979))

. 5 In Bass , the appellant’s counsel prepared appeal documentation within the appeal period and left it with his secretary for in

- person filing on a Friday. 401 A.2d at 1134. The secretary

5 Bass concerned an appeal to the Supreme Court of Pennsylvania from this Court’s decision in a tort claim against the Bureau of Corrections , but it has been cited numerous times in administrative matters. See, e.g. , Cook ; Lajevic v. Dep’t of Transp. , Bureau of Driver Licensing , 71 8 A.2d 371, 373 (Pa. Cmwlth. 1998); Nat’l Rolling Mills v. Workmen’s Comp. Appeal Bd. (Jennings) , 575 A.2d 953 (Pa. Cmwlth. 1990).5

fell ill that day and was unable to return to work until t en days later, during which time the appeal deadline elapsed. Id . Upon her return, the appeal was filed four days late. Our Supreme Court found the circumstances amounted to non

- negligent conduct on the attorney’s part and granted relief. Id . at 1135.

In Perry v. Unemployment Compensation Board of Review , 459 A.2d 1342 (Pa. Cmwlth. 1983), the claimant’s counsel’s law clerk was driving the claimant’s appeal to the post office on the last day for timely filing (a Friday) when
his car broke down. He was unable to reach the post office before it closed and the appeal was filed the following Monday, three days late. Id . at 1343. Relying on
Bass , this Court granted relief, finding the circumstances amounted to non

- negligent conduct on the part of the claim ant’s counsel’s office. Id

. Perry also cited Tony Grande, Inc. v. Workmen’s Compensation Appeal Board (Rodriguez) , 455 A.2d 299 (Pa. Cmwlth. 1983), where the employer’s counsel was hospitalized for cardiac conditions and surgery, which caused the employe r’s untimely appeal. Id . at 299 & n.2. This Court granted relief upon finding the circumstances amounted to non

negligent conduct on counsel’s part. Id . at 300.

By contrast, when an appellant’s counsel’s failure to file a timely appeal
with the adminis trative tribunal is due to inadvertence and lack s any indicia of non

negligent or exigent circumstances, this Court has declined to grant nunc pro tunc relief. See DiJohn v. Unemployment Comp. Bd. of Rev. , 687 A.2d 1213, 1215

- 16 (Pa. Cmwlth. 1997) (claima nt’s counsel appealed to the Commonwealth Court rather than the Board) ; Washington v. Workmen’s Comp. Appeal Bd. (Harrisburg Hosp.)
, 450 A.2d 803, 805 (Pa. Cmwlth. 1982) (claimant’s counsel sent letter to appeal board indicating intent to appeal but never formally filed appeal). In Wertman v. Workmen’s Compensation Appeal Board (Am erican Nickeloid Co.) , 426 A.2d 2056

(Pa. Cmwlth. 1981), the claimant’s counsel dictated the claimant’s appeal and instructed his staff to file it by the deadline. Id . at 206. Counsel’s secretary failed to type or file the appeal and it was filed several weeks late after counsel discovered
the error. Id . This Court declined to extend the exception for administrative breakdown, which pertains to the agency in questio n, to an oversight occurring in the office of the appellant’s lawyer. Id

.

Here, Employer argues that the lateness of its appeal was due to non

negligent circumstances. Employer avers that t he COVID

- 19 pandemic resulted in mail delays and Employer did n ot receive the referee’s decision until August 19,
2020 , nine days after it was mailed on August 10, 2020 ; this left Employer with only six days to evaluate and appeal the decision before the August 25, 2020, deadline elapsed. Employer’s Br. at 6

- 7. Howe ver , Lauer did not see the decision immediately because he was on vacation and his office failed to advise him that the
decision had arrived. Id . at 8. Citing Cook , Employer asserts that it acted shortly
after Lauer discovered the decision when he return ed to the office on August 28 th
or 31 st after his vacation, and that the late filing of Employer’s appeal on September 1, 2020, did not cause Claimant to sustain any prejudice because during the relevant time, she was eligible fo r benefits based on the ref eree’s decision. Id . at 7

- 8. Claimant responds that Employer’s r efer ence to mail delays associated
with the COVID

- 19 pandemic is disingenuous because Employer admits it received the referee’s decision well within the appeal period. Claimant’s Br. at 5. Claimant notes that the decision was mailed to both Employer and to Lauer at the solicitor’s office in the same building, therefore Employer had two opportunities within its offices to ensure a timely appeal. Id . at 8. Claimant maintains that the failur e of both of Employer’s offices to alert Lauer of the need to appeal while he was still on7

vacation , and Lauer’s consequent failure to learn of the need for an appeal until his
return to his office 1

- 3 days after his vacation ended , cannot be characterized as non

negligen t conduct on Employer’s part. Id . at 8

- 9.

We agree with Claimant. Employer’s assertion that pandemic

- related mail delays are at least part of the cause of its untimely appeal fails because Employer acknowledged that it did receive the re feree’s decision six days before the appeal period lapsed. R.R. at 206 a . Even before the pandemic, this Court has held
that while a delay in mail delivery may be the basis for nunc pro tunc relief, the appellant must still show that the delay negated his ability to file a timely appeal. Walker v. Unemployment Comp. Bd. of Rev. , 461 A.2d 346 , 347 (Pa. Cmwlth. 1981)

. Here, while there may have been a pandemic

- related delay in delivery of the referee’s decision, by Employer’s own admission it still had nearly a week after receipt to appeal , and with today’s access to rapid communications technology and online filing, doing so is far easier than in the prior decades out of which the above

cases arose. 6 Beyond Employer’s unavailing allegation that delayed receipt of the referee’s decision contributed to the untimely appeal, E mployer has failed to show
that non

- negligent circumstances caused the lateness. Lauer a cknowledg ed that due

to a breakd own in office procedure , he did not learn of the referee’s decision until after he returned to the office from vacation on August 28 th or 31 st , by which time the appeal was already late. His candidness is commendable , and he did act swiftly upon learning of the problem. However, the facts here do not resemble those in
Bass , Perry , and Tony Grande, Inc. , where filing options were much more limited

6 Moreover, Employer’s appeal, which asserts that the referee’s grant of benefits to Claimant was not su pported by the evidence, i s not particularly complex. See R.R. at 80a

- 82a.8

and the circumstances of counsel or legal staff sustaining an unexpected illness or car trouble constituted tr uly non

- negligent reasons why those appeals were un timely.

Here , the facts as admitted by Employer are analogous to those in
DiJohn , Washington , and Wertman , where untimeliness was due to inadvertence or an avoidable breakdown in counsel’s office procedures. Granting relief under these circumstances would amount to the kind of grace or indulgence that this Court has
found unavailable in the context of a mand atory and jurisdictional deadline. Russo , 13 A.3d at 1003; Hessou , 942 A.2d at 197

- 98. Employer therefore has not shown it
is eligible for nunc pro tunc relief and the Board did not err in dismissing Employer’s untimely appeal from the referee’s decision

.

Conclusion Based on the foregoing discussion, we affirm the Board ’ s order.

__________________________________ CHRISTINE F IZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton, :

Petitioner :

: v. : : Unemployment Compensation : Board of Review, : No. 98 C.D. 202 1

Respondent :

O R D E R

AND NOW, this 10 th day of May , 20 2 2 , the January 8, 2021, Order of the Unemployment Compensation Board of Review is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge