IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 98 C.D. 2021

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). Upon 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 of 
2

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 be 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

documentation keeping her out of work until the end of April 2020, which was 

accomplished via FMLA1leave. 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 Board 

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 telephonic 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 County as employer and testified as 

a witness to the factual circumstances of Employer’s untimely appeal. Id. at 201a. 

Lauer confirmed that the referee’s August 10, 2020, decision and order was sent to 

Employer and to himself as solicitor at the Northampton County Courthouse, which 

is the correct address. Id. at 205a. The 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 there is a process in the solicitor’s office 

where staff can reach him with time-sensitive 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-09a.

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 cause. 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 Pennsylvania’s Unemployment 

Compensation Law3in effect at the relevant time provided that a party had 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 findings 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 the time limit for a statutory 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 wrongful 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., 671 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, 

718 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 ten 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 claimant’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 employer’s untimely appeal. Id. at 299 & 

n.2. This Court granted relief upon finding the circumstances amounted to nonnegligent conduct on counsel’s part. Id. at 300.

By contrast, when an appellant’s counsel’s failure to file a timely appeal 

with the administrative tribunal is due to inadvertence and lacks any indicia of nonnegligent 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) (claimant’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 (American Nickeloid Co.), 426 A.2d 205 
6

(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 question, 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 nonnegligent circumstances. Employer avers that the COVID-19 pandemic resulted in 

mail delays and Employer did not 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. However, 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 returned to the office on August 28th

or 31st 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 for benefits based on the referee’s decision. Id. at 7-8.

Claimant responds that Employer’s reference 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 failure of 

both of Employer’s offices to alert Lauer of the need to appeal while he was still on 
7

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 nonnegligent 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 referee’s decision six days before the 

appeal period lapsed. R.R. at 206a. 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, Employer has failed to show 

that non-negligent circumstances caused the lateness. Lauer acknowledged that due 

to a breakdown in office procedure, he did not learn of the referee’s decision until 

after he returned to the office from vacation on August 28th or 31st, 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 supported by the evidence, is 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 truly non-negligent reasons why those appeals were untimely. 

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 mandatory 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 FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 98 C.D. 2021

Respondent :

O R D E R

AND NOW, this 10th day of May, 2022, the January 8, 2021, Order of 

the Unemployment Compensation Board of Review is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge