IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd J. Morris

, : CASES CONSOLIDATED

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No s

. 431

- 432 C.D. 2023

Respondent : Submitted: July 5, 2024

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: August 20, 2024

Todd J. Morris (Claimant) petitions this Court

, pro se

, for review of the

Unemployment Compensation (UC) Board of Review’s (UCBR) February 7, 2023

orders affirming the Referee’s dec i sions that dismissed his appeals as untimely. 1 The

sole issue before this Court is whether the UCBR erred by dismissing Claimant ’ s

appeal s as untimely. After review, this Court affirms.

On February 4 , 2021, the Department of Labor and Industry

(Department) issued a Notice of Determination to Claimant granting Claimant UC

benefits

, but reducing his eligibility for benefits by $503 .00 per week under Section

1 Claimant appealed from two separate Department of Labor and Industry determinations.

T he first decision concerned his eligibility for UC benefits, and the second decision concerned his

non

- fault overpayment

. The Referee held one hearing for both docket numbers

, but issued two

near ly identical decisions. The UCBR also issued two separate

, but near ly identical decisions. By August 18, 2023 Order, this Court granted the UCBR’s Application for Relief seeking to

consolidate the cases.2

402(h) of the UC Law (Law)

. 2 See Cer ti fied R ecord (C.R.) at 1 22

- 124

. On February

8, 2021, the Department issued a Notice of Determination to Claimant establishing

a $7

, 106.00 non

- fault overpayment of UC benefits pursuant to Section 804(b) of the

Law

. 3 See C.R. at 89

- 91

. In February 2021, C laimant received both determina ti on s

(collectively, Determinations) , which notified him that February 19 , 2021

, and

February 23, 2021, respectively, w ere the final day s to file a valid appeal. C laimant

did not appeal from either Determination by the specified appeal date s because his

overpayment was classified as non

- fault

, and he had returned to work by then

. On

June 2, 2021, the Department mailed C laimant a billing statement for his

overpayment. 4 See C.R. at 5. C laimant appealed from the Determinations on August

30, 2021.

The Department assigned the appeals to a Referee who conducted a

hearing o n October 18, 2021. On October 20, 2021, the Referee dismissed

Claimant’s appeals as untimely under Section 501(e) of the Law. 5 Claimant

appealed to the UCBR. On February 7, 2023, the UCBR affirmed the Referee’s

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §
802(h) ( A n employee is ineligible for UC benefits for any period “ [ i ] n which he is engaged in self

employment [.]”).

3 43 P.S. § 874(b)

. 4 The June 2, 2021 billing statement is not in the certified record, nor did Claimant testify
regarding the same. However, it appears that the billing statement is the reason Claim a nt inadvertently believed he was required to pay the overpayment to the Department and the reason

he eventually filed the appeals. As stated by the UCBR in its brief: “While claimants are not
required to repay a non

- fault overpayment, nothing prohibits the Department from encouraging
voluntary repayment so that funds will be available to the claimant when needed in the future.
This billing statement was not a ‘ notification of [Claimant’s] requirement to repay. ’” U C BR Br.

at 11 n.8 (quoting Claimant’s Br. at 8) (emphasis added)

.

5 43 P.S. § 821(e)

. Effective July 24, 2021, the Act of June 30, 2021 , P.L. 173, amended
Section 501(e) of the Law to increase the time to file a n appeal from a UC decision from 15 to 21
days. However, at the time of the Department’s Determination s in the instant case, Section 501(e)

of the Law still required a party to file an appeal within 15 days.3

decisions. Claimant filed a Request for Reconsideration , which the UCBR denied.

Claimant appealed to this Court. 6

Initially,

[a] t the time of the . . . [D] etermination [s] in this case, Section 501(e) of the Law required that a claimant appeal a Department determination within 15 days after the notice

was mailed to the claimant ’ s last known post office

address. 43 P.S. § 821(e). [This Court] ha [s] previously

held that the 15

- day period “is mandatory and subject to strict application.” Vereb v. Unemployment Comp. Bd. of

Rev. , 676 A.2d 1290, 1293 (Pa. Cmwlth. 1996). If an appeal from a Department determination is not filed within

the 15

- day period, the determination become s final, and the [UCBR] does not have the requisite jurisdiction to

consider the merits of the matter. Id

.

Walthour v. Unemployment Comp. Bd. of Rev. , 276 A.3d 837, 842 (Pa. Cmwlth.

2022); see also Carney v. Unemployment Comp. Bd. of Rev.

, 181 A.3d 1286, 1288

(Pa. Cmwlth. 2018) (“Failure to file a timely appeal as required by Section 501(e)

of the [] Law is a jurisdictional defect.”); Russo v. Unemployment Comp. Bd. of Rev.

, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010) (“A statutory appeal period is mandatory

and may not be extended as a matter of grace or mere indulgence.”).

However, “[a] n untimely appeal may be permitted in limited

circumstances. ” Walthour , 276 A.3d at 842. T his Court has explained,

[a] n appeal nunc pro tunc is only warranted

. . . in extraordinary circumstances “involving fraud or some

breakdown in the court ’ s operation,” or where the delay is caused by non

- negligent circumstances either by the claimant or a third party. Cook v. Unemployment Comp.

6 This Court’s “‘review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev [

. ], 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev. , 197 A.3d 842, 843 n.4 (Pa. Cmwlth.

2018).4 Bd. of Rev.

, . . . 671 A.2d 1130, 1131 ( [Pa.] 1996) (internal quotations omitted) (quoting Bass v. C [ ommonwealth ]

, . . . 401 A.2d 1133, 1135 ( [Pa.] 1979)). The Pennsylvania Supreme Court characterized administrative breakdown as occurring when “an administrative body acts negligently, improperly [,] or in a misleading way.” Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Rev.

, . . . 746 A.2d 581, 584 ( [Pa.] 2000). Where non

- negligent circumstances cause the untimeliness of an appeal

, the appeal must be filed within a short period of time after learning of the untimeliness

. Cook , 671 A.2d at 1131. It

is well [ ] settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. Unemployment Comp. Bd. of

Rev.

, . . . 645 A.2d 447, 449 ( [Pa. Cmwlth.] 1994).

Harris v. Unemployment Comp. Bd. of Rev ., 247 A.3d 1223, 1229

- 30 (Pa. Cmwlth.

2021).

In the instant matter, Claimant argue s that he did not timely appeal from

the Determinations because he was originally notified that he did not have to re pay

the non

- fault overpayment. Upon later being notified otherwise, Claimant filed his

appeal. Based on the above, the UCBR concluded:

[C] laimant did not appeal by [ February 19, 2021, and ] February 23, 2021, [ respectively, ] because his overpayment was classified as non [

- ] fault and then he returned to work, neither of which justifies a late appeal. Further, soon a ft er June 2, 2021, [] [C] laimant received a billing statement for his overpayment, but s ti ll did not file

an appeal for nearly two months, nega ti ng whatever jus tif ica ti on he would have initially had. [ 7 ]

7 This Court reiterates, the Department issued Claimant notice of a non

- fault overpayment

. Section 804 (b)(1) of the Law provides:

Any person who other than by reason of his fault has received with
respect to a benefit year any sum as compensation under [the Law]

to which he was not entitled shall not be liable to repay such sum
but shall be liable to have such sum deducted from any future
compensation payable to him with respect to such benefit year, or5

C.R. at 1 15

. This Court finds no error in the UCBR’s conclusion.

Because Claimant filed his appeal s from the Determinations over six

months after the appeal deadline s , and the late appeal s w ere not caused by fraud, a

breakdown in the administrative process, or by non

- negligent conduct , the UCBR

did not have jurisdiction to consider the merits of the matter s . Accordingly, the

UCBR properly dismissed Claimant’s appeals as untimely.

For all the above reasons, the UCBR’s order s are affirmed.

___________________________ ______ ANNE E. COVEY, Judge

the three

- year period immediately following such benefit year, in
accordance with the provisions of this paragraph.

43 P.S. § 874(b) (1) (emphasis added)

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd J. Morris, : CASES CONSOLIDATED

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No s . 431

- 432 C.D. 2023

Respondent :

O R D E R

AND NOW, this 20 th day of August , 20 2 4

, the Unemployment

Compensation Board of Review’s February 7, 2023 orders are affirmed.

___________________________ ______ ANNE E. COVEY, Judge