IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Famatta M. Gwee, :

:

Petitioner :

:

v. : No. 2429 C.D. 2014

: No. 2437 C.D. 2014

: Submitted: November 6, 2015

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: December 30, 2015

Famatta M. Gwee (Claimant) petitions this Court for review of two

December 2, 2014 orders of the Unemployment Compensation Board of Review 

(Board) dismissing her appeals as untimely pursuant to Section 502 of the 

Unemployment Compensation Law (Law).1 We affirm. 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822. 

Section 502 states, in pertinent part:

[T[he parties and their attorneys or other representatives of record 

and the department shall be duly notified of the time and place of a 

referee’s hearing and of the referee’s decision, and the reasons 

therefor, which shall be deemed the final decision of the board, 

(Footnote continued on next page...)
2

On August 12, 2014, following hearings at which both Claimant and 

an unemployment compensation claims examiner testified, the Referee issued two 

decisions that affirmed and modified Notices of Determination mailed on July 11, 

2014. (Certified Record (R.) Item 13, Referee’s Decisions/Orders.) The Referee: 

(i) denied Claimant unemployment compensation benefits under Section 401(c) of 

the Law, 43 P.S. §801(c), for benefits paid for weeks ending July 6, 2013 through 

December 28, 2013,

2

 imposed a fault overpayment under Section 804(a) of the 

Law, 43 P.S. §874(a), and assessed 28 penalty weeks under Section 801(b) of the 

Law, 43 P.S. §871(b); and (ii) denied Claimant emergency unemployment 

compensation benefits provided under the Emergency Unemployment 

Compensation Act of 20083(EUC Act) for weeks ending January 7, 2012 through 

June 23, 2012, and January 5, 2013 through May 11, 2013, assessed a fraud 

overpayment under Section 4005(a) of the EUC Act in the amount of $11,213, and 

 

(continued...)

unless an appeal is filed therefrom, within fifteen days after the 

date of such decision the board acts on its own motion, to review 

the decision of the referee...

43 P.S. §822. 

2

The referee determined that although Claimant was informed, prior to filing for benefits, by the 

PA UC Handbook to report all work and earnings, she filed for and received a total of $6,838 in 

unemployment benefits to which she was not entitled by consistently failing to report her 

employment with Multicultural Community Family Services-PA and earnings therefrom. 

(Record (R.) Item 13, Referee’s Decision/Orders, Appeal No. 14-09-B-6897, Findings of Fact 

(F.F.) ¶¶3-4.) 

3

Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323, 

Sections 4001-4007, 26 U.S.C. §3304.
3

assessed 46 penalty weeks under Section 801(b) of the Law and Section 4005(a)(1) 

of the EUC Act.4 (Id.) 

Also on August 12, 2014, a copy of each of the Referee’s decisions

was mailed to Claimant at her last known post office address, and there is no 

indication that either was returned by the postal authorities as undeliverable. (R. 

Item 16, Board’s Decisions and Orders, F.F. ¶¶2, 4.) Each of the decisions 

included a notice advising Claimant that she had 15 days within which to file an 

appeal to the Board. (R. Item 13, Referee’s Decisions/Orders.) Thus, in order to 

be timely, Claimant’s appeals of the Referee’s decisions had to be filed on or 

before August 27, 2014. (R. Item 16, Board’s Decisions/Orders, F.F. ¶5.) 

However, Claimant’s appeal was not filed until October 17, 2014.5 (R. Item 14, 

Claimant’s Petitions for Appeal from Referee’s Decisions.) On October 28, 2014, 

the Board advised Claimant in writing that her petitions for appeal appeared to be 

untimely and informed her that, if she believed that her appeals were or should be 

deemed to be timely filed, she must reply in writing and request that a hearing be 

 

4

The Referee stated “[a]fter carefully reviewing the record, the Referee finds that Claimant 

improperly filed a claim for benefits. The record establishes that Claimant was aware of the 

reporting requirements both [from] the PA UC Handbook and secondly after speaking with a 

claims examiner instructing on how to file a claim for benefits.” (R. Item 13, Referee’s 

Decision/Orders, Appeal No. EUC-14-09-B-6914, Reasoning.)

5Claimant’s Petitions for Appeal to the Board correctly recite the date of issuance of the 

Referee’s Decisions/Orders as August 12, 2014 and correctly recite the final date for appeal of 

those decisions as August 27, 2014; however, the Petitions for Appeal also refer to a different 

appeal, identified as Appeal No. 14-09-B-8245, which is the appeal number assigned to an 

appeal, deemed untimely, not from a referee’s determination but from Notices of Determination 

that were issued to Claimant on July 31, 2014. (R. Item 14, Claimant’s Petitions for Appeal 

from Referee’s Decisions w/Attachments; Attachment to Claimant’s Brief at 13.) 
4

held to set forth her reasons why she believed her appeals were timely filed. The 

Board’s letter stated the following, in relevant part:

If you believe that you filed your appeal within the 

fifteen (15) day period or that it should be deemed timely 

for other reasons, you must request in writing that a 

hearing be scheduled to allow you the opportunity to set 

forth your reasons as to why you believe your appeal was 

timely filed. Please mail your request to the Board at the 

above letterhead address. Any such hearing involves 

only the issue of whether the appeal was timely filed. No 

ruling is made on the merits of the case unless the appeal 

is first ruled timely.

(R. Item 15, Board’s Letter on Timeliness) (emphasis in original.) Claimant failed 

to respond to the Board’s letter, and on December 2, 2014, the Board issued two 

Decisions and Orders, each dismissing Claimant’s appeals as untimely under 

Section 502 of the Law, 42 P.S. §822. (R. Item 16, Board’s Decisions and Orders.) 

Claimant filed the instant petitions for review appealing the Board’s orders to this 

Court.6 By Order dated April 8, 2015, this Court granted the Board’s motion to 

consolidate the appeals. 

In these consolidated appeals, Claimant is represented by counsel. 

Claimant does not dispute that she failed to contact the Board to request a hearing. 

Instead, she contends that on August 22, 2014 she timely appealed the Referee’s 

decisions. As purported proof, Claimant attaches to her brief a copy of a referee’s 

decision in a separate appeal from Notices of Determination issued on July 31, 

2014; there, the referee found that Claimant’s appeal from those Notices of 

 

6 Our review of the Board’s decision is limited to determining whether necessary findings of fact 

are supported by substantial evidence, whether errors of law were committed and whether 

constitutional rights were violated. Chishko v. Unemployment Compensation Board of Review, 

934 A.2d 172, 176 n.4 (Pa. Cmwlth. 2007).
5

Determination was filed via fax on August 22, 2014, seven days after the final date 

to file, and was therefore untimely.7 Further, and notwithstanding her contention 

before this Court that she filed a timely appeal from the Referee’s decisions, 

Claimant also asserts that the Board erred in its determination that the Referee’s 

decisions were properly mailed to her last known post office address. Claimant

offers no proof other than to state that she moved to her present address at 32 

Wellington Road, Upper Darby, Pennsylvania in October, 2013; however, both the 

Referee’s decisions mailed August 12, 2014 and the Board’s October 28, 2014 

letter on timeliness were mailed to Claimant at 32 Wellington Road, Upper Darby, 

PA. (R. Item 13, R. Item 15.)

In short, Claimant offers no evidence whatsoever that she filed a 

timely appeal in the matter before us. Her assertion that she filed a timely appeal is 

entirely based on the information contained in a referee’s October 6, 2014 decision 

and order that related solely to a different appeal, in which the referee determined 

that on August 22, 2014 Claimant filed a late appeal from a July 31, 2014 Notice 

of Determination.8 Although Claimant’s Petitions for Review correctly reference 

 

7

The Appeal Number referenced in the Referee’s Decision/Order attached to Claimant’s brief is 

14-09-B-8245. In that matter, the referee noted that Claimant appeared before her and testified 

as to the timeliness of her appeal from notices of determination and the referee concluded that 

the claimant “offered several versions of testimony related to timeliness, specifically that she 

filed a timely appeal on July 12, 2014, that she did not receive the determinations because they 

were mailed to her old address, and finally she had issues with her mail. The Referee rejects the 

claimant’s testimony at the hearing as not credible related to the issue of whether the claimant 

filed a timely appeal or was otherwise prevented from doing so.” (Referee’s Decision/Order 

dated October 6, 2014, Attachment to Claimant’s Brief.) 

8

In its brief, the Board notes that it processed a timely appeal to the referee’s October 6, 2014

decision in Appeal No. 14-09-B-8245 and states that it affirmed the referee in that matter.

(Board’s Brief at 8 n.7.)
6

the Board’s decision numbers in the matter before us and the dates on which those

decisions and orders were entered, Claimant’s brief incorrectly recites as the

“Order in Question” the text of the order issued by the referee on October 6, 2014

in the separate appeal that is not before this Court. (Claimant’s Brief at 3.)

Section 502 of the Law specifically provides that “[t]he referee’s 

decision, and the reasons therefore...shall be deemed the final decision of the 

board, unless an appeal is filed therefrom, within fifteen days after the date of such 

decision...” 43 P.S. §822. The referee’s decision becomes final, and the Board 

does not have jurisdiction to consider the matter, if an appeal is not filed within the 

15-day period. Hessou v. Unemployment Compensation Board of Review, 942 

A.2d 194, 197-98 (Pa. Cmwlth. 2008). Section 101.61(a) of the regulations 

promulgated by the Department of Labor & Industry provides:

(a) If an appeal from a decision of the Department or an 

application for further appeal appears to have been filed 

beyond the applicable time limit, the tribunal shall advise 

the appealing party in writing that it appears not to have a 

jurisdiction because of the late filing, and that the appeal 

or application for further appeal will be dismissed 

without a hearing unless the appealing party notifies the 

tribunal in writing within the succeeding 15 days from 

the date of such notice, that he contends the appeal or 

application for further appeal was timely filed and that he 

desires a hearing. If no reply from the appealing party is 

received within the 15-day period, or if the appealing 

party does not request a hearing, the tribunal shall 

dismiss the appeal or application for further appeal. 

34 Pa. Code §101.61(a). Further, “the Board is without jurisdiction to further 

consider the matter under [S]ection 502, and it is precluded from considering the 

facts underlying the timeliness of appeal unless they are adduced at a hearing on 
7

that issue.” Han v. Unemployment Compensation Board of Review, 42 A.3d 1155, 

1158 (Pa. Cmwlth. 2012).

We conclude that the Board properly determined that Claimant failed 

to request a hearing to offer testimony as to why her appeals were timely or should 

be deemed timely, and that her appeals were properly dismissed. Moreover, given 

Claimant’s reliance on a filing date from a separate and distinct appeal that is of no 

consequence in the matter before us, her assertion that she filed timely appeals is 

totally unsupported and without merit, and dismissal of her appeals as untimely is 

mandated. Accordingly, the Board’s orders are affirmed. 

 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Famatta M. Gwee, :

:

Petitioner :

:

v. : No. 2429 C.D. 2014

: No. 2437 C.D. 2014

: 

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 30th day of December, 2015, the orders of the 

Unemployment Compensation Board of Review in the above-captioned matters are

AFFIRMED.

____________________________________

JAMES GARDNER COLINS, Senior Judge