IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev, :

Petitioner :

:

v. : No. 1060 C.D. 2016

: SUBMITTED: December 9, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE HEARTHWAY FILED: March 24, 2017

Danilbek Karmiev (Claimant) petitions pro se for review of an order 

by the Unemployment Compensation Board of Review (Board) affirming the 

decision of a referee, who dismissed Claimant’s appeal of a Notice of 

Determination issued by the Department of Labor and Industry (Department). The 

Board determined that Claimant had failed to file a timely appeal of the 

Department’s determination under section 501(e) 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. § 

821(e).
2

Claimant was employed by and served as a corporate officer for 

MedAlliance Ambulance, LLC (Employer) from October 1, 2012 until September 

30, 2014. (C.R. Item No. 3.) Claimant filed for unemployment compensation 

benefits on October 19, 2014. Claimant collected benefits for the period of 

October 25, 2014 to May 2, 2015. Thereafter, the Department determined that 

Claimant’s position as a corporate officer made him ineligible for benefits under 

section 402(h)2of the Law. Notice of that determination was mailed to Claimant 

on December 4, 2015; the notice stated that the deadline for Claimant to file an 

appeal of the determination was December 21, 2015. (C.R. Item No. 9.)

However, Claimant did not file an appeal until January 31, 2016 (41 

days after the deadline). Claimant asserted he was unable to file a timely appeal 

because he was working in another state from December 18, 2015 until January 22, 

2016. (C.R. Item No. 10.) On February 4, 2016, a notice was sent to Claimant that 

a hearing regarding the timeliness of the appeal was scheduled for February 18, 

2016. On February 10, 2016, Claimant requested a continuance of that hearing, 

indicating that he would be working out-of-state on the hearing date. The hearing 

was rescheduled for February 23, 2016, and an updated notice was mailed to 

Claimant on February 11, 2016. On February 23, 2016, the hearing was held 

before a referee without appearance by Claimant. (C.R. Item No. 13.) The referee 

dismissed Claimant’s appeal as untimely because it was filed after December 21, 

2015. (C.R. Item No. 14.) 

 

2

43 P.S. § 802(h).
3

On February 29, 2016, Claimant appealed the referee’s decision to the 

Board, which remanded the matter to the referee to determine if Claimant had good 

cause for non-appearance at the hearing on February 23, 2016. Claimant testified 

before the referee that he missed the hearing on February 23, 2016, because his 

vehicle broke down in another state. (C.R. Item No. 21, Notes of Testimony, 

4/27/16, at 7-17.) Claimant also testified that he did not file his initial appeal on 

time because he was working away from home and did not make arrangements for 

anyone to check his mail. (Id. at 15-16.) On May 27, 2016, the Board affirmed the 

referee’s decision to reject Claimant’s appeal as untimely. This appeal followed.

3

The primary issue in this case is whether Claimant filed a timely 

appeal to the Department’s determination that he was ineligible for benefits under 

section 501(e) of the Law, which provides that determinations by the Department 

become final if not appealed within fifteen days after the notice mailing date. 43 

P.S. § 821(e). In circumstances where the filing of an appeal was delayed, a 

claimant is permitted to appeal nunc pro tunc when the delay is caused by 

“extraordinary circumstances involving fraud or some breakdown of the court’s 

operation through a default of its officers.” Cook v. Unemployment Compensation 

Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996) (quotations omitted). An appeal 

may also be filed nunc pro tunc when the delay is caused by the non-negligent 

conduct of the claimant’s attorney or his staff. Id. (quoting Bass v. Commonwealth 

Bureau of Corrections, 401 A.2d 1133 (Pa. 1979)).

 

3 Our standard of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Kirkwood v. Unemployment Comp. Board of Review, 525 

A.2d 841, 843-44 (Pa. Cmwlth. 1987).
4

Claimant argues that the Board erred in failing to accept his appeal 

nunc pro tunc. Claimant does not dispute that he received the notice or that his 

appeal was not filed within the fifteen-day period. Nor does Claimant present 

evidence that his filing was untimely due to any fraud or administrative

breakdown. He argues that because the delay in filing his appeal within the 

statutory period was due to work-related travel, his appeal was filed late due to 

non-negligent conduct.

However, the opportunity to appeal nunc pro tunc is limited strictly to 

unique and compelling factual circumstances to avoid unnecessary determinations 

on whether every untimely filing should be permitted to go forward. Ho v. 

Unemployment Compensation Bd. of Review, 525 A.2d 874, 875 (Pa. Cmwlth. 

1987) (quoting Bass, 401 A.2d at 1137 (Roberts, J. dissenting)). In Ho, we 

determined that the claimant could not appeal nunc pro tunc when “her failure to 

take measures to ascertain the contents of the letter [containing the notice] resulted 

in her delaying in filing the appeal.” Id. When a claimant applies for 

unemployment compensation benefits, he avails himself of our administrative 

system and implicitly assumes a duty to either comply with our administrative 

procedures or risk forfeiting his claim. Id. Claimant had clear control over the 

circumstances which resulted in filing his appeal beyond the fifteen day period. 

He has failed to demonstrate the type of extraordinary circumstances that would 

warrant proceeding nunc pro tunc. As a result, the Board did not err when it 

affirmed the referee’s dismissal of Claimant’s untimely appeal.
5

Claimant also argues that he would have succeeded on the merits had 

the referee or the Board accepted his appeal. However, the Board does not have 

jurisdiction to consider an untimely appeal. Edwards v. Unemployment 

Compensation Bd. of Review, 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994). Because 

Claimant’s appeal was untimely, the Board did not err in declining to consider the 

merits of Claimant’s appeal.

For these reasons, we affirm. 

__________________________________

JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev, :

Petitioner :

:

v. : No. 1060 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 24th day of March, 2017, the order of the 

Unemployment Compensation Board of Review is affirmed.

__________________________________

JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1060 C.D. 2016

Respondent : Submitted: December 9, 2016

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: March 24, 2017

As the Majority’s opinion ignores (and does damage to) the equitable

principles surrounding nunc pro tunc questions enunciated in cases such as Bass v.

Commonwealth, 401 A.2d 1133 (Pa. 1979) and Criss v. Wise, 781 A.2d 1156 (Pa.

2001), I must dissent.

___________________________

JOSEPH M. COSGROVE, Judge