IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev, :

Petit i oner :

:

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 f or review of an order

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

deci sion 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. The reafter, the Department determined that

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

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

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

appeal of the dete rmination 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 ap peal

because he was working in another state from Decem ber 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. O n February 10, 2016, Claimant requested a continuance of that hearing,

indicati ng 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 heari ng was held

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

dismissed Claimant’s ap peal 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

vehic le 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.) O n 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 determinatio n that he was ineligible for benefits under

s ection 501(e) of the Law, which provides that determinations by t he Department

become final if not appealed within fifteen days after the notice m ailing 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 officer s.” 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. (quoti ng Bass v. Commonwealth

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

3 Our s tandard 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

. Kirkw ood v. Unemployment Comp. Board of Review , 525

A.2d 841, 843

- 4 4 (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 w as not filed within th e fifteen

- day per iod. Nor does Claimant present

evidence that his filing was untimely due to any f raud or administrative

br eakdown

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

statutory period was due to work

- related travel

, his appe al 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 t o 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 m easures to ascertain the contents of the letter [containing the notice] resulted

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

unemployment compensation benefits, he avails himself of our administrative

system and implicitly assu mes 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 mer its had

the referee or the Board accepted his appeal. However, the Board do es not h ave

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, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev, :

Petit i oner :

:

v. : No. 1060 C.D. 2016

: Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 24 th day of March, 201 7

, the order of the

Unemployment Compensation Board of Review is affirmed.

__________________________________ JULIA K . HEARTHWAY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danilbek Karmiev

, :

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, : No. 1 060 C.D. 2016

Respondent : Sub m itted: 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