IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyne Walke, :

Petitioner :

 :

v. : No. 762 C.D. 2019

 : Submitted: December 6, 2019 

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: April 8, 2020

Lyne Walke (Claimant), proceeding pro se, petitions for review of the May 

22, 2019 Order of the Unemployment Compensation Board of Review (Board) that 

dismissed Claimant’s appeal from a Referee’s Decision as untimely pursuant to 

Section 502 of the Unemployment Compensation Law1(Law). On appeal, Claimant 

argues the merits of her underlying unemployment compensation (UC) appeal, while 

also acknowledging the untimeliness of her appeal to the Board. Claimant explains 

her untimely appeal was the result of her misunderstanding the Referee’s Decision 

and lack of understanding of the law. The Board responds that Claimant’s 

explanations for the untimeliness of the appeal are insufficient to establish that her 

 

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

(providing, in relevant part, that a referee’s decision “shall be deemed the final decision of the 

board, unless an appeal is filed therefrom, within fifteen days after the date of such decision”).
2

appeal should have been considered nunc pro tunc. Because Claimant’s appeal to 

the Board was untimely and her explanations do not meet the heavy burden of 

proving that her appeal should have been considered timely, we are constrained to

affirm.

In her brief, Claimant sets forth the full factual background of the merits of 

her underlying appeal, which relate to determinations finding that she received UC 

benefits for which she was ineligible due to her engaging in self-employment.

However, because the issue before the Court is whether the Board erred in 

dismissing Claimant’s appeal as untimely, we set forth only the facts necessary to 

resolve this limited issue. On December 7, 2018, the Referee issued a Decision 

dismissing as untimely Claimant’s appeal from determinations that she was 

ineligible for benefits, and therefore responsible for the overpayment of UC benefits 

and penalties. The Referee’s Decision explained that, to be timely, Claimant’s 

appeal from those determinations had to have been filed by November 6, 2018, but 

Claimant had not filed her appeal until November 8, 2018. The Referee’s Decision 

ended with the statement that “[t]he claimant’s appeal is, therefore, dismissed,” and 

the Referee’s order stated “[t]he claimant’s Petition for Appeal is DISMISSED.” 

(Referee Decision at 2.) The Referee’s Decision included two statements reflecting 

that Claimant’s last day to appeal the Decision was December 24, 2018. (Id. at 1-

2.) 

The Referee’s Decision was mailed on December 7, 2018, to Claimant at her 

last known postal address and was not returned as undeliverable. (Board Opinion, 

Findings of Fact (FOF) ¶¶ 2, 4.) Claimant filed her appeal to the Board by fax on 

February 5, 2019. (Id. ¶ 6.) Claimant explained that she “[d]id not have a full 

understanding of [the] law and [she] need[ed] a new court date” and that she 
3

misunderstood the Referee’s Decision. (Petition for Appeal and Appeal Letter to 

Board, R. Item 10.) The Board advised Claimant of the untimeliness of her appeal, 

but provided her an opportunity to request a hearing on whether her appeal should 

be considered timely. (Letter from Board to Claimant, R. Item 11.) Claimant 

requested a hearing, which was held on April 16, 2019. At the hearing, Claimant 

acknowledged that she received the Referee’s Decision around December 7, 2018, 

and that when she reviewed that decision and saw the word “dismissed” she thought 

that “everything[ had] worked out in [her] favor.” (Hr’g Tr. at 4-5, R. Item 16.) She

testified she did not realize that the Referee’s Decision had dismissed her appeal and,

had she understood, she would have filed an appeal of that Decision sooner. (Id. at 

5-6, 9.) According to Claimant, it was not until she received a notice indicating she 

had an overpayment that she had to repay that she went to a CareerLink counselor, 

who advised Claimant that her appeal had been dismissed. (Id. at 6.) At that point, 

Claimant faxed her appeal to the Board. (Id. at 7.) A representative of the 

Department of Labor and Industry (Department) appeared at the hearing and testified

that Claimant’s appeal was not timely filed, a fact admitted by Claimant. (Id. at 9.)

On May 22, 2019, the Board issued its decision in which it found as follows. 

The Referee’s Decision was issued and mailed to Claimant at her last known postal 

address on December 7, 2018, and was not returned as undeliverable. (FOF ¶¶ 1-2, 

4.) That Decision advised Claimant she had 15 days to appeal, which would have 

been December 24, 2018. (Id. ¶¶ 3, 5.) Claimant’s appeal was not filed until 

February 5, 2019, and the reason for Claimant’s delay was that “she misunderstood 

the Referee’s decision even though it clearly stated that her appeal had been 

dismissed.” (Id. ¶¶ 6-7.) There was no evidence that Claimant had been 

misinformed or misled by any UC “authorities regarding her right or the necessity 
4

to appeal.” (Id. ¶ 8.) Based on these facts, and citing to Section 502’s mandatory 

requirement that an appeal from a referee’s decision must be filed within 15 days of

the decision, the Board held that Claimant’s appeal was untimely. Further, the Board 

concluded that the untimely “appeal was not caused by fraud or its equivalent by the 

administrative authorities, a breakdown in the appellate system, or by non-negligent

conduct.” (Id. at 2.) For these reasons, the Board dismissed Claimant’s appeal from 

the Referee’s Decision as untimely pursuant to Section 502 of the Law. (Id.) 

Claimant now petitions this Court for review.2

On appeal, Claimant does not dispute that her appeal to the Board was 

untimely or argue that she was misled by any UC authorities as to her need to appeal 

the Referee’s Decision. Rather, Claimant explains that when she received the 

Referee’s Decision, she “thought [she had] won the case and it was over” based on 

her “lack of knowledge and terminology of the law” and her “misread[ing]” and 

“misunderstand[ing] of the [D]ecision of the Referee.” (Claimant’s Brief (Br.) at 

11, 13.3) It was not until Claimant received notice that she needed to repay the 

overpayment that she inquired about the matter with a CareerLink office, which 

informed her that her appeal had been dismissed. At that time, Claimant “realized 

[her] mishap” and filed the appeal. (Id. at 13.)

The Board responds that it properly dismissed Claimant’s appeal as untimely 

under Section 502 of the Law, which is jurisdictional. According to the Board, 

Claimant bears a heavy burden to justify the untimeliness of her appeal, and the 

 

2

“The Court’s review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, whether a practice or procedure of the Board was not 

followed or whether the findings of fact are supported by substantial evidence in the record.” 

W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 

2006). 

3 Claimant’s brief is not paginated so our reference to page numbers is to the physical page 

of the brief.
5

explanations that she provided do not meet that heavy burden. Such explanations, 

the Board argues, do not warrant the grant of nunc pro tunc relief because they do 

not establish non-negligent conduct on the part of Claimant. See Lee v. 

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1547 C.D. 2018, filed July 

19, 2019);4 DiBello v. Unemployment Comp. Bd. of Review, 197 A.3d 819, 822 (Pa. 

Cmwlth. 2018). Because Claimant’s appeal was admittedly untimely and her 

explanations do not establish that the delay in filing that appeal was the result of 

non-negligent conduct, the Board asserts its Order should be affirmed.5

Section 502 of the Law provides, in relevant part, that “the parties . . . shall be 

duly notified . . . of the referee’s decision, and the reasons therefor, which 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 (emphasis added). 

This time limit is also set forth in the Department’s regulations. See 34 Pa. Code 

§ 101.82(a) (“A party seeking to appeal a Department determination shall file an 

appeal . . . on or before the 15th day after the date on which notification of the 

decision of the Department was . . . mailed to [the party] at [the party’s] last known 

post office address.”). The courts have held that this 15-day time period is 

mandatory. UGI Utils. v. Unemployment Comp. Bd. of Review, 776 A.2d 344, 347 

 

4 Although Lee, an unreported opinion, is not a precedential decision, the Board cites it for 

its persuasive value pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 

126(b).

5

In the alternative, the Board argues that Claimant waived the issue by not including it in 

the Statement of Questions Involved of her brief as set forth by Pennsylvania Rule of Appellate 

Procedure 2116(a), Pa.R.A.P. 2116(a). This Court may, in its discretion, consider an issue not 

presented in the Statement of Questions Involved if the party has provided ample notice of the 

nature of the party’s argument. Izzi v. Workmen’s Comp. Appeal Bd. (Century Graphics), 654 

A.2d 176, 178 n.3 (Pa. Cmwlth. 1995). Claimant’s implicit challenge to the Board’s dismissal of 

her appeal as untimely can be gleaned from her brief, and the Board clearly understood those 

arguments well enough as it addressed the merits thereof in its brief. 
6

(Pa. Cmwlth. 2001). “If an appeal is not filed within . . . [15] days of the mailing of 

the determination, it becomes final, and the Board does not have the requisite 

jurisdiction to consider the matter.” Dumberth v. Unemployment Comp. Bd. of 

Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003). “Appeal periods, even at the 

administrative level, are jurisdictional and may not be extended as a matter of grace 

or indulgence; otherwise, there would be no finality to judicial action.” Id. 

Accordingly, an appeal filed even one day after the appeal period expires requires 

the dismissal of the appeal as untimely. Id. 

However, an exception to this mandatory rule exists that allows for an 

untimely appeal to be considered nunc pro tunc, or timely, in certain limited

situations. “An appeal nunc pro tunc may be permitted when a delay in filing the 

appeal is caused by extraordinary circumstances involving fraud, administrative 

breakdown, or non-negligent conduct, either by a third party or by the appellant.” 

Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review, 955 A.2d 

484, 487 (Pa. Cmwlth. 2008) (emphasis added). Claimant bears “[t]he burden to 

establish the right to have an untimely appeal considered” and that burden is 

“considered . . . a heavy one.” Hessou v. Unemployment Comp. Bd. of Review, 942 

A.2d 194, 198 (Pa. Cmwlth. 2008) (emphasis added). In order to meet this burden, 

the party must prove that “the administrative authority engaged in fraudulent 

behavior or manifestly wrongful or negligent conduct” or that “non-negligent 

conduct beyond [the party’s] control caused the delay.” Id. Nunc pro tunc relief for 

non-negligent conduct is generally reserved only for those “unique and compelling 

cases in which the [petitioner] has clearly established that [the petitioner] attempted 

to file an appeal, but unforeseeable and unavoidable events precluded [the petitioner] 

from actually doing so.” Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).
7

There is no dispute that Claimant’s appeal was untimely, and she does not

assert that the delay was due to some action by the UC authorities. Thus, in order 

for her appeal to be considered nunc pro tunc she must establish that “non-negligent 

conduct beyond [Claimant’s] control caused the delay.” Hessou, 942 A.2d at 198. 

Claimant explains that the delay was due to her misreading and/or misunderstanding 

of the Referee’s Decision and her lack of understanding of the law. While we 

empathize with Claimant, this Court has previously held that a party’s misreading or 

misunderstanding of a UC determination, document, or the law is not non-negligent 

conduct. 

For example, in DiBello, we held that the claimant’s failure to carefully read 

a determination did not warrant the grant of nunc pro tunc relief because 

“[m]isreading a determination is negligent conduct.” 197 A.3d at 822. See also Guy 

v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 479 C.D. 2019, filed Nov. 

13, 2019) (providing that a party’s failure to read, or to carefully read, a 

determination is negligent conduct that does not support the grant of nunc pro tunc

relief).6In Lee, we held that a claimant’s misunderstanding as to the content of a

determination, which was based on his interpretation of the language, was 

insufficient to warrant nunc pro tunc relief because a “misunderstanding [of] a 

determination does not constitute the requisite extraordinary circumstances for a 

nunc pro tunc appeal.” Slip op. at 6. Finally, in Finney v. Unemployment 

Compensation Board of Review, 472 A.2d 752, 753-54 (Pa. Cmwlth. 1984), we held 

that a claimant’s lack of understanding of the law, there the procedures for filing an 

appeal, “does not excuse a party to an action from [the party’s] statutory obligation 

to file an appeal within the prescribed appeal period.”

 

6 Guy, an unreported opinion, is cited for its persuasive, not precedential, value pursuant to 

Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b).
8

Based on this precedential and persuasive authority, we are unable to allow 

Claimant’s explanations to satisfy the heavy burden of proving that extraordinary 

circumstances caused the delay in filing her appeal to the Board. Mountain Home 

Beagle Media, 955 A.2d at 487; Hessou, 942 A.2d at 198. Further, these

explanations do not reflect that Claimant “attempted to file an appeal, but 

unforeseeable and unavoidable events precluded her from actually doing so,” which 

our Supreme Court has described as the type of event that generally would give rise 

to the grant of nunc pro tunc relief. Criss, 781 A.2d at 1160. Therefore, Claimant’s 

untimely appeal to the Board cannot be considered nunc pro tunc. 

While Claimant’s situation is unfortunate, “[a]ppeal periods . . . are 

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

Dumberth, 837 A.2d at 681. Accordingly, we cannot find that the Board erred in 

dismissing Claimant’s appeal as untimely pursuant to Section 502 of the Law, and 

we are constrained to affirm. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lyne Walke, :

Petitioner :

 :

v. : No. 762 C.D. 2019

 : 

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

NOW, April 8, 2020, the Order of the Unemployment Compensation Board 

of Review, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge