IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Naticchia, : Petitioner :

:

v. : No. 1486 C.D. 2021

: Submitted: February 3, 2023 Unemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE DUMAS FILED: June 2, 2023

Nicole Naticchia (Claimant), appearing pro se , has petitioned this Court

to review the adjudication of the Unemployment Compensation (UC) Board of

Review (Board), which affirmed a Referee’s decision that Claimant was ineligible

for unemployment benefits under Section 402(e) of the UC Law (Law). 1 Clai mant

untimely petitioned this Court for review. Because we discern no fraud, breakdown

in court operations, or other non

- negligent circumstances excusing this untimely

appeal , we quash Claimant’s petition for lack of jurisdiction.

I. BACKGROUND 2

Claimant worked as a per diem employee for Pediatric Specialty Care

(Employer )

. On March 2, 2020, Employer discharged Claimant for failing to timely

1 Act of Dec ember 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(e).

2 Unless stated otherwise, we adopt the factual background for this case from the decision

of the Board , which is supported by substantial evidence of record. See Bd. Dec./Order, 5/4/ 21.2

complete its mandatory training. Claimant applied for unempl oyment benefits,

which the UC Service Center denied under Section 402(e) of the Law. 3 Thereafter,

C laimant appealed to the Referee . Following a hearing, the Referee reversed the UC

Service Center’s decision

. Employer appealed , and o n May 4, 2021, the Board

reversed the Referee’s order , denying Claimant benefits and finding a recoupable

non

- fault overpayment of $3,820

. 4 On May 16, 2021, Claimant timely filed a request

for reconsideration of the Board’s decision, which was denied on June 7 , 2021

.

On December 22, 2021, Claimant submitted a pro se letter to this Court

indicating her intention to appeal , which she later perfected by filing a petition f or

review

. 5 T his Court instructed the parties to address the timeliness of Claimant’s

appeal in th eir principal briefs. Cmwlth. Ct. Order, 3/10/22.

Thereafter, Employer filed an application to quash Claimant’s appeal

as untimely and an application to stay certification of the record pending resolution

of its application to quash

. Emp.’s Appl. to Quash, 4/15/22; Appl. to Stay , 4/15/22.

T his Court granted Employer’s application to stay. Cmwlth. Ct. Order, 4/20/22.

Claimant did not formally respond to Employer’s application to quash but sent email

correspondence to t his Court

, stating that she had reached out to the Board numerous

times to ch allenge its decision and even contacted her state Legislator’s office.

Claimant’s Email

, 5/9/22 (identified in this Court’s docket as “Answer to

3 Section 402(e) of the Law provides that an employee is ineligible for compensation for any week that her unemployment is the result of her discharge from work due to willful

misconduct. See 43 P.S. § 802(e).

4 Attached to the Board’s decision were explicit appeal instructions, notifying the parties that “[a] petition to the Commonwealth Court may be filed within 30 days of the mailing date of the Board’s disposition.” Bd. Dec. /Order, 5/4/21, at 5.

5 The Court preserved December 22, 2021, as the date of Claimant’s appeal. See Cmwlth.
Ct. Notice, 12/28/21.3

Application to Quash”). Upon review , this Court denied Employer’s application to

quash without prejudice. Cm wlth. Ct. Order, 6/17/22.

II. ISSUES 6

Claimant asserts that she did not commit willful misconduct and should

not be responsible for the overpayment. See Claimant’s Br. at 10

- 11

. Claimant does

not address the un timeliness of her appeal. See generally Claimant’s Br.

Employer responds that Claimant’s appeal was untimely and that she

has failed to establish fraud or a breakdown in court operations. See Emp .’s Br. at

7

- 11. Thus, according to Employer, Claimant’s appeal must be dismissed. See id

. Alternatively, Employer contends that Claimant ’s failure to complete the required

training constituted willful misconduct that rendered her ineligible for UC benefits.

See i d

. at 12

- 16.

III. DISCUSSION

In order to appeal a quasi

- judicial order , such as an order of the Board,

a party must file a petition for review in this Court within 30 days after entry of the

order. See 42 Pa. C.S. § 5571(b); Pa. R.A.P. 1512 (a)(1)

. “The failure to timely

appeal an ad ministrative agency action is a jurisdictional defect.” Radhames v. Tax

Rev. Bd ., 994 A.2d 1170, 1175 (Pa. Cmwlth. 2010). This Court may not enlarge the

time for fi ling a petition for review. See Pa. R.A.P. 105( b ). Untimely appeals will

be quashed by this Court for lack of jurisdiction. City of Phila. v. Frempong, 865

A.2d 314, 317 (Pa

. Cmwlth. 2005)

. A nunc pro tunc appeal is only warranted upon

a showing of extraordinary circumstances showing fraud, an administrative

breakdown in the court’s procedures, or non

- negligent circumstances caused by the

6 Our standard of review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial

evidence. Smith v. Unemployment Comp. Bd. of Rev ., 261 A.3d 615, 619 n. 6 (Pa. Cmwlth. 2021).4

claimant or a third party. Harris v. Unemployment Comp. Bd. of Rev. , 247 A.3d

1223, 1229 (Pa. Cmwlth. 2021); see also Duhigg v. Unemployment Comp. Bd. of

Rev. , 181 A.3d 1, 4 (Pa. Cmwlth. 2017) (placing the burden to demonstrate

extraordinary circumstances on the petitioner )

.

Here, t he Board issued a decision on May 4, 2021, and Claimant did

not appeal this decision until December 22, 2021, more than seven months later. 7

Thus, C laimant’s appeal is patently untimely. See Pa. R.A.P. 1512(a)(1). Further,

Claimant has not demonstrated an administrative breakdown, fraud, or other non

negligent circumstances that would warrant a nunc pro tunc appeal. 8

Accordingly, we are constrained to quash Claimant’s untimely appeal

for lack of jurisdiction. See Frempong

.

LORI A. DUMAS, Judge

7 Claimant’s timely filing of a request for reconsideration did not stay the appeal period.

See Brown v. Greene Cnty. Off. o f Dist. Att’y , 255 A.3d 673, 67 5 , n.3 (Pa. Cmwlth.) ( “A party’s filing of a motion for reconsideration

. . . does not stay the appeal period

. . . . ” )

, appeal denied

, 268 A.3d 1076 (Pa. 2021)

.

8 In her appellate brief, Claimant references correspondence with the Board regarding her request for reconsidera tion. See Claimant’s Br. at 8. She also states that she “attempt[ed] to communicate with the agency” after receiving an overpayment notice in August 2021 ; sought assistance from her state representative ; and was then told by an agency representative that she

should file an appeal with this Court. Id. Claimant offers no evidence to support these assertions.
However, e ven if we were to accept these assertions as true, they would not establish a right to

nunc pro tunc relief. Claimant has not appealed the Board’s decision to deny reconsideration, and any attempt to appeal the Board’s decision in August 2021 was already months beyond the expiration of the appeal period.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Naticchia, : Petitioner :

:

v. : No. 1486 C.D. 2021

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW, this 2 nd day of June , 202 3, Nicole Naticchia’s appeal from

the decision of the Unemployment Compensation Board of Review

, entered May 4,

2021

, is QUASHED for lack of jurisdiction.

LORI A. DUMAS, Judge