IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. Cardone, :

: No. 2713 C.D. 2015

Petitioner : Submitted: May 27, 2016 

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: July 27, 2016

Michael A. Cardone (Claimant) petitions for review, pro se, of the 

November 18, 2015, order of the Unemployment Compensation Board of Review 

(UCBR) affirming the decision of a referee to dismiss Claimant’s appeal as untimely 

under section 501(e) of the Unemployment Compensation Law (Law).1 We affirm.

On July 5, 2015, Claimant filed a claim for unemployment compensation

(UC) benefits. (Ref.’s Decision at 1.) On July 9, 2015, the Department mailed 

 

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

§821(e). Section 501(e) of the Law provides that an appeal from a Department of Labor and 

Industry (Department) determination must be filed within 15 days of the determination. 43 P.S. 

§821(e).
2

Claimant a notice of determination (Notice). The Notice stated that, pursuant to

section 404(d)(1)(iii) of the Law, 43 P.S. §804(d)(1)(iii),

2 Claimant’s revised weekly 

benefit rate for the claim week ending July 4, 2015, was $0 due to Claimant’s 

deductible severance pay. (Notice at 1.) The Notice contained appeal instructions 

indicating that July 24, 2015, was the last date to file a timely appeal. (Findings of 

Fact, No. 1.) The postal authorities did not return the Notice as undeliverable. (Id., 

No. 2.) Claimant did not file his appeal until September 11, 2015. (Id., No. 3.) 

On October 7, 2015, the referee held a hearing at which Claimant 

testified. The referee asked Claimant why he failed to timely appeal the

Department’s determination. (N.T., 10/7/15, at 5.) Claimant responded that he twice 

called the Department after receiving the Notice and that both times, a different

Department employee told Claimant that he must “run [his] severance out” before he 

could receive UC benefits. (Id. at 5-6.) Claimant testified that the Department 

employees did not discuss Claimant’s right to appeal the Department’s determination. 

(Id. at 7.) Claimant acknowledged that the Notice included instructions for filing a 

timely appeal. (Id.)

On October 18, 2015, the referee dismissed Claimant’s appeal as 

untimely under section 501(e) of the Law. The referee concluded that Claimant 

 

2

Section 404(d)(1)(iii) of the Law provides: 

[E]ach eligible employe who is unemployed with respect to any week ending 

subsequent to July 1, 1980 shall be paid, with respect to such week, compensation in 

an amount equal to his weekly benefit rate less the total of . . . (iii) the amount of 

severance pay that is attributed to the week.

43 P.S. §804(d)(1)(iii).
3

failed to file an appeal within 15 days of the Department’s determination. (Ref.’s 

Decision at 2.) The referee also concluded that Claimant was neither misled about 

his appeal rights nor prevented from appealing due to fraud or an administrative 

breakdown. (Id.) Claimant appealed to the UCBR, which adopted the referee’s 

findings of fact and conclusions of law and affirmed. Claimant now petitions this 

court for review.3

On appeal, Claimant argues that he is entitled to nunc pro tunc relief

because his untimely filing was caused by his reliance on Department employees’

statements about Claimant’s ineligibility for UC benefits, which Claimant argues is

an administrative breakdown. We disagree.

The 15-day time period to appeal a Department determination is 

jurisdictional and precludes the referee and the UCBR from considering matters 

raised in an untimely appeal. DiJohn v. Unemployment Compensation Board of 

Review, 687 A.2d 1213, 1215 (Pa. Cmwlth. 1997). “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 

Compensation Board of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). An 

administrative breakdown occurs “‘where an administrative board or body is 

negligent, acts improperly[,] or unintentionally misleads a party.’” Carson 

 

3 Our review is limited to determining whether constitutional rights were violated, whether 

an error of law was committed, or whether the necessary findings of fact are supported by 

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
4

Helicopters, Inc. v. Unemployment Compensation Board of Review, 960 A.2d 524, 

527 (Pa. Cmwlth. 2008) (citation omitted).

Here, Claimant acknowledged that the Notice included instructions for 

filing a timely appeal. Although Claimant testified that he relied on the Department 

employees’ statements over the telephone that Claimant could not receive UC 

benefits due to his deductible severance pay, the employees’ alleged statements

merely reiterated the basis for the Department’s determination. Because the record is 

void of any evidence that the Department employees misled or misinformed Claimant

about his right to appeal, Claimant’s reliance on the employees’ statements does not 

constitute an administrative breakdown. Therefore, the UCBR properly affirmed the 

denial of UC benefits.

4

Accordingly, we affirm.

______________________________________

ROCHELLE S. FRIEDMAN, Senior Judge

 

4

In his brief, Claimant also argues the merits of his appeal to the referee. Because we agree 

with the UCBR that Claimant’s appeal to the referee was untimely, we will not consider those 

claims.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. Cardone, :

: No. 2713 C.D. 2015

Petitioner : 

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 27th day of July, 2016, we hereby affirm the November 

18, 2015, order of the Unemployment Compensation Board of Review.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge