IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra Holmes, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 301 C.D. 2021

Respondent : Submitted: October 15, 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: March 25, 2022

Sandra Holmes (Claimant) petitions for review of the December 23, 

2020 order of the Unemployment Compensation (UC) Board of Review (Board) 

affirming the decision of the referee finding Claimant ineligible for benefits under

Section 402(b) of the UC Law (Law)2 because she voluntarily quit her employment 

with North East School District (Employer) without a necessitous and compelling 

reason. Claimant contends that she had to resign her employment due to the COVID1 This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn 

Jubelirer became President Judge.

2 Section 402(b) of the Law prohibits benefits where a claimant’s “unemployment is due 

to voluntarily leaving work without cause of a necessitous and compelling nature . . . .” Act of 

December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
2

19 pandemic (pandemic) and a change in her job duties. Also before the Court, 

pursuant to our March 25, 2021 order, is the timeliness of Claimant’s petition for 

review. Therein, we directed the parties to address the apparent untimeliness of the 

petition for review in their principal briefs on the merits or in an appropriate motion. 

Both parties have briefed the issue, as directed. For the following reasons, we 

dismiss Claimant’s petition for review as untimely filed. 

Claimant worked for Employer from September 2, 1991, to March 13, 

2020, as a full-time educational aide, at the rate of $13.85 per hour. Certified Record 

(C.R.) at 9 (Claimant Questionnaire). She was an academic year employee, i.e., 

employed from August to June. Id. Due to the pandemic, Claimant’s last day of 

work in person was March 13, 2020, and she was paid through June 4, 2020. Id. at 

10. On July 6, 2020, Claimant submitted a “Letter of Retirement,” requesting that

Employer consider the letter as “official notification of [her] resignation” effective 

June 7, 2020. Id. at 19-20. 

Claimant applied for UC benefits on July 12, 2020. C.R. at 3. The UC 

Service Center sought additional information from Claimant regarding her claim,

which she provided by way of a telephonic statement. Id. at 26. Claimant stated 

that she did not return to work because Employer changed her job duties. Id. 

Claimant explained that, instead of working with the regular education children, she 

was assigned to work with learning support children. Id. Claimant stated that, at 61 

years of age, she did not believe she was capable of working with children who 

misbehave or are in wheelchairs. Id. Further, she explained that she would no longer 

be permitted to leave 20 minutes early to get to her part-time job.3 Id. Claimant 

3 Claimant’s UC claim record shows continued employment with a second employer. 

Certified Record (C.R.) at 5.
3

stated that Employer told her to accept the new conditions or retire. Id. According 

to Claimant, she was forced to retire because Employer made it impossible for her 

to keep her job. Id. 

On August 26, 2020, the UC Service Center issued a notice of 

determination finding Claimant eligible for benefits (UC Determination). C.R. at 

28. The UC Determination noted that Claimant quit for personal reasons stemming 

from the fact that she had worked with regular education children for 20 years and 

Employer then changed her job duties to work with mentally and physically 

challenged children, duties that Claimant felt she was too old to perform. The UC 

Determination noted that Claimant raised the issue with Employer to no avail. Thus, 

the UC Determination concluded that Claimant had a necessitous and compelling 

reason for quitting her job and there were no other alternatives to resolve the 

situation. 

Employer appealed, and a referee held a telephonic hearing on 

September 25, 2020, to consider whether Claimant’s unemployment was due to her 

voluntarily leaving work without cause of a necessitous and compelling nature. C.R. 

at 39, 66. Claimant participated in the hearing and testified on her own behalf. Id. 

at 66, 73-79. Employer also participated in the hearing and was represented by its 

tax consultant representative. Id. at 66. Employer’s business manager and 

elementary school principal testified briefly on Employer’s behalf. Id. at 66-68, 79-

86. 

After considering the testimony and documentary evidence, the referee 

issued a decision on September 30, 2020, that reversed the UC Determination and 

concluded that Claimant was ineligible for UC benefits. In doing so, the referee 

made the following findings of fact:
4

1. [C]laimant was last employed with North East School District as 

a Core Area Aide, full-time, making $13.85 per hour, with a last 

day worked of June 5, 2020. 

2. [C]laimant is her [85-year-old] father’s caregiver who, in the past, 

had undergone open heart surgery. 

3. Prior to the end of the 2019-2020 school year and during the 

summer break, [E]mployer had conducted group meetings with 

employees, which included [C]laimant, discussing the possibility 

of utilizing staff in different capacities as a result of changes 

caused by the [COVID]-19 pandemic.

4. [C]laimant interpreted this to mean that she may have to work with 

students that were mentally challenged and/or in wheelchairs.

5. [C]laimant was concerned because, in or around 2005, [C]laimant 

had worked with special needs students, and at times [C]laimant 

was required to lift and/or move those students.

6. [C]laimant felt that the lifting led to her requiring neck and back 

surgery.

7. [E]mployer did not tell [C]laimant that she would have to work 

with mentally challenged students or students in wheelchairs.

8. [C]laimant, being [61] years of age, and also the caretaker of her 

elderly father, also had concerns related to [COVID]-19 in 

returning to work.

9. After discussing her concerns with union representatives and coworkers, [C]laimant found that [E]mployer had the right to modify 

[C]laimant’s job duties.

10. [C]laimant did not communicate her concerns about her job duty 

changes or pandemic to her supervisor.

11. On July 6, 2020, during the summer break, [C]laimant submitted 

a letter of resignation requesting that her retirement be effective 

June 7, 2020.
5

12. [E]mployer accepted [C]laimant’s resignation, and retroactively 

made the last day of employment the last day of school for 

students, which was June 3, 2020.

C.R. at 89-90, Referee’s Decision, Findings of Fact (F.F.) Nos. 1-12. Based on the 

above factual findings, the referee determined that, regardless of the legitimacy of 

Claimant’s concerns about the pandemic or a change in her job duties, she never 

discussed her concerns with Employer before resigning. C.R. at 90-91. Further, she 

did not raise her concerns in her resignation/retirement letter. Id. at 91. To show 

that she had a necessitous and compelling reason for resigning, the referee noted that 

Claimant was obligated to make a reasonable effort to preserve her employment.4 

Id. at 90. Because Claimant did not attempt to address her concerns with Employer,

such that Employer had no opportunity to address her concerns and offer a possible 

solution prior to her resignation, Claimant failed to establish that she had a 

necessitous and compelling reason for ending her employment. Id. at 91. 

Claimant, proceeding pro se, appealed to the Board on October 12, 

2020. C.R. at 98-99. She did not raise any legal issues but made several statements. 

Claimant stated that she could not file a grievance regarding a change of job duties 

or the pandemic, and she claimed that retiring from employment is different from 

quitting. Id. at 98. Further, had she continued to work during the pandemic, she 

probably would have become infected and transmitted the virus to her father. Id. at 

99. Due to his age and heart condition, she claims that he would have died. Id. 

4

See Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Rev., 906 

A.2d 657, 660 (Pa. Cmwlth. 2006) (providing that a claimant who claims to have left her 

employment for necessitous and compelling reasons has the burden of proving that: “(1) 

circumstances existed which produced real and substantial pressure to terminate employment; (2) 

such circumstances would compel a reasonable person to act in the same manner; (3) the claimant 

acted with ordinary common sense; and[] (4) the claimant made a reasonable effort to preserve her 

employment”).
6

Additionally, she claimed that she was no longer “trying to get unemployment off 

of [Employer.]” Id. at 98. However, she stated that she no longer worked at her 

part-time job and was unfairly denied UC benefits for her second job based on her 

retirement from her first job. Id. at 98-99. 

On December 23, 2020, the Board adopted and incorporated the 

referee’s findings of fact and conclusions of law as its own and affirmed the referee’s 

decision.

5

 C.R. at 101. 

On January 21, 2021, the Board received an email from Claimant. C.R. 

at 110. Therein, Claimant reiterated the claims she raised in her first appeal to the 

Board and asked the Board to reconsider its order, as she has been a hard-working 

employee and paid unemployment withholding tax for many years. Id. By letter 

dated January 28, 2021, the UC Appeals System Administrator advised Claimant 

that her request for reconsideration was untimely and could not be addressed by the 

Board. Id. at 112. The letter explained that a request for reconsideration must be 

filed within 15 days after the issuance of the Board’s decision, pursuant to 34 Pa. 

Code § 101.111. However, Claimant’s communication was received on January 21, 

2021, and, therefore, it was not filed within 15 days of the Board’s December 23, 

2020 decision. C.R. at 112. 

On February 16, 2021, Claimant, again proceeding pro se, filed a letter 

with this Court asking for “help with [her] situation.” Claimant’s Pro Se

Communication dated Feb. 16, 2021. She claimed to have sent an appeal letter by 

5 The Board briefly addressed Claimant’s issue regarding her second employer. It noted 

that while Claimant maintained on appeal that she attempted to file against her second employer, 

and not Employer, she was working at the second employer when she filed her UC application. 

Her disqualifying resignation from Employer therefore triggered Section 401(f) of the UC Law,

43 P.S. § 801(f) (relating to qualifications required to secure compensation), which requires that 

Claimant earn “an amount equal to or in excess of six (6) times [her] weekly benefit rate[.]”
7

facsimile transmission to the number she “got from unemployment [and] sent it the 

exact day [she] got it.” Id. She explained that she received a letter stating that she 

“sent the wrong stuff in so [she] called and [t]alked to someone who said [she]should 

[send it via email] ASAP[.]”

6

 Id. Claimant further explained that she sent an email,

and, in response, she received a letter that her email was untimely. Id. 

On February 23, 2021, the Court sent Claimant information about how 

to perfect her appeal and file a petition for review. Claimant then obtained counsel, 

who filed an ancillary petition for review on Claimant’s behalf on March 16, 2021. 

See Docket Entries. Claimant’s petition for review to this Court raises seven issues,

all of which relate to whether the Board erred in concluding that she did not have a 

necessitous and compelling reason for leaving her employment.

7

 Following the 

filing of Claimant’s ancillary petition for review, we issued our March 25, 2021 

order, directing the parties to address the timeliness of Claimant’s petition in their 

principal briefs on the merits or in an appropriate motion, with which the parties 

have complied. 

In her brief, Claimant states that she received the Board’s decision of 

December 23, 2020, in a timely manner. Claimant’s Br. at 15. She explains that 

included with the Board’s decision was the referee’s September 30, 2020 decision. 

Id. Claimant further explains that she turned to the last page of both documents for 

the appeal instructions and mistakenly failed to discern that the appeal instructions 

6 Claimant does not provide the contact number, state who sent the letter, or aver the 

identity of the person with whom she spoke. 

7

“Our review is limited to determining whether the necessary findings of fact were 

supported by substantial evidence, whether errors of law were committed, or whether 

constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Rev., 87 A.3d 1006, 

1009 n.2 (Pa. Cmwlth. 2014). 
8

related to the referee’s decision, and not the Board’s decision. See id.; see also C.R. 

at 106-07. Claimant asserts that she followed those instructions and timely appealed 

to UCBoardAppeals@pa.gov, which “was to the wrong venue.”

8

 Claimant asserts 

that she was not notified of the mistake until February of 2021, which is when she 

correctly filed her appeal with this Court. Claimant’s Br. at 15. Claimant also makes 

arguments regarding the merits of her appeal. Claimant’s Br. at 11-15.

9

 

The Board responds that Claimant’s petition for review is clearly 

untimely. Board’s Br. at 7. The Board notes that Claimant has not asserted any

reason for the delay that would warrant nunc pro tunc review, and further that she 

admits in her brief that her late appeal was the result of her own negligence. Id. at 

7-8. The Board cites Savage v. Unemployment Compensation Board of Review, 491 

A.2d 947 (Pa. Cmwlth. 1985), and DiBello v. Unemployment Compensation Board 

of Review, 197 A.3d 819 (Pa. Cmwlth. 2018), for the proposition that misreading a 

document is negligent conduct that does not warrant nunc pro tunc relief. Board’s 

Br. at 8-9. Further, the Board explains, it is not a tribunal, and thus, an appeal filed

erroneously with the Board cannot be transferred to this Court. Board’s Br. at 9 

(citing DiJohn v. Unemployment Comp. Bd. of Rev., 687 A.2d 1213 (Pa. Cmwlth. 

1997) (providing that appeal erroneously filed in this Court cannot be transferred to 

the Board because the Board is not a tribunal)). Alternatively, the Board contends 

that, if this Court reaches the merits of Claimant’s appeal, Claimant failed to prove 

cause of a necessitous and compelling nature to voluntarily leave her employment. 

Board’s Br. at 9-14. 

8 Claimant contends that she sent the email on December 23, 2020. However, the email is 

dated January 21, 2021. See C.R. at 110.

9 We note that the factual account contained in Claimant’s brief differs from the account 

made in Claimant’s pro se letter filed with this Court on February 16, 2021.
9

We first address the timeliness of Claimant’s petition for review. A 

petition for review must be filed within 30 days after the entry of the order from 

which an appeal is taken. Pa.R.A.P. 1512(a)(1). “An appellate court . . . may not 

enlarge the time for filing . . . a petition for review[.]” Pa.R.A.P. 105(b). We have 

long held that

[t]he timeliness of an appeal and compliance with the 

statutory provisions which grant the right of appeal go to 

the jurisdiction of the court to hear and decide the appeal. 

The courts have no power to extend the period for taking 

appeals, absent fraud or a breakdown in the court’s 

operation through a default of its officers. 

Iannotta v. Phila. Transp. Co., 312 A.2d 475, 476 (Pa. Cmwlth. 1973) (internal 

citations omitted). 

“It is well established that failure to timely appeal an administrative 

agency’s action is a jurisdictional defect; consequently, the time for taking an appeal 

cannot be extended as a matter of grace or mere indulgence.” H.D. v. Dep’t of Pub.

Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000) (citations omitted). A nunc pro 

tunc appeal may be allowed, however, where extraordinary circumstances involving 

fraud or some breakdown in the administrative process caused the delay in filing, or 

where non-negligent circumstances related to the petitioner, his or her counsel, or a 

third party caused the delay. Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 

1130 (Pa. 1996).

Claimant does not cite to any law or present any legal argument as to 

why her appeal to this Court should be deemed timely. The Board relies on Savage

and DiBello to support its contention that Claimant is not entitled to nunc pro tunc

relief. In Savage, the claimant did not attend the referee’s hearing. He misread the 

date on the hearing notice and claimed that due process required that he receive a 
10

hearing. The Board rejected this claim, and this Court affirmed. In so doing, we 

explained that the claimant in Savage did not assert that the hearing notice was 

incorrect or misleading, but only that he misread the notice. We thus held that 

misreading the notice constituted negligence on the claimant’s part, which could not 

justify his failure to appear at the hearing. Thus, we concluded that the Board did 

not err in denying the claimant’s request for a new hearing. 

In DiBello, the claimant received a notice of financial determination

stating that she was eligible for 18 weeks of UC benefits. She filed an appeal two 

months later, asserting that she should have been approved for 26 weeks of benefits, 

but that her employer submitted the wrong information to the local service center. 

At a hearing before a referee, the claimant testified that she did not read the notice 

or realize that she was approved for 18 weeks of benefits and repeated her argument 

that her employer misreported the number of weeks she worked. Both the referee 

and the Board concluded that the claimant’s appeal was untimely. On appeal to this 

Court, the claimant argued that the Board erred in denying her nunc pro tunc relief 

because of her employer’s error, which she claimed constituted a breakdown of its 

administrative process. We determined that the employer’s error did not constitute

an administrative breakdown because it was not an administrative board or body that 

engaged in fraudulent conduct or its equivalent, and the claimant admitted that she 

received the notice but did not realize it said 18 weeks instead of 26 weeks. We 

therefore held that “[m]isreading a determination is negligent conduct that does not 

warrant nunc pro tunc relief.” DiBello, 197 A.3d at 823. Accordingly, we affirmed 

the Board.

Here, Claimant asserts that she sent an email to the Board, and not a 

petition for review to this Court, because she mistakenly read the appeal instructions 
11

attached to the referee’s decision instead of the appeal instructions attached to the 

Board’s adjudication. We agree with the Board that, like the claimants in Savage

and DiBello, Claimant simply misread the notice, which is negligent conduct that 

does not warrant nunc pro tunc relief. 

As described above, Claimant filed her initial pro se communication 

with this Court on February 16, 2021, more than 30 days after the Board mailed its 

decision on December 23, 2020. See Docket Entries; C.R. at 101. Because Claimant 

filed her pro se communication with this Court beyond the 30-day appeal period, 

and there is no other allegation regarding fraud or a breakdown in operations with 

respect to the timeliness of its filing, Claimant’s pro se communication, to the extent 

it can be viewed as an appeal, was untimely and this Court is therefore without 

jurisdiction to consider the merits of Claimant’s case. Accordingly, we are

constrained to dismiss Claimant’s petition for review as untimely filed. 

Accordingly, Claimant’s petition for review to this Court is dismissed 

as untimely filed. 

_________________________________ 

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra Holmes, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 301 C.D. 2021

Respondent :

O R D E R

AND NOW, this 25th day of March, 2022, the petition for review, filed 

by Sandra Holmes, is hereby DISMISSED as untimely filed. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge