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 Compensa tion Law (Law). 1 We affirm.

On July 5 , 201 5

, 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 determinatio n. 43 P.S.

§821(e)

.2

Claimant a notice of determination (Notice) . The Notice stated that , pursu ant 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 N otice 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 fil e his appeal u ntil 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 t hat he twice

called the Department after receiving the Notice and that both time s

, 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

employee s 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 1 8, 2015, the referee dismissed Claimant’ s appeal as

untimely under sectio n 501(e) of the Law

. The referee concluded that Claimant

2 S ection 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 wee kly 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 n or 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 conclusi ons 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 ’

statement s about Claimant’s in eligibility 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, adm inistrative 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 ad ministrative 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 acknowledg ed that the Notice included instructions for

filing a timely appeal. Although Claimant testified that he reli e d on t he Department

employee s ’ statement s 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 employee s misle d or misinformed Claimant

about his right to appeal, Claimant’s reliance on the em ployees’ statements do es not

constitute an administrative breakdown

. The refore, 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 27 th day of July , 201 6

, we hereby affirm the November

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

.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge