IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra A. Gallagher, :

: No. 2742 C.D. 2015

Petitioner : Nos. 2751-2758 C.D. 2015 

: Submitted: October 14, 2016 

v. : 

: 

Unemployment Compensation : 

Board of Review, : 

: 

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: March 17, 2017

Debra A. Gallagher (Claimant) petitions for review from nine orders

of the Unemployment Compensation Board of Review (Board), dated November 

24, 2015, which affirmed nine decisions of a Referee dismissing as untimely 

Claimant’s appeals from more than thirty Notices of Determination under Section 

501(e) of the Unemployment Compensation Law (Law).

1

 For the reasons that 

follow, we are constrained to affirm.

 

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 in relevant part:

(e) Unless the claimant ... files an appeal with the board, from the 

determination contained in any notice required to be furnished by 

the department ... within fifteen calendar days after such notice ... 

(Footnote continued on next page...)
2

Claimant filed for unemployment compensation benefits on various 

occasions between 2007 and 2014 while working for Aramark Sports, LLC 

(Employer). On July 8, 2014, Employer faxed its records of Claimant’s wage 

information for the years 2007 through 2014, which reflected higher earnings than 

Claimant had reported for many benefit weeks. Certified Record (C.R.) Item Nos. 

3, 6.

Between July 21 and August 1, 2014, the Erie Service Center sent five 

Advance Notices to Claimant, alerting her to the possibility that she had been 

overpaid for numerous benefit weeks specifically identified in the notices, during 

2007, 2008, 2009, 2011, 2012, 2013, and 2014.

2

 Each of the notices requested that 

Claimant complete an attached questionnaire explaining the discrepancies in 

reported earnings and return it to the claims office by a specified date. Each notice 

also advised Claimant that her failure to return the questionnaire may result in the 

termination of benefits and the assessment of an overpayment for benefits already 

paid. The notices informed Claimant that she could call the claims center office at 

the telephone number provided if she wished to request a telephone interview. 

Claimant did not respond to any of these notices.

 

(continued...)

was mailed to his last known post office address, and applies for a 

hearing, such determination of the department, with respect to the 

particular facts set forth in such notice, shall be final and 

compensation shall be paid or denied in accordance therewith.

2

Two Advance Notices dated July 21, 2014, referenced weeks ending October 20, 2012 

through May 25, 2013, and weeks ending October 12, 2013 through June 21, 2014. An Advance 

Notice, dated July 29, 2014, referenced weeks ending October 8, 2011 through April 21, 2012. 

Two Advance Notices, dated August 1, 2014, referenced weeks ending September 22, 2007 

through August 16, 2008, and weeks ending September 20, 2008 through August 22, 2009.
3

By six separate Notices of Determination mailed on July 9 and 10, 

2014, the Service Center informed Claimant of office errors that caused non-fault 

overpayment3in 2012 and 2013, totaling $1454.00, and $20.00 in non-fault 

overpayment related to the exhaustion of Claimant’s dependents’ allowance. The 

last day for Claimant to appeal these determinations was July 24, 2014, and July 

25, 2014, respectively.

Thereafter, over the course of three days, from August 20, 2014 

through August 22, 2014, the Service Center sent Claimant more than twenty

Notices of Determination.4 C.R. Item No. 8. All told, the Service Center 

established fault overpayments5totaling $12,396.006and assessed approximately

 

3

Section 804(b)(1) of the Law provides for the establishment of non-fault overpayments 

and states:

Any person who other than by reason of his fault has received with 

respect to a benefit year any sum as compensation under this act to 

which he was not entitled shall not be liable to repay such sum but 

shall be liable to have such sum deducted from any future 

compensation payable to him with respect to such benefit year, or 

the three-year period immediately following such benefit year, in 

accordance with the provisions of this paragraph.

43 P.S. §874(b)(1).

4 Claimant asserts that she received a total of twenty-six notices during that three-day 

period. There are some discrepancies between the Claim Records (C.R. Item No. 1) and the 

Notices of Determination (C.R. Item No. 8) as to exactly how many notices were sent. For 

purposes of this Court’s analysis, the exact number is not necessary.

5

Section 804(a) of the Law provides for the establishment of fault overpayments and 

states, in pertinent part:

Any person who by reason of his fault has received any sum as 

compensation under this act to which he was not entitled, shall be 

liable to repay to the Unemployment Compensation Fund to the 

credit of the Compensation Account a sum equal to the amount so 

(Footnote continued on next page...)
4

$1,817.00 in penalties7for claim weeks ranging from September 29, 2007 through 

June 21, 2014. Id. The last day for Claimant to appeal these determinations was, 

respectively, September 4, 2014, September 5, 2014, and September 8, 2014.

Claimant filed appeals for each of the determinations on September 

14, 2015; a Statement of Balance Due mailed September 4, 2015, was attached to 

the appeals and stated that Claimant owed $8,426.32. C.R. Item No. 9. The 

Referee’s office addressed Claimant’s appeals in the nine aforementioned 

decisions.

The Referee held a hearing on October 16, 2015, to determine

whether Claimant had filed valid and timely appeals under Section 501(e) of the 

Law. Claimant appeared pro se and Employer did not attend. Claimant testified 

that her appeals were delayed because she was caring for an autistic, special needs 

child who requires attention twenty-four hours a day, seven days a week; she 

received some, but not all, of the notices that were sent; and she believed that some 

 

(continued...)

received by him and interest at the rate determined by the 

Secretary of Revenue. . . .

43 P.S. §874(a).

6

This includes a fault overpayment of $325.00 under the federal Emergency 

Unemployment Compensation (EUC) Act of 2008, Title IV of the Supplemental 

Appropriations Act of 2008, P.L. 110–252, 122 Stat. 2323, Sections 4001–4007, 26 U.S.C. 

§3304 note.

7 Under Section 801(c) of the Law, penalties in the amount of 15% of the overpaid

compensation shall be assessed against a claimant who “makes a false statement knowing it to be 

false, or knowingly fails to disclose a material fact to obtain or increase any compensation or 

other payment . . . and as a result receives compensation to which he is not entitled. . . .” 43 P.S. 

§871(c).
5

of these determinations had been previously adjudicated. Notes of Testimony at 6-

7.8

 

8 Claimant testified in relevant part, as follows:

R[eferee]: Okay. So did you receive this Notice of 

Determination, all these Notices?

C[laimant]: Some of them I have received; some of them I have 

not.

R: Okay. So when you received some of them, did you 

read them to see what they had to say?

C: I normally call them on the phone and I talk but 

they’re giving me like different things to talk about. They – when 

I asked them a question how is that, you know, because their pay 

cut is different from Aramark’s. Every time – before in the 

beginning I was going by my paystubs, by the amount on my 

paystubs. They told me not to do . . .

R: I understand all of that. Yes, I understand that but 

today’s issue is for me to know whether you filed a timely appeal 

or not. So after that, the other issues can be dealt with. So today, 

let’s concentrate and focus on why you did not appeal the 

Determinations in a timely manner.

C: Oh. The reason why I had an appeal – I have a nineyear-old son that’s autistic. He’s a special need child. He just 

started having seizures.

R: Okay. He’s autistic?

C: He’s autistic. He’s a special need child.

R: Okay. So though you received some of the 

Determinations, you were unable to appeal the Determinations?

C: Yes.

R: Why?

C: Because he was – yes, my son’s a 24-hours person, 

you know, a child that I have to take care of.

R: So he needs your attention 24 . . .

C: 24/7, yes.

R: Okay. All right. So that’s the reason? So . . .

C: Yes, that’s the main reason and he was just 

hospitalized in August two days. He had a very bad seizure. He’s 

been having seizures and I’m trying to like get like him . . .

R: I understand.

(Footnote continued on next page...)
6

 

(continued...)

C: . . . kind of different tests done on him now because 

they don’t know why he’s having them now.

R: Okay. Ma’am, the issue is the same for all nine 

cases.

C: Yes.

R: So for all nine cases, that’s the reason, right, that 

you did not appeal the Determinations?

C: Well, no, this is – I’m going to say – I’m not going 

to say that. I’m going to say about 2007, 2008, I did see a Referee 

here two years ago. They’re bringing some old cases up actually 

from the time when I did see a Referee here and I did contact UC 

Service and I did told [sic] them about it.

R: They are old.

C: Yes. And I . . .

R: [Inaudible] old.

C: . . . also had talked to a person by a name of Julie up 

in Harrisburg, PA about the whole situation and I have not heard 

back from her neither [sic].

R: All right. Okay.

C: And I’m talking – these cases is [sic] old from like 

eight, seven, eight years ago and it should have been already 

cleared, not – should be prolonged and going and going and going.

R: Okay.

C: I mean I’m not going to dispute like if I – I know 

I’m not going to owe like they saying that I owe. I know that’s 

impossible. But I do have my current paystubs.

R: We won’t need your current paystubs because we 

are talking a period in 2007, late 2007 and early 2008. So I don’t 

know whether you have your paystubs or not.

C: I don’t have none [sic] of my paystubs. I do have 

my paystubs from like 2013.

R: Okay.

C: 2014 and 2015 but all the rest I do not have.

R: Okay. All right. If there is nothing further, ma’am, 

then I’m going to bring this hearing to a close. Okay?

C: Okay.
7

The Referee found that the Notices of Determination were mailed to 

Claimant at her correct mailing address and were not returned as undeliverable; 

Claimant was not misinformed or misled regarding her right to appeal; and there 

was no evidence that the late filing was caused by fraud or its equivalent by the 

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

conduct. Findings of Fact Nos. 2-3, 7, 8. Therefore, the Referee dismissed all nine

appeals as untimely. Claimant appealed the Referee’s decisions to the Board, 

asserting that these notices addressed “old claims” and that she was not able to 

speak as desired or to offer proof at the hearing before the Referee. C.R. Item No. 

15.

The Board affirmed the Referee’s decisions and issued its own 

findings of fact and conclusions of law. C.R. Item No. 16. The Board discredited 

Claimant’s assertion that she did not receive some of the determinations and held 

that Claimant did not credibly overcome the presumption of receipt. Id. The 

Board also determined that Claimant did not credibly establish that caring for her 

son caused her to delay filing her appeals for more than a year. Id. The Board 

concluded that the filing of the late appeals was not caused by fraud or the 

equivalent by the administrative authorities, a breakdown in the appellate system,

or non-negligent conduct and dismissed Claimant’s appeals as untimely. Id.

On appeal to this Court,

9 Claimant argues that nunc pro tunc relief is 

appropriate due to the “unconscionable amount of paperwork” from the Service 

Center, which caused confusion and resulted in an administrative breakdown. She 

 

9 Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, and whether necessary findings of fact are 

supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review,

525 A.2d 841, 843-44 (Pa. Cmwlth. 1987).
8

contends that the long delay between the claim years and the determination notices

compounded her confusion, and that she believed these determinations were 

addressing matters that had been previously adjudicated.

However, Claimant’s argument concerning administrative breakdown 

due to the number of Notices of Determination that were sent and the undue delay

in their mailing was not raised before the Board and cannot be raised for the first 

time in this appeal. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. 

§703(a); Pa. R.A.P. 1551(a); Chapman v. Unemployment Compensation Board of 

Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011).

With respect to Claimant’s argument that she thought that the notices 

related to prior claims, she directs our attention to a 2013 Referee decision which 

reversed and/or modified the Service Center’s determinations for claim weeks in 

2009, 2010, and 2011, which is appended to her Brief as Exhibit A. However, that 

decision is not part of the certified record of this appeal. It is settled that “[a]n 

appellate court is limited to considering only those facts that have been duly 

certified in the record on appeal. For purposes of appellate review, that which is 

not part of the certified record does not exist. Documents attached to a brief as an 

appendix or in a reproduced record may not be considered by an appellate court 

when they are not part of the certified record.” B.K. v. Department of Public 

Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations omitted). Accordingly, 

we may not consider this decision in our disposition of this appeal. Moreover, we 

note that the claim weeks addressed in the 2013 Referee’s decision fall within the 

seven-year period discussed here, but are not the weeks at issue in this case.

Section 501(e) of the Law provides that a party has fifteen days to 

appeal a determination or it becomes final and the Board does not have the 
9

requisite jurisdiction to consider the matter. Hessou v. Unemployment 

Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). An 

appeal filed even one day after the fifteen-day appeal period is untimely. Id. The 

“failure to file an appeal within fifteen days, without an adequate excuse for the 

late filing, mandates dismissal of the appeal.” United States Postal Service v. 

Unemployment Compensation Board of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 

1993).

The Supreme Court has emphasized that the remedy of an appeal nunc 

pro tunc or “now for then” is intended to restore the right to appeal only when it 

was lost as the result of extraordinary circumstances. Union Electric Corp. v. 

Board of Property Assessment, Appeals and Review of Allegheny County, 746 A.2d 

581, 584 (Pa. 2000). To this end, nunc pro tunc relief may be warranted “where an 

administrative body acts negligently, improperly or in a misleading way.” Id. 

Likewise, an appeal nunc pro tunc may be granted where the extraordinary 

circumstances causing the delay were the result of non-negligent conduct of the 

claimant or her counsel; if the appeal is brought within a very short time after the 

claimant or counsel learns of, and has an opportunity to address, the delay; and the 

untimeliness and the time period which elapses is very short in duration. Cook v. 

Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996); 

see also, UPMC Health System v. Unemployment Compensation Board of Review, 

852 A.2d 467 (Pa. Cmwlth. 2004) (discussing the need for a petitioner in an appeal 

nunc pro tunc to proceed with due diligence once she knows of the need to take 

action).10

 

10 In UPMC Health System, the May 12, 2003 determination granting the claimant 

benefits was not mailed to the employer until June 18, 2003, well after the appeal deadline of 

(Footnote continued on next page...)
10

In support of her assertions that nunc pro tunc relief is warranted in 

this case, Claimant cites several unreported decisions of this Court involving delay 

attributable to a breakdown in administrative process. However, the Board 

specifically found that Claimant was not misinformed or misled by the 

unemployment compensation authorities regarding her right or the necessity to 

appeal. C.R. Item No. 16. Moreover, Claimant testified that the reasons she did 

not file timely appeals were that she was overwhelmed with caring for her son and

that she believed that these issues were previously adjudicated. Regardless of the 

number of notices that Claimant received, each advised her of the necessity to 

appeal, and Claimant’s misunderstanding of her duty in this regard is not sufficient 

to meet the burden required for the grant of a nunc pro tunc appeal. See, e.g., 

Finney v. Commonwealth, 472 A.2d 752, 753-54 (Pa. Cmwlth. 1984) (holding that 

a claimant’s inability to understand the proper procedure does not excuse the 

untimely filing of an appeal).

 

(continued...)

May 27, 2003, and it was sent to an incorrect address. The employer received it on June 19, 

2003, and filed an appeal twelve days later, on July 1. 2003. The employer argued it was entitled 

to appeal nunc pro tunc, but the Board concluded that the employer failed to meet its duty to 

appeal within a very short duration, as required by Cook, because it waited twelve days to 

appeal. 

On further appeal, we reversed the Board’s order. We acknowledged our holding in 

Stanton v. Department of Transportation, Bureau of Driver Licensing, 623 A.2d 925 (Pa. 

Cmwlth. 1993), denying a request for nunc pro tunc relief because the petition was filed eleven 

days after the law firm employee responsible for filing appeals had returned to work. Although 

the twelve day delay in UPMC Health System was of longer duration, we observed that prior 

cases involved periods of delay beyond the statutory appeal period. We held that the employer 

in UPMC Health System could not be deprived of the full fifteen-day period provided by statute, 

giving it until at least July 3, 2003, in which to appeal. 
11

Accordingly, the Board is affirmed.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Debra A. Gallagher, :

: No. 2742 C.D. 2015

Petitioner : Nos. 2751-2758 C.D. 2015

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 17th day of March, 2017, the orders of the 

Unemployment Compensation Board of Review, dated November 24, 2015, at 

Nos. B-584418. B-584419, B-584420, B-584421, B-584422, B-584423, B-584424, 

B-584425, B-584426, are AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge