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 JUD GE WOJCIK FILED: March 17, 2017

Debra A. Gallagher (Claimant) petitions for rev iew from nine order s
of the Unemployment Compensation Board of Review (Board)

, dated November

24, 2015, which affirmed nine decisions of a R eferee dismissing as untimel y

Claimant’s appeal s 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 unemp loyment 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 rep orted for many benefit weeks. Certi fied Record (C.R.) Item No s

.
3 , 6

. Between July 2 1 and August 1, 2014, the Erie Service C enter sent five

Advance Noti ces to Claimant, alerting her t o the possibility that she had been

over paid for numerous benefit weeks specifically identified in the notices, during

20 07, 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 i nformed 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 resp ond to any of these notices.

(contin ued...)

was mailed to his last known post office address, and applies for a hearing, such determination of the department, w ith 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 we eks 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 Augus t 16, 2008

, and weeks ending September 20, 2008 through August 22, 2009.3 By six separate Notices of Determination mail ed on July 9 and 10,

2014, the Service C enter informed Claimant of office errors that caused non

- fault

overpayment 3 in 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 Cl aimant to appeal these determinations was July 24, 2014, and July

25, 2014, respectively.

Thereafter, o ver the course of three days, from August 20, 201 4

through August 22, 2014, the S ervice C enter sent Claimant more than twenty

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

established fault overpayments 5 totaling $12,396.00 6 and assessed a pproximately

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 ben efit 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

- ye ar 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 bet ween 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 L aw provides for the establishment of fault overpay ments 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 th e credit of the Compensation Account a sum equal to the amount so (Footnote continued on next page...)4

$1,817.00 in penalties 7 f

or 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 t o
the appeals and stated that Claimant owed $8,426.32. C.R. Item No. 9. T he

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

decisions

.
The R eferee held a hearing on October 16, 2015, to dete rmin e

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

(contin ued...)

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 kn ow, 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 nine

year

- old son that’s autistic. He’s a special need child. He just started having sei zures. 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 t o 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

(contin ued...)

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 n ot 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 t hey 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 d on’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 : O kay.7 The R eferee found that the Notices of Determin ation 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

. The refore, the R eferee dismissed all nine

appeals as untimely. Claimant appealed the R eferee’s decision s to the Board,

ass erting 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 R eferee’s decisions and issued its own

findings of fact and concl usions 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 Claiman t 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 appeal s was not caused by fraud or the

equivalent by the admin istrative authorities, a breakd ow n in the appellate system,

or non

- negligent conduct and d ismissed 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 S ervice

C enter , 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 Boa rd 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. Cmwlt h. 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 re cord 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 t he 2013 Refe ree’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 the9

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

“f ailure 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 opportuni ty 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

t his 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 a uthorities 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 believ ed 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) ( h olding that

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

untimely filing of an appeal).

(contin ued...)

May 27, 2003, and it was sen t 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 t o 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 w as 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 S

y stem could not be deprived of the full fifteen

- day period provided by statut e, giving it until at least July 3, 2003, in which to appeal.11 Accordingly, the Board is affirm ed.

MICHAEL H. WOJCIK, JudgeIN 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 17 th 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