IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Lombardo, : CASES CONSOLIDATED Petitioner :

:

v. : No. 334 C.D. 2022 : No. 335 C.D. 2022 : Submitted: February 3, 2023 Unemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE STACY WALLACE , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WALLACE FILED: April 3, 202 3

Michael Lombardo (Claimant) petitions for review , pro se, of the orders of

the Unemployment Compensation Board of Review (Board) mailed March 7, 2022,

which affirmed the Unemployment Compensation R eferee’s (Referee) decision s dismissing Claimant’s appeal s as untimely under Section 501(e) of the
Unemployment Compensation Law (Law). 1 After review, we affirm.

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

, 43 P.S. § 821(e).2 Background
Claimant filed an application for Pandemic Unemployment Assistance

(PUA) 2 effective February 2, 2020. Certified Record (C.R.), Item No. 1

. On July
27, 2020, the Department of Labor and Industry (Department) issued two Notices of
Determination ( Departmen t’s Notices )

, establishing overpayment s of Claimant’s

PUA benefits (PUA Notice) 3 and Federal Pandemic Unemployment Compensation
(FPUC) benefits (FPUC Notice)

. 4 C.R. , Item No. 2 at 11

- 14

. The Department’s

Notices indicated that these were non

- fraud over payments because they resulted
from a system error, rather than any error on the part of Claimant. Id . In addition,
the Department’s Notices indicated that Claimant’s last day to appeal was August

11, 2020. Id

. Claimant appealed both Department’s Notices on January 25, 2021 . C.R.,

Item No. 3 at 22

. On November 15, 2021, the Referee held a telephone hearing.

2 “PUA provides up to 79 weeks of benefits to qualifying individuals who are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work due to COVID

- 19

- related reasons . . . .” Office of Unemployment Compensation, Pennsylvania’s Pandemic Unemployment Assistance Portal, https://pua.benefits.uc.pa.gov/vosnet/Default.aspx (last visited March 31

, 2023).

3 The Department’s PUA Notice stated Clai mant had “received a total of $2,340.00 in Federal [PUA] under Section 2102(h), Title II, Subtitle A of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 (Public Law 116

- 136) and Title 20, Section 625.14, Code of Federal Regulations (2 0 [ C

. F

. R . §] 625) to which [he was] not entitled.” C.R., Item No. 1. The Department’s PUA Notice further stated: “This is a non

- fraud overpayment because it was due to a system issue, and not a claimant error.” Id

.

4 The Department’s FPUC Notice stated Claimant had “received a total of $7,200.00 in [FPUC] benefits under Section 2104(f), Title II, Subtitle A of the [CARES] Act of 2020 (Public Law 116

- 136) to which [he was] not entitled.” C.R., Item No. 1. The Departm ent’s FPUC Notice further stated: “This is a non

- fraud overpayment because it was due to a system issue, and not a claimant error.” Id

.3

C.R. , Item No. 7

. Claimant participated in the hearing pro se and was the sole
witness to testify. Id

. In relevant part

, Claimant admitted he received the
Department’s Notices around “the first week of August

. . . . ” Id

. at 70. W hen the

R eferee asked Claimant about filing his appeal on January 2 5

, 2021, Claimant stated :

I guess so, it was around that because I couldn’t

– I lost the paperwork because they sent that letter in there that I could appeal it. So I was looking for that paper and I told

– unemployment had to send me another one so then I mailed it out because I was

– they kept on taking all my money.

Id . at 72

- 73.
After the hearing, the R eferee issued orders dismissing Claimant’s appeal s as untimely under Section 501(e) of the Law. C.R., Item No. 8. The R eferee noted

there was “no evidence of record to demonstrate that [Claimant] was misinformed

or in a ny way misled regarding the right of appeal or the need to appeal

. ” Id

. The

R eferee explain ed that the timeliness provisions of the Law are “mandatory,” and
that he had “no jurisdiction to allow an appeal filed after the expiration of the

statutory appea l period.” Id

. Claimant appealed to the Board, which mailed its decision s on March 7, 2022.

C.R., Item No. 11. The Board affirmed the R eferee ’s decisions , finding Claimant

received the Department’s Notices in August 2020, which notified him that the fi nal
day to file his appeals was August 11, 2020. Id . The Board found Claimant failed
to file his appeal s by the deadline because he misplaced the Department’s Notices

. Id

. It concluded Claimant’s failure to file his appeals was due to his own negligence,4

which did not justify late appeal s

. Id

. Claimant timely filed petitions for review
(Petitions) in this Court

. 5

Discussion

This Court reviews unemployment compensation orders for violations of a
petitioner’s constitutional rights, violations of agency practice and procedure, and

other errors of law. 2 Pa. C.S. § 704. We also review whether substantial evidence
supports the findings of fact necessary to sustain the Board’s de cision s

. Id . The

Board is the fact

- finder in these cases and is entitled to assess witness credibility and
weight of the evidence. Hubbard v. Unemployment Comp. Bd. of Rev., 252 A.3d
1181, 1185 n.2 (Pa. Cmwlth. 2021 ) (citation omitted).

The sole issu e before this Court is whether Claimant filed timely appeals from

the Department’s Notices

. At the time Claimant received the Department’s Notices

, Section 501(e) of the Law provided:

Unless the claimant . . . files an appeal with the [B]oard, from the determination contained in any notice required to be furnished by the [D]epartment . . . within fifteen calendar days after such notice . . . was mailed to his last known post office address, and applies for a hearing, such determination of the [D]epar tment, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.

Id

. 6

5 By order dated May 31, 2022 , this Court granted the Board’s Application for Relief in the Form of a Motion for Consolidation because it appeared that “the cases involve the same parties, share the same record, and the appeals were heard by the same Unemployment Compensation Referee at the same time and the Board decisions were issued together

. . . . ” Order, 5/31/2 2. Therefore, we address Claimant’s Petitions regarding the Department’s PUA Notice and the Department’s
FPUC Notice in this opinion

.

6 We note that in the Act of June 30, 2021, P.L. 173, the General Assembly extended the appeal deadline in Section 501(e ) of the Law from 15 days to 21 days, which applies to notices of (Footnote continued on next page...)5

A claimant’s failure to timely appeal within the deadline is a jurisdictional

defect, which this Court may not overlook or disregard. Carney v. Unemployment
Comp. Bd. of Rev. , 181 A.3d 1286, 1288 (Pa. Cmwlth. 2019) (citation omitted).

Further, this Court may not extend an appeal deadline as a matter of grace or
indulgence. Russo v. Unemployment Com p. Bd. of Rev. , 13 A.3d 1000, 1003 (Pa.
Cmwlth. 2010). To justify an untimely appeal and obtain nunc pro tunc relief, a
claimant bears a heavy burden of demonstrating extraordinary circumstances
involving (1) fraud or a breakdown in the administrative aut hority’s operation or (2)

non

- negligent conduct of the claimant that was beyond his control. Hessou v.
Unemployment Comp. Bd. of Rev. , 942 A.2d 194, 198 (Pa. Cmwlth. 2008).

Here, Claimant admitted he received the Department’s Notices in August

2020. The Department’s Notices informed Claimant he had 15 days to file his
appeals, or until August 11, 2020

. Claimant did not file his appeal s until January

2 5 , 2021. Claimant fails to establish that his delay of over five months in filing his
appeal s was the result of non

- negligent circumstances. In his brief, Claimant asserts
multiple times that he could not appeal in a timely manner due to the Department
“not providing him the correct documentation.” Claimant’s Br. at 9; see also

Claimant’s Br. at 9 (“The reason the Claimant could not appeal this nonfraud
overpayment was due to the [Department] not providing him the right document to
appeal.”); Claimant’s Br. at 10 (“Claimant expects the Court to dismiss the case, due
to the [Department] not commun icating with him, and not providing the right
documentation in a timely fashion to appeal.”). However, Claimant fails to identify
what documentation he was waiting on or why such documentation was necessary
to his being able to file a timely appeal. Moreo ver, the R eferee and the Board found

determination issued after July 24, 2021

. Because the Department’s Notices here were issued before July 24, 2021, the 15

- day appeal period still applie d

.6

as a fact, based on the evidence of record, that it was Claimant’s own negligence in
misplacing the Department’s Notices that caused his appeal to be untimely filed.

Conclusion

Therefore, we conclude the Board properly dismissed Claimant’s appeal s as untimely under Section 501(e) of the Law. Claimant failed to credibly demonstrate
that his delay was caused by extraordinary circumstances involving fraud, a
breakdown in the administrative process, or non

- negligen t circumstances that were
beyond his control . Accordingly, we affirm the Board’s order s

. 7

______________________________ STACY WALLACE , Judge

7 In his Petitions and Brief, Cla imant attempts to challenge the merits of the Department’s Notices. However, because we affirm the Board’s dismissal of Claimant’s appeal s as untimely, we do not reach the merits of his claims.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Lombardo, : CASES CONSOLIDATED Petitioner :

:

v. : No. 334 C.D. 2022

: No. 335 C.D. 2022 Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW , this 3rd day of April 202 3

, the Unemployment Compensation

Board of Review’s order s mailed March 7, 2022 are AFFIRMED

.

______________________________ STACY WALLACE , Judge