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, 2023

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 Referee’s (Referee) decisions

dismissing Claimant’s appeals 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 (Department’s Notices), establishing overpayments 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 overpayments 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 Claimant 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 (20 [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 Department’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. When the 

Referee asked Claimant about filing his appeal on January 25, 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 Referee issued orders dismissing Claimant’s appeals as 

untimely under Section 501(e) of the Law. C.R., Item No. 8. The Referee noted 

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

or in any way misled regarding the right of appeal or the need to appeal.” Id. The 

Referee explained 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 appeal period.” Id.

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

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

received the Department’s Notices in August 2020, which notified him that the final 

day to file his appeals was August 11, 2020. Id. The Board found Claimant failed 

to file his appeals 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 appeals. 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 decisions. 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 issue 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]epartment, 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, 5/31/22. 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 Comp. 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 authority’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 appeals until January 

25, 2021. Claimant fails to establish that his delay of over five months in filing his 

appeals 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 communicating 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. Moreover, the Referee 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 applied. 
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 appeals 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-negligent circumstances that were 

beyond his control. Accordingly, we affirm the Board’s orders.

7

 

______________________________

STACY WALLACE, Judge

7

In his Petitions and Brief, Claimant attempts to challenge the merits of the Department’s Notices. 

However, because we affirm the Board’s dismissal of Claimant’s appeals 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 2023, the Unemployment Compensation 

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

______________________________

STACY WALLACE, Judge