IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1220 C.D. 2017

Respondent : Submitted: February 23, 2018

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: April 6, 2018

Catherine Johnson (Claimant) petitions for review of the August 14, 

2017 order of the Unemployment Compensation Board of Review (Board) affirming 

the decision of the referee, which dismissed Claimant’s appeal as untimely. We 

affirm.

Claimant had been receiving unemployment compensation (UC) 

benefits since approximately early April 2017. See Certified Record (C.R.) Item No. 

1. On May 23, 2017, the Erie UC Service Center (Department) issued two Notices 

of Determination. The first determination found Claimant was not ineligible for 

benefits under Section 402(b) of the UC Law1(Law), but was ineligible for benefits 

 

1 Section 402(b) of the Unemployment Compensation Law (Law) provides that a claimant 

shall be ineligible for benefits for any week in which her unemployment is due to voluntarily 
2

under Section 401(d)(1) of the Law2 because Claimant was not able and available 

for work. Board’s Findings of Fact (F.F.) No. 1, C.R. Item No. 5. Accordingly, the 

Department determined that Claimant was ineligible for benefits. C.R. Item No. 5. 

The second determination imposed a fault overpayment in the amount of $2,155.00 

pursuant to Section 804(a) of the Law,3 because Claimant was determined to be 

ineligible for benefits due to not being able and available for work and was receiving 

benefits for which she was not eligible. Id.; see F.F. No. 1. Both Notices of 

Determination stated that the final day to timely appeal the determinations was June 

7, 2017. F.F. No. 6, C.R. Item No. 5. 

On June 8, 2017, Claimant filed her appeal. F.F. No. 8; see C.R. Item 

No. 6. Subsequently, a referee held a hearing at which Claimant, her daughter, a 

witness for Delaware Valley Comfort at Home LLC (Employer), and Employer’s 

tax representative appeared and testified. See C.R. Item No. 9. After the hearing, 

the referee issued a decision dismissing Claimant’s appeal as untimely. C.R. Item 

No. 10. Claimant appealed to the Board, which affirmed. C.R. Item No. 12, Board’s 

Decision at 3. Claimant now petitions this Court for review of the Board’s order.4 

 

leaving work without cause of a necessitous and compelling nature. Act of December 5, 1936, 

Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).

2 Section 401(d)(1) of the Law provides that a claimant must be able and available for 

suitable work in order to qualify for unemployment compensation benefits. Section 401(d)(1) of 

the Law, 43 P.S. § 801(d)(1).

3 Section 804(a) of the Law provides that any person who by reason of her fault has 

received unemployment compensation to which she was not entitled shall be liable to repay the 

Unemployment Compensation Fund. Section 804(a) of the Law, 43 P.S. § 874(a). 

4 Our review is limited to determining whether constitutional rights were violated, whether 

the adjudication is in accordance with the law, and whether necessary findings of fact are supported 

by substantial evidence. 2 Pa. C.S. § 704.
3

Before this Court, Claimant first argues that the Board’s findings are 

unsupported by the record, and thus, its decision is wrong. Claimant contends that 

she offered evidence to establish an administrative breakdown entitling her to file 

her appeal late. In particular, Claimant refers to a telephone conversation with an 

UC representative in which Claimant asserts she was led to believe the issue 

regarding her availability for work was resolved. Claimant points out that the Board 

found that during the call, Claimant told the Department that she made an error in 

filing and was able and available for work. She further states the Board erroneously 

found that this conversation took place on May 25, 2017, when it actually took place 

on May 23, 2017, and that such misstatement indicates the Board’s lack of 

consideration of the reasonableness of Claimant’s conduct. 

Claimant also argues that she is entitled to file her appeal late because 

her untimely appeal was due to non-negligent circumstances. Specifically, Claimant 

states that she was not living full-time at her residence because she broke her wrist 

and needed to stay elsewhere with family for assistance. Claimant states she 

periodically returned to her home to check mail. Once Claimant was aware of the 

determinations, she immediately filed an appeal. 

Section 501(e) of the Law provides, among other things, that unless a 

claimant files an appeal from a determination within 15 calendar days after such 

notice was mailed to her last known post office address, such determination shall be 

final. 43 P.S. § 821(e). The provisions of the Law regarding the time to file an 

appeal are mandatory. United States Postal Service v. Unemployment Comp. Bd. of 

Review, 620 A.2d 572 (Pa. Cmwlth. 1993). The referee and the Board lack 

jurisdiction to consider an untimely appeal. See Edwards v. Unemployment Comp. 

Bd. of Review, 639 A.2d 1279, 1282 (Pa. Cmwlth. 1994). Therefore, the “failure to 
4

file an appeal within fifteen days, without an adequate excuse for the late filing, 

mandates dismissal of the appeal.” United States Postal Service, 620 A.2d at 573. 

However, an untimely appeal may be allowed upon a showing of fraud or breakdown 

in the administrative process, or where the untimeliness is not the result of the 

petitioner’s negligence. Id. at 573-74. A breakdown in the administrative process 

occurs “where an administrative board or body is negligent, acts improperly or 

unintentionally misleads a party.” Hessou v. Unemployment Comp. Bd. of Review, 

942 A.2d 194, 198 (Pa. Cmwlth. 2008) (citing Union Electric Corp. v. Bd. of Prop. 

Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000)).

“[T]he claimant bears a heavy burden to justify an untimely appeal.” RomanHutchinson v. Unemployment Comp. Bd. of Review, 972 A.2d 1286, 1288 n.1 (Pa. 

Cmwlth. 2009).

With respect to Claimant’s argument that there was an administrative 

breakdown in regard to her telephone conversation with a UC representative, 

Claimant’s argument is without merit. Claimant insists that her telephone 

conversation with the UC representative took place on May 23, 2017, which 

Claimant maintains was two days before the Department issued the Notices of 

Determination, as she contends they were issued on May 25, 2017. However, 

Claimant is mistaken about the facts. Additionally, the evidence, including 

Claimant’s own evidence, does not support her assertions. The Department’s 

Notices of Determination were issued on May 23, 2017, not May 25, 2017. See F.F. 

No. 1, C.R. Item No. 5. The Department’s claim record shows that Claimant spoke 

with the Department on “170525” or May 25, 2017. C.R. Item No. 1. Additionally, 

Claimant’s petition for appeal from the Department’s determinations states the date 

of the determinations being appealed is “5/23/2017” and further states, “[m]y appeal 
5

is 1-day late because on 5/25/2017, I called a PA Unemployment rep at 2:45 pm and 

by our conversation I believed I had completed an appeal.” C.R. Item No. 6, Ex. 6. 

At the hearing, the referee asked Claimant when she spoke to a Department 

representative, and Claimant responded the 25th of May.5 C.R. Item No. 9, 7/3/17 

Transcript of Testimony (T.T.) at 10. Thus, the Board’s finding that Claimant did 

not contact the Department until May 25, 2017, which was two days after the 

Notices of Determination were mailed, is supported by substantial evidence.

6

 

Notwithstanding when the call occurred, Claimant argues that 

following the conversation, she believed the issue regarding her availability for work 

had been resolved. However, the Board found that, during the May 25, 2017 call, 

the Department told Claimant to file her bi-weekly claims and that a determination 

was forthcoming. F.F. No. 2. This finding is supported by the entry in the 

Department’s claim record. See C.R. Item No. 1. Further, the Board found that there 

was no evidence that Claimant was misinformed or misled by UC authorities 

regarding her right or necessity to appeal. F.F. No. 9. Indeed, as the Board noted, 

the Notices of Determination did not indicate that an appeal could be filed over the 

phone. Board’s 8/14/17 Decision at 2; see C.R. Item No. 5. Thus, the Board did not 

find Claimant’s belief that she resolved the availability issue during her conversation 

to be reasonable. Id. Further, the Board found that there was no credible evidence 

in the record that Claimant was told that she did not need to file an appeal. Id. Based 

on the Board’s findings, there is nothing to support a determination that the 

 

5 Claimant initially stated the 27th but then stated the 25th of May. C.R. Item No. 9, 7/3/17 

Transcript of Testimony (T.T.) at 10.

6

It is well-settled that the Board is the ultimate arbiter of credibility in UC cases. Waverly 

Heights, Ltd. v. Unemployment Comp. Bd. of Review, 173 A.3d 1224, 1227 (Pa. Cmwlth. 2017). 

We are bound by the Board’s findings so long as there is substantial evidence in the record, taken 

as a whole, supporting those findings. Id. at 1228. 
6

Department was negligent, acted improperly or unintentionally misled Claimant 

such that we could conclude that there was a breakdown in the administrative 

process. Claimant’s subjective belief that her claim was resolved does not constitute 

a breakdown in the administrative process justifying a late appeal. See Constantini 

v. Unemployment Comp. Bd. of Review, 173 A.3d 838, 845-46 (Pa. Cmwlth. 2017) 

(holding that a claimant’s misunderstanding of a Department representative’s 

statement concerning when claimant had to file an appeal, along with her failure to 

read the notice given her misunderstanding, did not constitute an administrative 

breakdown that would warrant the filing of a late appeal).7 

Next, we address Claimant’s argument that she should be permitted to 

file a late appeal because her conduct was non-negligent given that she could not 

stay at her home and had to reside with her family for medical reasons. This 

argument also lacks merit. 

The Board found that, during the May 25, 2017 call, the Department 

told Claimant to file her bi-weekly claims and that a determination was forthcoming. 

F.F. No. 2. Further, the Board found, and Claimant does not dispute, that the 

determinations were mailed to her last known post office address. F.F. No. 3. As 

the Board stated, it was Claimant’s responsibility to collect her mail in a timely

manner, even if she was living elsewhere. Claimant’s failure to collect her mail, 

 

7 Claimant also argues that there was an administrative breakdown because she received 

questionnaires, which sought clarification on her availability for work and which listed two 

different due dates, May 19, 2017 and May 22, 2017, for a response. Claimant apparently is 

referring to the Advance Notices and Claimant Cover Letter and Questionnaire, which she attached 

to her brief as exhibits. To the extent Claimant included documents that are not part of the certified 

record before this Court, we may not consider them. More importantly, however, these documents 

and their due dates are irrelevant to the issue before us. The issue before us is whether Claimant 

established grounds to file an untimely appeal from the Notices of Determination. 
7

even though she was told a determination was forthcoming, and/or failure to notice 

the appeal deadline date results from circumstances within Claimant’s own control 

and, therefore, her own negligence.8 See Ho v. Unemployment Comp. Bd. of Review, 

525 A.2d 874 (Pa. Cmwlth. 1987) (finding an appeal untimely where a claimant,

who had to leave the country to attend to her sick mother in Malaysia eight days 

before the Department made its determination, was made aware that she had 

received a letter but failed to take measures to ascertain the contents of the letter 

resulting in her late filing). Thus, Claimant failed to establish that her conduct was 

non-negligent such that she would be entitled to file a late appeal.

Because Claimant failed to establish that her untimely appeal was 

caused by either fraud, a breakdown in the administrative process, or was the result 

of her non-negligent conduct, the Board did not err in affirming the referee’s 

decision dismissing Claimant’s appeal as untimely. See United States Postal 

Service.

Accordingly, we affirm.9

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

8 Both Claimant’s testimony and her daughter’s testimony indicate that Claimant simply 

may not have timely noticed the appeal deadline. When the referee asked Claimant if she noticed 

the last day to appeal on the determination, Claimant responded, “I did not really see it on time.” 

N.T. at 10. Additionally, her daughter testified that although she could not say when her mother 

saw the mail or the date on it, as soon as she saw the paperwork, she helped her mother file the 

appeal. N.T. at 16.

9 Because of our disposition, we need not address Claimant’s arguments concerning 

whether she was able and available for work. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson, :

 Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1220 C.D. 2017

Respondent :

O R D E R

AND NOW, this 6

th day of April, 2018, the order of the Unemployment 

Compensation Board of Review dated August 14, 2017 is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge