IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kiara E. Calverley, :

Petitioner :

:
v. : No. 736 C.D. 2017

: SUBMITTED: January 19, 2018 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: February 12, 2018

Kiara E. Calverley (Claimant) petitions for review, pro se , of the April 11,
2017 order of the Unemployment Compensation Board of Review (Board ) affirming

the decision of a referee to dismiss Claimant’s appeal as untimely . We affirm.

Clai mant filed an application for unemployment compensation benefits on

December 11, 20 16

. The local service center determined that Claimant was
financially ineligible for benefits under section 404 (c) of the Unemployment
Compensation Law (Law) 1 because her employer, Sky Financial Services, Inc.

1 Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 804 (c)

. Section 404(c) of the Law provides that “[n]otwithstanding any other provision of this act, any employe with less than sixteen (16) ‘credit weeks ’ during the employe ’ s base year shall be ineligible to receive any amount of compe nsation .” 43 P.S. § 804(c)

.2

( Employer ), had not reported Claimant’s wages to the Commonwealth of
Pennsylvania. R. Item Nos. 1

- 2; N.T., 2/2/17, at 5. On December 20, 2016, t he local

service center mailed a N otice of F inancial D etermination (Notice) to Claimant’s
last known postal address. Ref.’s Findings of Fact, Nos. 1

- 2. 2 The Notice was not

ret urned by the United States Post al S e rvice as “ undeliverable. ” Id. , No. 3 . The

N otice info rmed Claimant that she had until January 4, 2017 to file a n appeal from

the Notice. Id. , No s

. 4

- 5. Claimant did not file an appeal on or before January 4,

2017. Id. , No. 6.
On January 9, 2017, Claimant appeal ed to the referee. Id. The referee held
an evidentiary hearing on February 2, 2017

. Claimant participated in the hearing by
telephone and was the only witness to testify. Employer did not attend the hearing.

See N.T., 2/2/17, at 1.
At the hearing, Claimant testified that she received the Notice before January

4, 2017 but did not file a n appeal before that date. Id. at 5

- 6. Claimant stated that

s he was unsure if she needed to file an appeal because she was still able to file her

bi

- weekly wage claims. Id. at 6. Claimant further testified that after multiple
, unsuccessful attempts to contact the Department of Labor and Industry (Department)

2 The Board adopted and incorporated the referee’s findings of fact and conclusions of law in their entirety

. See Bd.’s Order, 4/11/17, at 1.3

by phone to ask whether she should file an appeal , she decided to file an appeal on
January 9, 2017 “just in case.” Id.
On February 3, 2017, the referee dismissed Claimant’s appeal as untimely

u nder section 501(e) of the Law
, 43 P.S. § 821(e)

. 3 The referee found that Claimant
was neither misinformed nor misled regarding her right of appeal or her need to file
a timely appeal. Ref.’s Findings of Fact, No. 7. The referee also found that
Claimant’s filing of a late appeal was not the result of f raud, a breakdown in the
appellate system, or non

- negligent conduct. Id. , No. 8.

Claimant timely appealed to the Board, which adopted the referee’s findings

of fact and conclusions of law and affirmed the referee’s decision

. The Board

determined that Cl aimant failed to establish fraud or a n administrative breakdown

so as to justify her untimely appeal. The Board concluded:

The claimant did not file an appeal from the determination at issue by the J a nuary 4, 2017, deadline because she did not think [she] needed to given that [she] was able to continue filing her bi

- weekly claims. This does not

3 Section 501(e) of the Law provides:

Unless the claimant

. . . files an appeal

. . . from the determination contained in any notice required to be furnished by the [D] epartment [of Labor and Industry] under section [501] (a), (c) and (d) [of the Law]
, within fifteen calendar days after such notice was delivered to him personally, or was m ailed 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

.
43 P.S. § 821(e) (internal footnote omitted).4 constitute sufficient reason for finding her appeal timely [,] as claimants are specifically instructed to continue filing the i r bi

- weekly claims during the pendenc y of their appe als even if they were denied be n e fits. Bd.’s Order, 4/11/17, at 1. Claimant now appeals to this Court. 4

Claimant asserts that her late appeal was cause d by an administrative

breakdown. Specifically, she claims that she repeatedly called t he Department

before the a

ppeal deadline to inquire about the sta t us of her claim but was unable to

reach a representative

. Claimant asserts that her inability to speak with a Department
representative regarding her claim constituted a n administrative breakdown , thereby
justif y ing her filing of an untimely appeal. We disagree.

Section 501(e) of the Law requires a claimant to file an appeal from a
Department determination within 15 days of the date of mail ing to the claimant’s
last known post al addres s

. 43 P.S. § 821(e). The “15

- day time limit is mandatory
and subject to strict application. ” Vereb v. Unemployment Comp. Bd. of Review , 676

A.2d 1290, 1292 (Pa. Cmwlth. 1996) ( en banc )

. If the claimant does not file an
appeal w ithin 15 days, “ the determination becomes final, and the [Department] does
not have the requisite jurisdiction to consider the matter .” Id.

4 W here the party with the burden of proof was the only party to present evidence and did not prevail below, our scope of review is limited to determining whether the Board capriciously disregarded competent evidence and whether there was a constitutional violation or an error of law. Constantini v. Unemployment Comp. Bd. of Review , 173 A.3d 838, 842 n.4 (Pa. Cmwlth. 2017).5

A clai mant ha s “a heavy burde n to justify ” the filing of an untimely appeal

.
Constantini , 173 A.3d at 844

. “ Generally, an appea l nunc pro tunc may be allowed
when a delay in filing the appeal is caused by extraor dinary circumstances involving

‘ fraud or some breakdown in the court ’ s operation through a default of its officers. ’”

Cook v. Unemployment Comp. Bd. of Review , 671 A.2d 1 130, 1131 (Pa. 1996)

(citation omitted). To satisfy his or her burden of proof , the claimant must establish

that the Department “ engaged in fraudulent behavior or manifestl y wrongful or
negligent conduct” or that “ non

- negligent conduct beyond [the claimant’s ] control
caused the delay. ” Hessou v. Unemployment Comp. Bd. of Review , 942 A.2d 194,

198 (Pa. Cmwlth. 2008).
The Pennsylvania Supreme Court has explained that an a dministrative

breakdown occurs when “ an administrative board or body is neglige nt, acts
improperly [,] or unintentionally misleads a party. ” Union Elec. Corp. v. B d. of Prop

. Assessment, Appeals & Review
, 746 A.2d 581, 584 ( Pa. 2000) ; see Hessou , 942 A.2d

at 198 ( noting that examples of administrative breakdown include when referee

mails decision to incorrect address , Department does not provide adequate assistance

to claimant with cognitive impairment , or Department official misleads claimant as
to proper procedure for filing appeal ).
We reject Claimant’s assertion that he r failure to reach a Department
representative by phone before the appeal deadline constituted an administrative

breakdown. T he record contains no evidence that the Department misled or6

misinformed Claimant about h er right to appeal

. In fact, Claimant’s testimony

established that she received the Notice before the appeal deadline and was aware of

the January 4, 2017 deadline and her need to file a timely appeal. See N.T., 2/2/17,

at 5

- 6; Ref.’s Findings of Fact, No s . 7

- 8

. Claimant testified that she filed her appeal

late because she was unsure of her claim status

. However, n othing prevented

Claimant from filing a timely appeal while she attempted to seek clarification from
the Department. See Hessou , 942 A.2d at 200 ( concluding that Board’s alleged

failure to return claimant’s phone calls did not warrant nunc pro tunc relief where

n either B oard nor referee engaged in fraudulent behavior or negligent conduct and

referee’s decision notified c laimant of appeal period). The evidence established that

Cla imant’s own conduct caused the delay. We con clude that Claimant failed to
satisfy her burden of proving that her untimely appeal was caused by fraud, a n

administrative breakdown, or non

- negligent conduct beyond her control

. 5

5 In her brief, Claimant also asserts that she was no t required t o appeal from the D epartment’s December 20, 2016 Notice because her “reason for being denied eligibility was later found to be erroneous.” Claimant’s Br. at 6. In support of this argument, Claimant relies on the Department’s April 25, 2017 N otice of R evised S tanding O rder
, which was issued in another appeal involving Claimant

. See Claimant’s Br.
, Ex. B. However, because the April 25, 2017 N otice appended to Claimant’s brief i s not included in the certified record before this Co urt, we will not consider it. See Croft v. U

nem ployment Comp

. Bd. o

f Review , 662 A.2d 24, 28 (Pa. Cmwlth. 1995) ( en banc ) (“T his Court may not consider auxiliary information appended to a brief that is not part of the certified record on appeal.” )

.7

Accordingly, we affirm

.

__________________________________ ELLEN CEISLER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kiara E. Calverley, :

Petitioner :

:
v. : No. 736 C.D. 2017

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 12 th day of February, 201 8 , the order of the Unemployment
Compensation Board of Review , dated April 11, 2017 , is hereby affirmed.

________________________________ ELLEN CEISLER, Judge