IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rosalinda Marks, :
Petitioner :
:
v. : No. 1535 C.D. 2022
: Submitted: November 6, 2023
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: January 5, 2024
Rosalinda Marks (Claimant), pro se, petitions for review of the
Unemployment Compensation Board of Review’s (Board) order mailed December
2, 2022 (the Order) which affirmed the Unemployment Compensation Appeals
Referee’s (Referee) decision dismissing Claimant’s appeal as untimely pursuant to
Section 501(e) of the Unemployment Compensation Law (Law).1 After careful
review, we affirm the Order.
1
Section 501(e) of the Pennsylvania Unemployment Compensation Law, Act of December 5,
1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
I. Background and Procedural History
Claimant filed for regular unemployment compensation (UC) benefits on
March 29, 2020. Claimant’s Br. at 8; Certified Record (C.R.) at 119. The following
week Claimant received a notice of financial determination stating she qualified for
26 weeks of UC benefits. Claimant’s Br. at 12. On September 28, 2020, the Altoona
UC Service Center (Service Center) mailed (i) notices of determination finding
Claimant ineligible for regular UC benefits because she was self-employed2 as well
as (ii) a notice of non-fault3 overpayment finding Claimant received $5,022 in UC
benefits to which she was not entitled. C.R. at 49-56. The last day to timely appeal
these determinations was October 13, 2020. Id. at 51-53.
The Board received Claimant’s appeal of the overpayment determination4
(nearly one year later) on September 18, 2021. Claimant’s Br. at 15-16; C.R. at 58-
62. In July 2022, the Board sent Claimant a notice of hearing via mail, e-mail, and
the UC portal website. C.R. at 74-84, 87. A Referee conducted an in-person hearing;
however, Claimant did not attend, seek a continuance, or explain her absence. C.R.
at 86-88. Ultimately, the Referee determined Claimant’s appeal was untimely and
dismissed the appeal. Id. at 90-95. In August 2022, Claimant appealed the Referee’s
decision to the Board and attached a letter asserting: “I was unable to open and
2
Claimant owns and operates Rosalinda’s Express, a food court restaurant located at the
Johnstown Galleria shopping mall. Claimant’s Br. at 9; see Section 402(h) of the Law, 43 P.S. §
802(h).
3
To recover a non-fault overpayment, the Department of Labor and Industry will deduct “from
any future benefit payments during the benefit year when the benefit was paid and the three-year
period immediately following that benefit year. The deductions may not exceed one-third of the
weekly benefit rate . . . . Voluntary repayment is also accepted.” Office of Unemployment
Compensation, Overpayment of Benefits, https://www.uc.pa.gov/unemployment-
benefits/overpayment-of-benefits/Pages/default.aspx (last visited Jan. 4, 2024) (emphasis added).
4
Claimant did not appeal the Service Center’s determinations which found her ineligible for UC
benefits. Board’s Br. at 4.
2
operate my business due to the Galleria being closed as a result of Governor Wolf’s
order that prohibited the operation of businesses that [were] not life sustaining[.]”
Id. at 110. The Board, nonetheless, found Claimant failed to show a good cause
reason5 for appealing the Service Center’s decision beyond the deadline, and
affirmed the Referee’s decision by order mailed December 2, 2022. Id. at 101-03,
124-27.
II. Discussion
We review orders of the Board for violations of a claimant’s constitutional
rights, failure to engage in compulsory administrative practices and procedures, and
other errors of law. See Key v. Unemployment Comp. Bd. of Rev., 687 A.2d 409,
411 n.2 (Pa. Cmwlth. 1996); 2 Pa.C.S. § 704. We shall uphold the Board’s findings
of fact and subsequent adjudication “only so long as the record taken as a whole
contains substantial evidence to support them.” Henderson v. Unemployment Comp.
Bd. of Rev., 77 A.3d 699, 718 (Pa. Cmwlth. 2013). Substantial evidence is “relevant
evidence upon which a reasonable mind could base a conclusion.” Id.
Section 501(e) of the Law directed claimants to file a discretionary appeal
within 15 days of receiving a notice of determination from the Board. See 43 P.S. §
821(e).6 This determination “becomes final, and the Board does not have the
requisite jurisdiction to consider” an appeal once the deadline lapses. Darroch v.
5
We have consistently recognized three grounds under which a claimant may seek our permission
to revive his or her untimely appeal of a UC determination nunc pro tunc: (i) fraudulent conduct,
(ii) a breakdown in the administrative process, or (iii) a non-negligent circumstance. See Harris
v. Unemployment Comp. Bd. of Rev., 247 A.3d 1223, 1229–30 (Pa. Cmwlth. 2021). Here, the
Board explicitly found “no evidence that [Claimant’s] filing of late appeals was not caused by
fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or
by non-negligent conduct.” C.R. at 125. Claimant does not challenge this finding.
6
Act 30 of 2021 amended Section 501(e) of the Law and increased the deadline to timely file an
appeal of a Referee’s decision from 15 to 21 days. At the time Claimant filed her appeal, however,
the amendment to Section 501(e) was not yet effective. Board’s Br. at 7 n.5.
3
Unemployment Comp. Bd. of Rev., 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993)
(emphasis added). Indeed, even “an appeal filed one day after the expiration of the
statutory appeal period must be dismissed as untimely.” Dumberth v.
Unemployment Comp. Bd. of Rev., 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (citing
Moss v. Unemployment Comp. Bd. of Rev., 557 A.2d 839 (Pa. Cmwlth. 1989)).
Significantly, failure to appeal before the mandatory deadline creates a jurisdictional
defect this Court cannot overlook even “as a matter of grace or indulgence.” Carney
v. Unemployment Comp. Bd. of Rev., 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018).
Here, a reasonable mind could conclude the Board’s evidence, taken as a
whole, easily corroborates its decision to dismiss Claimant’s appeal as untimely
under Section 501(e). The Board received Claimant’s appeal of the Service Center’s
overpayment determination more than 300 days after the deadline. There is “no
evidence that the determinations mailed to the claimant were returned as
undeliverable by the postal authorities[,]” and “no evidence that the claimant was
misinformed or misled by the unemployment compensation authorities regarding her
right or the necessity to appeal.” C.R. at 124-25. It thus appears Claimant’s own
negligence caused her tardy appeal, and, because “a timely appeal is a jurisdictional
prerequisite[,]” the Service Center’s determinations are now final and unreviewable
by this Court. DiIenno v. Unemployment Comp. Bd. of Rev., 429 A.2d 1288, 1289
(Pa. Cmwlth. 1981).
III. Conclusion
Based on the foregoing,7 the Board properly affirmed Claimant’s appeal of
the Referee’s decision under Section 501(e) of the Law, and we affirm the Order
7
Given our disposition that the Referee lacked jurisdiction to consider Claimant’s untimely appeal,
we do not address the issues Claimant raises on appeal. See Wing v. Unemployment Comp. Bd. of
Rev., 436 A.2d 179, 181 (Pa. 1981).
4
including the portion wherein the Board directs the Department to “investigate
whether [C]laimant’s application for regular unemployment compensation benefits
. . . can be converted . . . to an application for Pandemic Unemployment Assistance
benefits.” Claimant’s Br. at 7; C.R. at 125.
______________________________
STACY WALLACE, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rosalinda Marks, :
Petitioner :
:
v. : No. 1535 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 5th day of January 2024, the December 2, 2022 decision and
order of the Unemployment Compensation Board of Review is AFFIRMED.
______________________________
STACY WALLACE, Judge