G.S. Flores v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel S. Flores, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1398 C.D. 2023

Respondent : Submitted: November 7, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: December 9, 2024

Gabriel S. Flores (Claimant), pro se, petitions this Court for review of

the August 24, 2023 decision and order of the Unemployment Compensation Board

of Review (Board) affirming the dismissal of Claimant’s appeal as untimely. Upon

review, we are constrained to affirm.

I. Background

On February 1, 2022, Claimant started basic military training. Certified

Record (C.R.) at 100 & 108. In two separate determinations dated February 10, 2022

and mailed to Claimant’s home address in Pennsylvania, the Pennsylvania

Department of Labor and Industry, Office of Unemployment Compensation Service

Benefits (Department) concluded that Claimant did not qualify for unemployment

compensation (UC) benefits because he left employment to seek other work and that

he was required to repay a fault overpayment totaling $656 for claim weeks ending

February 8 and 15, 2020. Id. at 25 & 35. In each determination, the Department

advised Claimant that he had 21 days from the date of the determination to submit

an appeal and that his appeal had to be received or postmarked by March 3, 2022.

Id. at 25-26 & 35. Each determination provided detailed instructions for filing an

appeal online, by mail, by fax, by email, or in person. Id. at 26-27 & 35-38.

Claimant’s wife emailed the Department after receiving the two

determinations of the Department in mid-February 2022, receiving a response on

June 2, 2022. C.R. at 100, 108 & 131. After completing his basic military training

in March 2022, Claimant emailed the Department in early April 2022, and the

Department responded on July 15, 2022. Id. at 108 & 131. On October 26, 2022,

Claimant appealed the Department’s February 10, 2022 overpayment determination

through the UC online portal. Id. at 47 & 108. He apparently did not appeal the

determination of ineligibility.

On January 10, 2023, a referee for the Board conducted a hearing by

telephone in which Claimant and his wife participated.1 See C.R. at 91-92. Claimant

testified that he worked for Lowe’s Home Improvement (Employer) from March

2016 to July 2021. Id. at 97. Claimant filed for and began receiving partial

unemployment benefits in 2019. Id. at 101. According to Claimant, the Department

incorrectly assessed an overpayment, as he was “underemployed” and working

fewer hours for Employer during the weeks at issue. Id. at 99. Claimant testified

that he “took action as soon as [he] . . . was able to get a computer and phone and

try to figure out what was going on,” that he “didn’t actually have the mail [him]self”

as he “was in California at the time,” and that he was “going off the word of [his]

wife.” Id. at 102. After Claimant completed basic military training, his wife

1

Employer did not participate in the hearing. C.R. at 108.

2

forwarded his mail to California. Id. at 102. Claimant testified that he also emailed

the Department on July 15, 2022, but did not receive a response until October 29,

2022. Id. at 103-04. Further, Claimant averred that “[o]ne of those emails that [he

had] received that summer had told [him] that [he] could appeal it at that point,

essentially.” Id. at 104.

Claimant’s wife testified that the Department responded on June 2,

2022 to her initial email inquiry, informing her of the need to obtain power of

attorney in order to communicate with the Department regarding its determinations.

Id. at 101. Attesting that Claimant did not have access to a phone or a computer

during basic military training, that she “had no contact with him during” his training,

and that she first had contact with him when he finished training on March 24, 2022,

Claimant’s wife contradicted her husband’s testimony that during this training, his

communication with his wife “was very brief, like less than five-minute intervals a

week.” Id. at 102-03.

By decision dated January 19, 2023, the referee dismissed Claimant’s

appeal as untimely under Section 501(e) of the Unemployment Compensation Law

(UC Law),2 43 P.S. § 821(e), reasoning that

Claimant did not provide testimony to show fraud or a

breakdown in the administrative process which may have

caused the late appeal. The service center determinations

were received in a timely manner by [] Claimant’s wife in

early February of 2022. The [Department’s] [n]otices of

[d]etermination explain appeal procedures. []Claimant

had access to the [n]otices of [d]etermination upon

completion of basic training on March 24, 2022.

Notwithstanding any other circumstances of this case, the

[r]eferee can find no reasonable explanation for the six-

month delay in the actual filing of the appeal.

2

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§§ 751-919.10.

3

The provisions of [] Section [501(e)] of the Law, [43 P.S.

§ 821(e),] are mandatory, and the [r]eferee has no

jurisdiction to allow any appeal filed after the expiration

of the statutory appeal period. Therefore, [] Claimant’s

appeal is dismissed.

C.R. at 108 & 110. Claimant appealed the dismissal. Id. at 117.

By decision mailed August 24, 2023, the Board affirmed, explaining:

The record shows that while [] [C]laimant was in basic

[military] training, his wife informed [him] of

disqualifying and overpayment determinations prior to the

final date to appeal. Even assuming he had good cause to

file an untimely appeal because he was in basic [military]

training, [] [C]laimant returned from [] training on March

24, 2022. However, . . . [he] did not file an appeal of the

[Department’s February 10, 2022] determination[] until

October 26, 2022. The delay of over six months after his

return does not amount to good cause. These

circumstances do not show that the late appeal was caused

by fraud, a breakdown in the administrative process, or by

non-negligent conduct.

The Board and its [r]eferees have no jurisdiction to decide

the merits of an untimely appeal.

Id. at 131-32. Claimant then petitioned this Court for review.

II. Issues

Before this Court,3 Claimant argues that the Board erred in affirming

the dismissal of his appeal as untimely, in that an administrative breakdown within

the Department justified nunc pro tunc relief. See Claimant’s Br. at 11-13. Claimant

contends that “[t]he delayed response from the . . . [D]epartment following [his]

3

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

an error of law was committed, or whether the findings of fact were unsupported by substantial

evidence.” Miller v. Unemployment Comp. Bd. of Rev., 83 A.3d 484, 486 (Pa. Cmwlth. 2014)

(citing Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704)).

4

wife’s initial inquiries, coupled with the nearly four-month gap until [he] was

informed that verbal consent was needed to discuss the claim, reflects a procedural

breakdown[.]” Id. at 11 (citing U.S. Postal Serv. v. Unemployment Comp. Bd. of

Rev., 620 A.2d 572, 573 (Pa. Cmwlth. 1993) (USPS)).4 Further, Claimant maintains

that his “ability to respond to [the Department’s] notices was critically hindered by

his military service, as he was in [b]asic [t]raining when the notice was issued and

later stationed with limited freedom to resolve the issue.” Id. Claimant asserts that

“[t]his situation necessitates the consideration of legal protections afforded to

servicemembers, such as those outlined in USERRA and SCRA,5 highlighting the

4

Claimant refers to this Court’s decision in USPS by name, but fails to provide the

corresponding legal citation. We presume that Claimant intended to reference the case cited above.

We note the directive that argument in an appellate brief “shall . . . [contain] such discussion and

citation of authorities as are deemed pertinent,” and that such citations “shall be in accordance with

[Appellate Rule] 126.” Pa.R.A.P. 2119(a), (b); see also Pa.R.A.P. 126(a) (providing, inter alia,

that “[w]hen citing authority, a party should direct the [C]ourt’s attention to the specific part of the

authority on which the party relies”).

5

Claimant presumably refers to the Uniformed Services Employment and Reemployment

Rights Act, 38 U.S.C. §§ 4301-4335 (USERRA), and the Servicemembers’ Civil Relief Act, 50

U.S.C. §§ 3901-4043 (SCRA), respectively. “USERRA provides that returning servicemembers

are to be reemployed in the job that they would have attained had they not been absent for military

service . . . with the same seniority, status and pay, as well as other rights and benefits determined

by seniority.” Your Rights Under USERRA, U.S. DEP’T OF LAB., available at

https://www.dol.gov/agencies/vets/programs/userra/aboutuserra (last visited Dec. 6, 2024). The

SCRA affords servicemembers various forms of protection and relief, including protection from

eviction, a cap on interest rates, and the opening of default judgments. Military Compensation:

SCRA, U.S. DEP’T OF DEFENSE, available at https://militarypay.defense.gov/Benefits/Servicemem

bers-Civil-Relief-Act/ (last visited Dec. 6, 2024).

This is obviously not a USERRA situation which deals with employment and

reemployment. Rather, this is an appropriate case where the SCRA could have been invoked.

Under 50 U.S.C. § 3932(a) a court or administrative body may sua sponte grant a stay, or the

servicemember may apply for a stay. Since Claimant did not properly apply for a stay, his only

conceivable argument is that the Referee abused his discretion by not imposing a stay sua sponte.

While we are aware that such an argument is conceivable, Claimant does not make this argument.

5

need for procedural flexibility and equitable treatment in administrative processes.”

Id. Moreover, Claimant maintains that “his wife’s repeated, unsuccessful attempts

to access the [Department’s] helpline and receive clear guidance” and “[t]he

consistent unavailability of resources constitute[d] a significant administrative

barrier[.]” Id. at 12 (citing USPS). Claimant insists that “[s]ubstantial

miscommunication from [the Department], including incorrect claims about [his]

employment history, led to confusion and a delay in filing an appeal.”6 Id. (citing

Stana v. Unemployment Comp. Bd. of Rev., 791 A.2d 1269 (Pa. Cmwlth. 2002)).7

Thus, Claimant maintains that “[e]rroneous information from [the Department]

regarding [his] employment, significant delays in receiving guidance, and the

mismanagement of his queries while fulfilling military duties—compounded by

[the] responsibilities of moving his family and caring for a newborn—strongly

support the filing of an appeal nunc pro tunc.” Id. at 13 (citing Stana).

The Board counters that Claimant fails to establish that an

administrative breakdown within the Department justifies pursuing his tardy appeal

nunc pro tunc. See Board’s Br. at 6-14.

Claimant did not invoke the SCRA in the underlying matter and before this Court makes only a

passing reference to it. Further, Claimant fails to articulate any abuse of discretion by the Referee

in not staying the proceedings sua sponte in order that Claimant’s October 26, 2022 appeal would

be timely. As such, the SCRA cannot provide relief to Claimant under the circumstances of this

case.

6

Claimant presumably references the averment elsewhere in his appellate brief that the

Department “erroneous[ly] communicated on July 15, [2022] that [he] had terminated his

employment with [Employer] in February 2020—a year and a half prior to the actual resignation

date in July 2021,” and that this discrepancy “was the basis for the overpayment determination.”

Claimant’s Br. at 8. As noted above, Claimant also testified that his “underemploy[ment]” during

the weeks at issue caused the Department to assess the fault overpayment. C.R. at 99.

7

As with USPS, Claimant referenced Stana by name only, without any legal citation. See

supra note 5.

6

III. Discussion

Section 501(e) of the Law provides that

[u]nless the claimant or last employer or base-year

employer of the claimant files an appeal with the [B]oard,

from the determination contained in any notice required to

be furnished by the [D]epartment under [this] section . . . ,

no later than [21] calendar days after the “Determination

Date” provided on such notice, 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) (footnote omitted); see also U.S. Postal Serv., 620 A.2d at 573-74

(explaining that “[t]he appeal provisions of the Law are mandatory,” and that

“failure to file an appeal within [21 days], without an adequate excuse for the late

filing, mandates dismissal of the appeal”).

However, “an appeal nunc pro tunc may be allowed when a delay in

filing the appeal is caused by extraordinary circumstances involving ‘fraud or some

breakdown in the court’s operation through a default of its officers.’” Cook v.

Unemployment Comp. Bd. of Rev., 671 A.2d 1130, 1131 (Pa. 1996) (citations

omitted); see also Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 198

(Pa. Cmwlth. 2008) (holding that a claimant “may satisfy th[e] heavy burden” of

demonstrating entitlement to appeal nunc pro tunc by “show[ing] the administrative

authority engaged in fraudulent behavior or manifestly wrongful or negligent

conduct”). A claimant may also proceed nunc pro tunc upon establishing that “non-

negligent conduct beyond his control caused the delay” contributing to the tardy

appeal. Hessou, 942 A.2d at 198; see also Criss v. Wise, 781 A.2d 1156, 1160 (Pa.

2001) (stating that “[t]he exception for allowance of an appeal nunc pro tunc in non-

negligent circumstances is meant to apply only in unique and compelling cases in

7

which the appellant has clearly established that []he attempted to file an appeal, but

unforeseeable and unavoidable events precluded [him] from actually doing so”).

“The burden to establish the right to have an untimely appeal considered is a heavy

one because the statutory time limit established for appeals is mandatory.” Hessou,

942 A.2d at 198.

Claimant appealed the Department’s February 10, 2022 overpayment

determination through the UC online portal on October 26, 2022, nearly eight

months after the March 3, 2022 appeal deadline. C.R. at 47 & 108. Claimant

maintains that an administrative breakdown in the Department supports an appeal

nunc pro tunc, citing the Department’s delayed response to his wife’s initial inquiries

in February 2022. Claimant’s Br. at 11. He also contends that the Department’s

allegedly incorrect claims about his employment history led to confusion and his

delay in filing an appeal.

However, the appeal instructions appended to the Department’s

February 10, 2022 determinations provided clear notice of the March 3, 2022 appeal

deadline and detailed guidance on how to take an appeal. See C.R. at 25-26 & 35-

38. Claimaint’s assertions do not support his request for nunc pro tunc relief, as they

could not have misled him regarding “the availability, timing or need for an appeal.”8

Greene v. Unemployment Comp. Bd. of Rev., 157 A.3d 983, 992-94 (Pa. Cmwlth.

2017) (deeming nunc pro tunc relief unavailable where, although the claimant

initially received “misinformation” regarding the deductibility of severance

payments from UC benefits, “nothing in the record indicate[d] the [UC]

8

Moreover, presuming that Claimant intends to reference the purported misinformation

regarding his employment history communicated by the Department in July 2022, this

communication could not have contributed to Claimant’s tardy appeal from the February 10, 2022

overpayment determination.

8

representatives attempted to dissuade or discourage [the c]laimant from appealing

the notice of determination”; reasoning “that not every misstatement by an

apparently authoritative person will justify a nunc pro tunc appeal[, but] rather, the

misinformation must relate to the availability, timing or need for an appeal”).

Regarding Claimant’s contention that restrictions on communication

during basic military training during February and March 2022 “critically hindered”

his ability to appeal the Department’s determination, Claimant’s Br. at 11, the Board

determined that

[e]ven assuming he had good cause to file an untimely

appeal because he was in basic [military] training, []

[C]laimant returned from [] training on March 24,

2022 . . . . [Claimant] did not file an appeal of the

[Department’s February 10, 2022] determination[] until

October 26, 2022. The delay of over six months after his

return does not amount to good cause.

C.R. at 131-32. Nevertheless, Claimant insists that the “responsibilities of moving

his family and caring for a newborn,” combined with the purported administrative

breakdown within the Department, support entitlement to nunc pro tunc relief.

Claimant’s Br. at 13. However, “[t]he pressure of life events is [] insufficient to

excuse an untimely appeal. This Court consistently rejects such excuses.” See

Carney v. Unemployment Comp. Bd. of Rev., 181 A.3d 1286, 1288-89 (Pa. Cmwlth.

2018) (deeming a “[c]laimant’s asserted stress and distraction from the birth of a

child and starting a business legally insufficient to excuse his untimely appeal” to

the referee); Maloy v. Unemployment Comp. Bd. of Rev. (Pa. Cmwtlh., No. 1009

C.D. 2015, filed Apr. 13, 2016), slip op. at 1-2 & 7-99 (affirming dismissal of a

9

Unreported memorandum opinions of this Court issued after January 15, 2008 may be

cited for their persuasive value. See Section 414(a) of this Court’s Internal Operating Procedures

210 Pa. Code § 69.414(a).

9

claimant’s appeal to the Board as untimely on the basis that the claimant’s

homelessness and the loss of her brother did not constitute non-negligent

circumstances excusing her untimely appeal, explaining that while the Court

sympathized with the claimant’s situation and her proffered reasons were

“understandable,” such reasons did not meet the heavy burden necessary for nunc

pro tunc relief); cf. Cook, 671 A.2d at 1130-32 (holding that extraordinary, non-

negligent circumstances justified nunc pro tunc consideration of a claimant’s appeal

to a referee that was tardy by four days and remanding for a hearing on the merits of

the claim, where the claimant had collapsed and was hospitalized several days prior

to an appointment with his attorney and was discharged from the hospital one day

after the appeal deadline).

We reiterate Claimant’s testimony that at some point during the

summer of 2022, the Department “told [him via email] that [he] could appeal [] at

that point, essentially.” C.R. at 104. However, as emphasized by the referee and the

Board, Claimant fails to explain his failure to file the appeal until October 26, 2022.

See id. at 108, 110 & 131-32. We agree with the Board that Claimant failed to satisfy

the heavy burden of establishing entitlement to nunc pro tunc relief by “show[ing]

the [Department] engaged in fraudulent behavior or manifestly wrongful or

negligent conduct.” Hessou, 942 A.2d at 198.

IV. Conclusion

For the foregoing reasons, we conclude that Claimant failed to satisfy

the heavy burden of demonstrating that extraordinary circumstances permit him to

appeal nunc pro tunc. See Hessou, 942 A.2d at 198; Cook, 671 A.2d at 1131.

10

Accordingly, we affirm the August 24, 2023 decision and order of the Board

affirming dismissal of Claimant’s untimely appeal.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel S. Flores, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1398 C.D. 2023

Respondent :

ORDER

AND NOW, this 9th day of December, 2024, the August 24, 2023 order of the

Unemployment Compensation Board of Review is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge