O. Smoliniec v. UCBR
CourtCommonwealth Court of Pennsylvania
Date FiledNovember 9, 2026
Docket861 C.D. 2025
JudgeMcCullough
StatusUnpublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Oksana Smoliniec, :
Petitioner :
:
v. : No. 861 C.D. 2025
:
Unemployment Compensation : Submitted: September 14, 2026
Board of Review, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 9, 2026
Oksana Smoliniec (Claimant), acting pro se, petitions this Court for
review of the May 7, 2025 order of the Unemployment Compensation (UC) Board of
Review (Board), which affirmed the UC Referee’s (Referee) decision dismissing as
untimely Claimant’s appeal of the denial of her request for UC benefits pursuant to
Section 501(e) of the UC Law.1 After review, we affirm.
I. Factual and Procedural History
Claimant was employed by HAVAS Health Inc. (Employer) as a full-
time Medical Editor from June 21, 2021, until August 30, 2024, when she was
terminated by Employer. (Certified Record (C.R.) at 007, 012, 085.) She applied for
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e) (prescribing a 21-day appeal period).
UC benefits with the Department of Labor and Industry (Department) on October 7,
2024. Id. at 003. On October 23, 2024, the Department issued a determination finding
Claimant ineligible for benefits because she was not able and/or available for work
due to illness, injury, or disability. Id. at 019. The Department’s Notice of
Determination provided Claimant with appeal instructions, advising her that if she did
not agree with the determination, she had 21 days from the date on the determination
notice to file an appeal. Therefore, in order to be timely, her appeal must have been
received by or postmarked by November 13, 2024. Id. at 019. Claimant, however,
did not appeal her ineligibility determination until February 11, 2025, more than two
and one-half months after the appeal deadline. Id. at 034.
Upon receiving Claimant’s appeal, the Department scheduled a
telephonic hearing before a Referee for March 31, 2025. The Department also issued
a Notice of Hearing informing Claimant that the purpose of the hearing was to decide
the following issues: (1) whether Claimant filed a timely and valid appeal from the
Department’s initial determination pursuant to Section 501(e) of the UC Law;
(2) whether Claimant’s unemployment was due to voluntarily leaving work without
cause of a necessitous and compelling nature pursuant to Section 402(b) of the UC
Law, 43 P.S. § 802(b); and (3) whether Claimant was able and available for suitable
work, as required by Section 401(d)(1), (2) of the UC Law, 43 P.S. § 801(d)(1). Id.
at 064-65. Claimant appeared and testified at the hearing but Employer did not
participate.
At the hearing, the Referee asked Claimant about the reason for her
untimely appeal. Claimant responded that she sought legal counsel after she was
denied UC benefits and that once she was no longer employed, she applied
consistently for work. The Referee asked if she had read the determination which
instructed her to file her UC appeal by a date certain so that it would be timely.
Claimant replied that she had read it; however, she believed that she would be denied
2
benefits if she appealed, and she had no other resources or support. Therefore, she
said she “just continued applying for work.” (Notes of Transcript (N.T.) at 4.) She
further testified that when she was unable to secure a position, she decided that she
“did want to file the appeal and be heard on my part of the case.” Id. When asked if
she had anything further to say on the timeliness issue, she stated:
Just that this is my first time ever being in a situation like this.
My first time having to apply for unemployment and not
thoroughly being aware of the process and how it works. And
also, you know, receiving the disqualifying determination and
simply assuming that there was no – there was no support
available to me.
Id.
The Referee then asked Claimant about her separation from
employment. Claimant testified that she had taken a medical leave of absence and on
the date she was scheduled to return to work, she informed her employer that she “was
not able to return and perform at the work level that was required of her position.”
Id. at 7. At that point, Claimant testified, she was terminated. Id. at 6. The Referee
asked whether Claimant was “able and available” to work after her termination. Id.
at 7. Claimant responded that she was able and available to work, but:
not at the position that I was at because of the fact that it was
very high science work I was performing at that position. It
included fact[-]checking, proofreading very high level
medical documents. So, that – I was not able to work at that
position, however, I was able and available to work, and I was
actively seeking work.
Id.
On April 1, 2025, the Referee issued a decision dismissing Claimant’s
appeal for lack of jurisdiction. In the decision, the Referee made the following
Findings of Fact:
3
1. On 10/23/2024, a determination was issued
disqualifying [Claimant] for benefits.
2. The Notice of Determination informed [Claimant] that
there were twenty-one [ ] (21) days from the date of that
determination in which to file an appeal if [Claimant]
disagreed with the determination. The last day on which
a valid appeal could be filed from that determination was
11/13/2024.
3. [Claimant] did not file an appeal on or before
11/13/2024, but waited until 2/11/2025.
4. [Claimant] was not misinformed nor in any way misled
regarding the right of appeal or the need to appeal.
Id. The Referee’s decision then stated:
Section 501(e) of the [UC] Law provides that a Notice of
Determination shall become final and compensation shall be
paid or denied in accordance therewith unless an appeal is
filed within the twenty-one-day period after proper
notification of said determination has been given to all
affected parties. The provisions of this Section of the [UC]
Law are mandatory and the Referee has no jurisdiction to
allow an appeal after the expiration of the statutory appeal
period. [Claimant’s] appeal is, therefore, dismissed.
Id. at 091.
Claimant appealed the Referee’s decision to the Board. On May 7, 2025,
the Board issued an order affirming the Referee’s decision and dismissing Claimant’s
appeal pursuant to Section 501(e) of the UC Law. Id. at 102-04, 114-15. The Board
adopted and incorporated the Referee’s findings and conclusions. The Board also
added the following finding of fact: “[Claimant] received the disqualifying
determination, read it, knew she was denied, and delayed in filing the appeal because
4
she assumed there were no resources or support available.” Id. at 114. The Board
then stated:
Based on a review of the record, [Claimant] failed to meet
her burden of proof that the appeal was, or should be
accepted as if, timely filed under Section 501(e) of the [UC]
Law. The Board and its Referees have no jurisdiction to
decide the merits of an untimely appeal.
On appeal to the Board, [Claimant] makes assertions and
attaches documents that are not in the record and cannot be
considered on appeal.
Id. The Board affirmed the decision of the Referee and, accordingly, dismissed
[Claimant’s] appeal of the Department’s initial determination as untimely. Id. at 115.
Claimant now petitions for review of the Board’s order.2
II. Issues
On appeal, Claimant argues that the Board erred when it refused to
consider the circumstances surrounding her late appeal despite established case law
which “permits late appeals where illness or other serious conditions prevent timely
filing.” (Claimant’s Br., at 2 (unpaginated).) Claimant alleges that she had good
cause for the late filing of her appeal because she was unable to file a timely appeal
due to serious mental health challenges that impaired her ability to understand or
comply with the 21-day appeal deadline. Id. at 1. She claims that during the time
frame in which she could file her appeal, she was seeking medical treatment for her
mental health and “could not execute her day-to-day responsibilities which included
2
“This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence.” Rivera v. Unemployment Compensation Board of Review, 310
A.3d 348, 352 n.4 (Pa. Cmwlth. 2024). In UC cases, the Board is the ultimate factfinder and it
resolves issues of credibility. Id. In addition, its findings are conclusive on appeal so long as the
record, taken as a whole, contains substantial evidence to support those findings. Hessou v.
Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth. 2008).
5
the timely appeal of this matter.” Id. at 2. However, she maintains that she acted to
file an appeal as soon as she was mentally capable of doing so. As relief, Claimant
asks this Court to reverse or vacate the Board’s finding on whether extraordinary
circumstances existed for her late filing and remand the case for further proceedings
to consider her claim that she had good cause for her late appeal.3 Id.
The Board argues in response that Claimant’s failure to file a timely
appeal divests this Court of jurisdiction to consider the merits of her appeal unless
Claimant can prove she had good cause for the late appeal or that an administrative
breakdown occurred. Claimant testified at her hearing that the reason she filed a late
appeal was that she had no resources or support, which the Board asserts does not
provide her with good cause for her late appeal. (Respondent’s Br., at 5.) The Board
states that while Claimant contends that she had good cause for her late appeal, she
has not met her heavy burden of demonstrating that she had good cause because when
questioned by the Referee as to why her appeal was late, “Claimant explained that
she sought legal counsel regarding the denial of benefits, but was given the impression
that she would be denied benefits, and she felt that she had no other resources or
support.” Id. at 7. The Board avers that this explanation does not provide Claimant
with good cause for her untimely appeal. Id.
III. Discussion
Under Section 501(e) of the UC Law, a Claimant must appeal an adverse
eligibility determination within 21 days of receiving the Department’s Notice of its
eligibility determination. 43 P.S. § 821(e). The appeal provisions of the law are
mandatory, so that a failure to file an appeal within the designated appeal period
3
Without using the term, Appellant appears to be requesting nunc pro tunc relief. Nunc pro
tunc is Latin for “now for then.” Nunc Pro Tunc, Black’s Law Dictionary (12th ed. 2024). It refers
to the inherent power of a court to retroactively give legal effect to an issue that presently lacks such
effect. Id.; see, e.g., Hall v. Unemployment Compensation Board of Review, 42 A.2d 1204, 1207
n.2 (Pa. Cmwlth. 2012).
6
without an adequate excuse requires dismissal of the appeal. United States Postal
Service v. Unemployment Compensation Board of Review, 620 A.2d 572, 573 (Pa.
Cmwlth. 1993). “Failure to appeal before the mandatory deadline creates a
jurisdictional defect this Court cannot overlook even ‘as a matter of grace or
indulgence.’” Logan v. Unemployment Compensation Board of Review, 334 A.3d 91,
94 (Pa. Cmwlth. 2025) (quoting Carney v. Unemployment Compensation Board of
Review, 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018)).
Nevertheless, in limited circumstances, the Board may consider an
untimely appeal. Barsky v. Unemployment Compensation Board of Review, 261 A.3d
1112, 1119-20 (Pa. Cmwlth. 2021); Hessou, 942 A.2d at 198. “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.” Id. Since our Supreme
Court’s recent decision in Carr v. First Commonwealth Bank, ___ A.3d ___ (Pa., Nos.
22 & 23 WAP 2025 (filed Sept. 10, 2026), 2026 WL 2663013, the only way an
appellant may establish the right to have an untimely appeal in an unemployment
compensation case is where he can show the administrative authority engaged in
fraudulent behavior or manifestly wrongful or negligent conduct. See Carr
(disapproving the non-negligent circumstance except to the timeliness requirement.).
However, it is well settled that a claimant’s unfamiliarity with appeal procedures does
not excuse an untimely filing. See Hessou, 942 A.2d 194; Finney v. Unemployment
Compensation Board of Review, 472 A.2d 752 (Pa. Cmwlth. 1984).
We need not consider Claimant’s claim that she had good cause for her
late filing because this allegation was not raised at the hearing and is not a part of the
record. Her argument therefore is waived and cannot be considered by this Court.
Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure provides, in pertinent
part:
7
(a) Review of quasijudicial orders shall be conducted by
the court on the record made before the government unit.
Only questions raised before the government unit shall be
heard or considered, except:
....
(3) Questions that the court is satisfied the petitioner could
not by the exercise of due diligence have raised before
the government unit.
Pa.R.A.P. 1551(a)(3) (emphasis added). The waiver rule is also mandated by Section
703(a) of the Administrative Agency Law, which states that “[a] party who proceeded
before a Commonwealth Agency under the terms of a particular statute . . . may not
raise upon appeal any other question not raised before the agency . . . unless allowed
by the court upon due cause shown . . . .” 2 Pa.C.S. § 703(a); Ordo v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 1574 C.D. 2025, filed August 24,
2026) 2026 WL 2469117, at *5; Placid v. Unemployment Compensation Board of
Review, 427 A.2d 748, 750 (Pa. Cmwlth. 1981).4
We note that when Claimant was asked by the Referee why she filed her
appeal late, she responded: “my situation was that I did seek legal counsel for the fact
that I was denied the Unemployment. I had explained my situation and the fact that
throughout the timing I had been applying consistently for work. . . .” (C.R. at 084.)
When asked whether she had read the determination’s instructions to file her appeal
before the deadline date, she testified:
4
We further note that Claimant’s Brief did not comply with Pa.R.A.P. 2117(c), which
requires that: (c) “[w]here under the applicable law an issue is not reviewable on appeal unless raised
or preserved below, the statement of the case shall also specify” certain relevant information
regarding those issues as well as “the places in the record where the matter appears . . . as will show
that the question was timely and properly raised below so as to preserve the issue on appeal. . . .”
Pa.R.A.P. 2117(c).
8
I did read that, however, I – my perception was that I would
be denied unemployment, and I had no other resources or
support. And so, at the time, unfortunately, I just continued
applying for work, however, throughout the period between
October 2024 and March 2025, I was unable to secure a
position. And therefore, I did want to file the Appeal and be
heard on part of the case and what’s been happening.
Id. At no point during the hearing did Claimant mention that medical issues
prevented her from timely filing her appeal, even though the Referee provided her
with ample opportunities to make her arguments. Indeed, rather than being unable to
execute her day-to-day responsibilities, Claimant testified at the hearing that she “had
been applying consistently for work.” The only evidence of record is that Claimant
filed an untimely appeal because she had the perception that her appeal would be
denied. (C.R. at 084.)
When given the opportunity by the Referee to defend her untimeliness
further, she declined to elaborate. See C.R. at 084. Claimant did not mention being
incapacitated due to mental health challenges. Because Claimant had the opportunity
to raise her arguments with respect to timeliness during the hearing and did not do
so, these arguments are waived and this Court may not consider them. Pa.R.A.P.
1551(a)(3). Accordingly, we are constrained to conclude that the Board did not err
in affirming and adopting the Referee’s decision, and we hold that Claimant’s appeal
was properly dismissed as untimely under Section 501(e) of the UC Law. 43 P.S.
§ 821(e).5
5
Even if Claimant’s arguments before this Court had not been waived, she would not have
prevailed in this appeal because she did not establish that the administrative authority engaged in
fraudulent behavior or manifestly wrongful or negligent conduct. As noted previously, in Carr v.
First Commonwealth Bank, ___ A.3d ___(Pa., Nos. 22 & 23 WAP 2025 (filed September 10, 2026),
2026 WL2663013, our Supreme Court recently held that a party may no longer excuse a late filing
by proving that the occurrence of “non-negligent conduct beyond his control” was the cause of the
(Footnote continued on next page…)
9
IV. Conclusion
Based on the foregoing discussion, the May 7, 2025 order of the Board
is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
missed deadline, unless the statute setting forth the deadline contains express statutory language that
can reasonably be read to support a “non-negligent-happenstance exception to the time limitation
involved.” Carr, at *7. The UC Law does not contain such an express statutory provision.
The Pennsylvania Supreme Court has characterized administrative breakdown as
occurring when “an administrative body acts negligently, improperly[,] or in a misleading way.”
Logan, 334 A.3d at 95 (quoting Harris v. Unemployment Compensation Board of Review, 247 A.3d
1223, 1229-30 (Pa. Cmwlth. 2021)). In the instant case, Claimant does not argue, and there is no
record evidence to suggest, that her delay in filing her appeal was caused by fraudulent, negligent,
or wrongful administrative conduct. Therefore, because Section 501(e) of the UC Law does not
contain an express statutory provision allowing late filings due to reasons involving the non-
negligence of a Claimant and because Claimant here has not asserted that fraudulent behavior or
manifestly wrongful or negligent conduct on the part of the administrative agency occurred in this
case, if we had not found Claimant’s arguments to be waived, we would find Claimant’s sole
argument on appeal to be without merit.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Oksana Smoliniec, :
Petitioner :
:
v. : No. 861 C.D. 2025
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 9th day of November, 2026, the May 7, 2025 order of
the Unemployment Compensation Board of Review is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge