Opinion
No. 1136 C.D. 2012
02-07-2013
Ma. Christina Astorga, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
Ma. Christina Astorga (Claimant) petitions for review of the May 17, 2012 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination denying Claimant's request for backdating credit. We affirm.
Claimant was employed by Duquesne University (Employer). On April 18, 2011, Employer notified Claimant that she was being terminated, but that her salary would be paid through June 30, 2011. Claimant filed an initial claim for unemployment compensation benefits on June 19, 2011. However, the local job center determined that Claimant was not financially eligible for benefits at that time because her name was not in the system. Claimant contacted Employer, who informed her that she was not eligible for benefits because she was employed pursuant to a work visa. Claimant did not appeal the local job center's determination. (Findings of Fact Nos. 1, 10; Reproduced Record (R.R.) at 3a.)
On July 31, 2011, Claimant relocated from Pennsylvania to New York. Although Claimant filed a forwarding request with her local post office, she did not provide her new address to the local job center since her initial claim had been denied and Employer had informed her that she was ineligible for benefits. However, after conducting a wage investigation, the local job center issued a revised notice of financial determination on August 4, 2011, concluding that Claimant was in fact eligible for a weekly benefit in the amount of $573.00. The next day, the local job center issued a notice of determination finding that Claimant was not ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law), and a payment for the week ending July 2, 2011, was sent to Claimant's Pennsylvania address. (Findings of Fact Nos. 3-8.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work.
On February 8, 2012, Claimant received a voice message from the Pennsylvania Department of Treasury stating that a check that had been re-issued to her for unclaimed debit card funds had been returned due to an incorrect address. Claimant contacted the Department of Treasury, and a representative advised her to contact the local job center immediately. The next day, Claimant contacted the local job center and was informed of the revised notice of financial eligibility and the determination in her favor. Claimant updated her address and requested backdating for claim weeks ending July 9, 2011, through January 21, 2012. (Findings of Fact Nos. 8-11.) By notice of determination dated February 10, 2012, the local job center denied Claimant's request for backdating pursuant to section 401(b) of the Law, 43 P.S. §801(b), and section 65.43a of the Department of Labor and Industry (Department) regulations, 34 Pa. Code §65.43a. (Record Item No. 3.)
Section 401(b) addresses the qualifications required to secure unemployment compensation benefits. During the relevant time period, section 401(b) provided for the payment of benefits to individuals who filed their claims in accordance with the applicable Department regulations. This section was revised, effective January 1, 2012, to more fully address the requirement that an individual actively search for work.
34 Pa. Code §65.43a permits the backdating of an application for benefits and/or continued claims under certain circumstances, including situations where the Department is unable to handle all filings, the method for filing malfunctions, the local job center fails to accept a filing as a result of error or mistake, or the claimant makes all reasonable and good faith efforts to timely file but is unable to do so through no fault of her own.
Claimant appealed and a referee conducted a hearing on March 23, 2012. Claimant denied receipt of the revised notice of financial determination or the notice of determination, both of which were sent in early August 2011, even though she had provided the United States Postal Service with a forwarding address. (N.T. at 5, 7.) Claimant explained that she did not file her bi-weekly claims because she was originally denied benefits and Employer had informed her that because she was on a work visa, Employer did not deduct any unemployment insurance and she could "not benefit from something [she] did not pay into." (N.T. at 6.) Claimant stated that she immediately contacted the local job center to update her address after receiving a message from the Pennsylvania Department of Treasury regarding a returned unemployment compensation check on February 8, 2012. (N.T. at 10.) However, Claimant acknowledged that she never attempted to contact the local job center to verify the information provided by Employer. Id.
By decision dated March 28, 2012, the referee affirmed the determination of the local job center denying Claimant's request for backdating. The referee noted that the language of 34 Pa. Code §65.43a is very specific and that Claimant's reason for not filing her bi-weekly claims is not one of the allowable conditions for backdating. Claimant appealed, but the Board affirmed, adopting the referee's findings and conclusions as its own.
The Board noted that its decision would "not affect the total amount of benefits that the claimant may be entitled to in other weeks." (Board's decision at 1.) In this regard, it appears that Claimant reinstituted filing weekly claims for benefits in February 2012.
On appeal to this Court, Claimant argues that the Board erred in denying her request for backdating. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010). --------
As noted above, the relevant portion of section 401(b) provides for the payment of unemployment compensation benefits to individuals who filed their claims in accordance with Department regulations. 34 Pa. Code §65.43 provides that claimants must file bi-weekly claims and addresses situations in which the time for filing may be extended. In relevant part, the regulation states as follows:
(d) If a claimant fails to file a claim for compensation within the time allowed in subsection (a) or (b) or §65.43 (relating to claims for compensation -- when to file), for a reason listed in subsection (e), the time for filing the claim is extended for the number of weeks indicated in subsection (e) .
(e) For purposes of subsections (c) and (d) the number of weeks is determined as follows:
| Reason | Numberof weeks |
| The Department suspendsaccepting filings or is unableto handle all filings, due toan excessive volume oftelephone calls or otherreasons. | 6 |
| The claimant attempts to fileby telephone, Internet or faxtransmission in accordancewith § 65.41 (relating tofiling methods), the methodused to attempt to file isunavailable or malfunctions,and the attempt to fileoccurs on the last day thatthe claimant could timelyfile by the method used. | 2 |
| A UC Office fails to accepta filing as a result of error ormistake by the Department. | 52 |
| Sickness or death of amember of the claimant'simmediate family or an actof God. | 2 |
| Other, if the claimant makesall reasonable and good faithefforts to file timely but isunable to do so through nofault of the claimant. | 2 |
...
(h) If two or more of the reasons enumerated in subsections (e) and (f) have prevented a claimant from filing a claim for compensation within the time allowed in subsection (a) or
(b) or § 65.43, the longest extension applies. If adherence to the longest extension would be inequitable to the claimant, the sum of the applicable extensions applies.34 Pa. Code §65.43a (d)-(e), (h)-(i).
(i) Notwithstanding any provision of this section, the Department may not extend the time for filing a claim for compensation more than 52 weeks and may not deem an application for benefits to be filed in a week included in a previous benefit year.
Claimant contends that the Board erred in affirming the referee's decision because the referee ignored pertinent evidence, including Claimant's reliance on the misrepresentations of Employer and the local job center and the failure of the United States Postal Service to forward her mail, and impermissibly applied a "rigid and hyper-technical interpretation of the statute." (Claimant's brief at 6.) While we are sympathetic to Claimant's situation, we cannot agree that the referee ignored pertinent evidence or misapplied the regulation.
To the contrary, the referee specifically noted Claimant's assertion that Employer informed Claimant that she was ineligible for benefits because she was on a work visa, (Finding of Fact No. 10), and that the local job center initially found Claimant financially ineligible for benefits, (Finding of Fact No. 1). Additionally, in her opinion, the referee addressed Claimant's allegation that the United States Postal Service had failed to forward her mail. Further, the referee properly concluded that Claimant's reasons for not timely filing her bi-weekly claims were not part of the permissible reasons for backdating as set forth in 34 Pa. Code §65.43a.
Moreover, Claimant's reliance on Russell v. Unemployment Compensation Board of Review, 812 A.2d 780 (Pa. Cmwlth. 2002), Menalis v. Unemployment Compensation Board of Review, 712 A.2d 804 (Pa. Cmwlth. 1998), and Snipas v. Unemployment Compensation Board of Review, 401 A.2d 888 (Pa. Cmwlth. 1979), in support of her argument is misplaced.
In Russell, the claimant was originally denied benefits and the claimant appealed. While on appeal, the Board requested a remand and issued a decision on July 9, 2001, granting the claimant benefits. On July 25, 2001, the local job center sent the claimant a notice of exhaustion of benefits that advised him to file a new application after June 2, 2001, approximately eight weeks before the notice was sent. In August 2001, the claimant filed a new application and requested that it be backdated to apply to the weeks ending June 9, 2001, through July 28, 2001. The local job center, a referee, and the Board all denied the request for backdating.
However, this Court reversed the Board's decision. Because the late notice to re-file was misleading, i.e., advised the claimant to re-file eight weeks before the date of the notice, we concluded that the Department failed to provide the claimant with necessary information concerning his rights and responsibilities and, thus, the Board erred in denying his request to backdate his new application.
The present case is distinguishable. In this case, the local job center initially and properly found Claimant to be financially ineligible for benefits because her name was not in the system. The local job center advised Claimant to contact Employer regarding the situation. After contacting Employer, Claimant chose to rely on Employer's representations and made no further inquiries with the local job center. This Court has previously held that a claimant's reliance on misinformation provided by an employer is not a sufficient reason to permit backdating. Mitcheltree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993) (holding that misrepresentations by a claimant's employer is not one of the permissible reasons for backdating under the regulations and that it is the responsibility of the claimant to comply with the Law's reporting requirements); McCullaugh v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1552 C.D. 2010, filed May 19, 2011) (unpublished) (holding that even though the claimant may have been misled by information provided by the employer and the employer's accountant, the Board properly denied the claimant's backdating request because she did not fall under any of the permissible circumstances for backdating as set forth in the regulations). Claimant also chose not to provide the local job center with an updated address when she moved. Thus, unlike in Russell, Claimant's failure to timely file her bi-weekly claims was not the result of misleading information provided by the local job center.
In Menalis, the claimant filed an application for benefits and was told by a local job center representative that he would be ineligible due to his receipt of a pension. However, the representative also advised the claimant to continue to file claims due to a pending appeal. The claimant filed claims and eventually began receiving benefits. When the claimant later stopped receiving claim forms and benefits, he did not call the local job center to inquire why his benefits had stopped. Rather, the claimant assumed that he was no longer eligible because he had begun to receive his regular pension. Approximately one year later, the claimant filed another application for benefits and requested backdating to the point at which his benefits had ceased. The local job center, a referee, and the Board granted the claimant a backdate credit for one week, but denied any such credit for the remaining weeks.
This Court affirmed the Board's decision, concluding that the claimant stopped filing claims for benefits because of his own assumption that he was no longer eligible due to his pension, that he never inquired as to why his benefits had stopped, and that he was not misled by unemployment compensation officials. We also noted that the claimant failed to meet any of the required reasons for backdating. Claimant attempts to contrast the facts of Menalis to show why backdating should be permitted in this case, citing the fact that the local job center never advised her to continue to apply for benefits but instead informed her that she was ineligible because her name was not in the system. However, Claimant ignores the fact that the local job center's original notice of financial ineligibility was proper and that it was incumbent upon Claimant to clarify her situation. Again, Claimant elected to rely on Employer's representations without making further inquiries.
Finally, Claimant relies on Snipas for the proposition that backdating is proper if a claimant is unaware of her eligibility for benefits. In Snipas, the claimant was a civil service employee who was discharged from his employment on August 22, 1974. The claimant appealed his discharge to the State Civil Service Commission, which ordered him reinstated in February 1975 but without back pay. The claimant's appeals of the denial of his back pay were denied by both this Court and our Supreme Court. In October 1976, the claimant filed an application for benefits for the period during which he was denied back pay and requested the backdating of his claim to August 25, 1974. The claimant's application was denied by the Bureau of Employment Security (Bureau), a referee, and the Board.
This Court affirmed the Board's decision, noting that the record indicated that the claimant was aware of the possibility of his eligibility for benefits at the time of his discharge but opted to devote his full attention to his civil service appeal. We also noted that the record reflected that the claimant did not file a claim because he believed he would not be entitled to benefits due to the fact that he was discharged and not because of any misleading information from the Bureau. In the present case, had Claimant made further inquiries following Employer's representations that she was ineligible for benefits, she may have been able to confirm her eligibility. Claimant instead chose to rely on Employer's representations.
Because we are constrained by the provisions of 34 Pa. Code §65.43a, which limit the circumstances under which backdating is permitted, and the record supports the Board's determination that Claimant failed to fall under any of these circumstances, we conclude that the Board did not err in denying her request.
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of February, 2013, the order of the Unemployment Compensation Board of Review, dated May 17, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge