                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia A. Kreiser,                          :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :    No. 1226 C.D. 2016
                    Respondent               :    Submitted: January 13, 2017


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: April 17, 2017

              Cynthia A. Kreiser (Claimant) petitions this Court, pro se, for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) June 30, 2016
order affirming the Referee’s decision denying her UC benefits under Section 401(c)
of the UC Law (Law).1 The sole issue before the Court is whether the UCBR erred in
concluding that Claimant was not entitled to backdate her February 10, 2016 UC
claim to November 29, 2015.2 After review, we affirm.
              Claimant is employed as a full-time police officer for the City of
Harrisburg (Employer). Claimant took a medical leave of absence on November 15,
2015 for knee surgery which was necessitated by a non-work related accident.
Claimant was released to return to light-duty/desk-duty (sedentary) work on

       1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(c) (relating to a valid application for UC benefits).
       2
         Claimant originally wanted to backdate her UC claim to November 22, 2015, but has since
changed it to November 29, 2015, as Claimant was released to light-duty/desk-duty work on
November 30, 2015.
November 30, 2015. However, pursuant to the Collective Bargaining Agreement
(CBA) between Employer and Union, of which Claimant was a member, only
officers injured while on duty are permitted to return to sedentary work. In January
2016, a co-worker informed Claimant that she was eligible for UC benefits for the
time she was medically released to return to work but not permitted to do so under the
CBA.
              Claimant filed an application for UC benefits on February 10, 2016. On
March 14, 2016, Claimant requested to backdate her application for the UC benefits
as of the time that she was released to return to sedentary work. On March 17, 2016,
the Altoona UC Service Center determined that Claimant was ineligible for UC
benefits under Section 401(c) of the Law. Claimant appealed, and a Referee hearing
was held.      On April 27, 2016, the Referee affirmed the UC Service Center’s
determination. Claimant appealed to the UCBR. On June 30, 2016, the UCBR
adopted and incorporated the Referee’s factual findings and legal conclusions, and
affirmed the Referee’s decision. Claimant appealed to this Court.3
              Claimant argues that she should be permitted to backdate her UC
application because Employer did not inform her that she was entitled to UC benefits.
We disagree.
              “While this [C]ourt does not condone an employer misleading a claimant
concerning h[er] eligibility for [UC] benefits, it is the responsibility of the claimant
to contact the [Department of Labor & Industry (Department)] personally to file
a claim for benefits and to comply with reporting requirements.” Mitcheltree v.



       3
         “Our scope of 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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 2
Unemployment Comp. Bd. of Review, 635 A.2d 701, 704 (Pa. Cmwlth. 1993)
(emphasis added).
             Section 401 of the Law states, in relevant part:
             Compensation shall be payable to any employe who is or
             becomes unemployed, and who--
             ....
             (c) Has made a valid application for benefits with respect to
             the benefit year for which compensation is claimed and has
             made a claim for compensation in the proper manner and on
             the form prescribed by the [D]epartment[.]

43 P.S. § 801. Further, Section 65.42 of the Department’s Regulations provides: “An
application for benefits is effective on the first day of the calendar week in which the
application is filed or deemed filed in accordance with [Section 65.43a of the
Department’s Regulations, 34 Pa. Code] § 65.43a (relating to extended filing),
whichever is earlier.” 34 Pa. Code § 65.42. The only exceptions for extension are
enumerated in Section 65.43a of the Department’s Regulations, which specifies in
pertinent part:

             (a) For a week in which a claimant was employed less than
             his full time work, the claimant shall file a claim for
             compensation not later than the last day of the second week
             after the employer paid wages for that week. If the earliest
             week for which a claim for compensation is filed in
             accordance with this subsection precedes the week in which
             the claimant’s application for benefits is filed or deemed
             filed, as determined without regard to this subsection, the
             Department will deem the application to be filed during the
             earliest week for which a claim is filed.
             ....
             (c) The Department will deem an application for benefits to
             be filed prior to the week in which it actually is filed if the
             claimant did not file the application earlier for a reason
             listed in subsection (e). The Department will deem the
             application to be filed during the week that precedes the
                                           3
week of actual filing by the number of weeks indicated in
subsection (e).
(d) If a claimant fails to file a claim for compensation
within the time allowed in subsection (a) or (b) or [Section
65.43 of the Department’s Regulations, 34 Pa. Code] §
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:

                                                     Number
Reason
                                                     of weeks

The Department suspends accepting
filings or is unable to handle all
                                                     6
filings, due to an excessive volume of
telephone calls or other reasons.

The claimant attempts to file by
telephone,      Internet     or     fax
transmission in accordance with §
65.41 (relating to filing methods), the
method used to attempt to file is                    2
unavailable or malfunctions, and the
attempt to file occurs on the last day
that the claimant could timely file by
the method used.

A UC Office fails to accept a filing as
a result of error or mistake by the                  52
Department.

Sickness or death of a member of the
claimant’s immediate family or an act                2
of God.

Other, if the claimant makes all
reasonable and good faith efforts to                 2
file timely but is unable to do so

                              4
            through no fault of the claimant.
            ....

            (g) The Department will deem an application for benefits to
            be filed no more than 2 weeks prior to the week in which it
            actually is filed if the claimant did not file the application
            earlier because an employer erroneously advised the
            claimant that the claimant would be recalled to work within
            1 week.
            (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 [Section 65.43 of the Department’s Regulations], the
            longest extension applies. If adherence to the longest
            extension would be inequitable to the claimant, the sum of
            the applicable extensions applies.
            (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.
34 Pa. Code § 65.43a.
            Here, Claimant asserts that because Employer did not advise her that she
could receive UC benefits for the weeks she was released to return to sedentary work,
she should be permitted to backdate her UC application. However, because it was
Claimant’s responsibility to ascertain whether she was entitled to UC benefits,
Mitcheltree, and her reason for not timely applying does not fall within an exception
listed in Section 65.43(a)(e) of the Department’s Regulations, the UCBR properly
denied Claimant’s request to backdate her UC application.
            For all of the above reasons, the UCBR’s order is affirmed.

                                      ___________________________
                                      ANNE E. COVEY, Judge

Judge Cosgrove concurs in the result only.
                                          5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cynthia A. Kreiser,                    :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 1226 C.D. 2016
                    Respondent         :


                                     ORDER


            AND NOW, this 17th day of April, 2017, the Unemployment
Compensation Board of Review’s June 30, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
