          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula Y. Caruso,                      :
                   Petitioner         :
                                      :
            v.                        :   No. 1917 C.D. 2015
                                      :   Submitted: February 5, 2016
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                  FILED: May 23, 2016

            Paula Caruso (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
denying her request to backdate her application for unemployment compensation
benefits to cover a 12-week period. In doing so, the Board affirmed the Referee’s
decision that Claimant failed to prove that she was eligible to backdate her
application under the applicable regulation of the Department of Labor and
Industry. For the reasons that follow, we affirm.
            In January of 2014, Claimant applied for unemployment benefits
following her separation from employment with Zlotoff, Gilbert & Gold. The
Board ultimately held that Claimant was eligible for benefits effective January 12,
2014. Claimant’s benefit year for that claim ended January 10, 2015.
            Between March and December of 2014, Claimant was employed by
Exel, Inc. Following her separation from employment with Exel, Claimant filed a
bi-weekly claim for benefits for weeks ending January 3 and 10, 2015;
presumably, although the record is not clear, she filed this claim under her still
open claim against her prior employer Zlotoff, Gilbert and Gold. The UC Service
Center put Claimant’s claim on hold. Nevertheless, Claimant attempted to file
another bi-weekly claim via telephone for benefits for weeks ending January 17,
2015, and January 24, 2015, after the benefit year on her Zlotoff claim had ended.
When Claimant logged into the system, a representative informed her that she
needed to call the UC Service Center. At approximately the same time, the UC
Service Center issued a notice of determination finding Claimant to be ineligible
for benefits based on her separation from employment with Exel.
             Claimant appealed the UC Service Center’s determination. Shortly
thereafter, the Referee held that Claimant was ineligible for benefits based on her
separation from Exel. On May 18, 2015, the Board reversed the Referee’s decision
and held that Claimant was eligible for benefits. On May 26, 2015, Claimant
contacted the UC Service Center by phone and requested that it backdate her
application for benefits as effective January 11, 2015, and backdate her claims for
weeks ending January 17, 2015, through April 4, 2015. The UC Service Center
denied Claimant’s request. Claimant appealed, and the Referee conducted an
evidentiary hearing on July 15, 2015, on Claimant’s backdating request.1 Neither
of Claimant’s employers appeared at the hearing.
             Claimant testified as follows regarding why she did not file a new
claim for benefits against Exel until May of 2015:

             I have been calling the UC Center, Lancaster. Could never get
             through to file on the PAT System. When I finally -- and plus I


1
 The Referee attempted to conduct the hearing on June 26, 2015, but decided to continue the
hearing for the purpose of obtaining additional information on Claimant’s claim history.

                                            2
             didn’t have access to a phone. I was basically homeless, unable
             to contact the UC at that point but when I did call it would not
             allow me to access my information over the phone. And then I
             finally got through to someone. I don’t recall the date. This
             has been ongoing. There’s been a lot of different scenarios as
             far as based off my paperwork it’s hard to follow for me but I
             do recall -- I don’t recall them telling me when I had to open the
             Claim and that sort of thing. So I didn’t know why PAT -- I
             couldn’t get through the PAT System, and I kept calling and
             then I was unable to call, to be very honest because I had no
             phone. I was homeless, basically living out of my car. Then
             when I finally got a little bit of this thing going on and I got the
             approval on the last -- the Claim, I thought that was for the
             whole time you know separation through Exel not just four
             weeks. So then they told me you should open a Claim I’m like
             well I don’t remember being told that.

Notes of Testimony, 7/15/2015, at 5. Claimant could not remember the exact dates
she tried calling or how many times she attempted to call the UC Service Center.
Claimant admitted that she did not consider going to the UC Service Center in
person. Claimant also testified that she was incarcerated for a short time during the
relevant time period.
             On July 20, 2015, the Referee denied Claimant’s request to backdate
her application for benefits and claims thereunder. The Referee reasoned:

             In the present case, the Claimant testified that she was unaware
             that she needed to open a new claim in January 2015, after the
             January 2014 claim had ended. The Claimant further testified
             that she was unable to get through to the UC Service Center and
             then did not have a phone because she could not afford it, so
             she had no way to contact the UC Service Center. However,
             the Claimant was able to file an appeal of the Referee’s
             Decision to the Board of Review in March 2015. The Claimant
             did not provide testimony to show that she made efforts to use a
             phone to contact the UC Service Center, including going to the
             Career Link Office.

                                          3
              The Claimant’s reason for not timely filing her Application for
              Benefits and her biweekly claims for benefits is not a reason
              listed in Regulation §65.43(a) which would permit the Referee
              to grant the Claimant’s request to backdate. Therefore, the
              request for backdating is denied.

Referee’s Decision at 3. On August 24, 2015, the Board adopted the Referee’s
findings and conclusions and affirmed the Referee’s order. Claimant now petitions
for this Court’s review.
              On appeal,2 Claimant argues that the Board erred in denying her
request to backdate her application for benefits for her separation from Exel to
January 11, 2015, and her claims thereunder for the weeks ending January 17
through April 4, 2015.3 The Board counters that backdating is allowed only in
limited situations. Claimant’s reasons for not filing within the correct period do
not fit within any of the permitted reasons for backdating. Therefore, it did not err
in affirming the Referee’s decision. We agree.
              The Department has promulgated regulations governing the
procedures for applying for unemployment benefits and, specifically, when
backdating of an application is permissible. These regulations are found in 34 Pa.
Code §65.43a. The general rule is that “[f]or 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


2
  On review, this Court must determine whether the Board’s decision is supported by substantial
evidence, errors of law were committed, or constitutional rights were violated. Moore v.
Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987).
3
  In her brief to this Court, Claimant argues that the Board erred in holding that she was
ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b), because she lacked
necessitous and compelling cause to leave work. Because the Board actually decided the merits
of Claimant’s appeal in her favor, we need not address this issue.

                                              4
wages for that week.”       34 Pa. Code. §65.43a(a).        However, the regulation
continues:

             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 week of actual filing by
             the number of weeks indicated in subsection (e).

34 Pa. Code §65.43a(c). Subsection (e) provides as follows:

                                                  Number of Weeks that can be
        Reason for Late Filing
                                                          Backdated
The Department suspends accepting
filings or is unable to handle all filings,
                                                                 6
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
                                                                 2
attempt to file is 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 of                         2
God.
Other, if the claimant makes all
reasonable and good faith efforts to file
                                                                 2
timely but is unable to do so through no
fault of the claimant.
34 Pa. Code §65.43a(e).


                                              5
               Claimant asserts that her claim should be backdated because she had
difficulty navigating the Department’s phone system and because she did not
always have access to a phone. Although Claimant does not invoke a specific
exception in subsection (e), the only possible exception is where “the claimant
makes all reasonable and good faith efforts to file timely but is unable to do so
through no fault” of her own. 34 Pa. Code §65.43a(e).4
               We agree with the Board that Claimant did not qualify for this
exception. She offered no testimony regarding when she called or how many times
she called the UC Service Center. Furthermore, Claimant did not attempt to go to
the UC Service Center in person or explain why she could not do so. Claimant
may have experienced difficulty in navigating the unemployment system, but we
cannot conclude on this record that Claimant made all reasonable and good faith
efforts to timely file her application and claims.5



4
  Even though we conclude that the Board did not err in refusing to backdate Claimant’s
application, we note that Claimant’s application could, at most, be backdated two weeks and not
all the way to January 17, 2015.
5
  Though not binding, our decision in Beck v. Unemployment Compensation Board of Review,
(Pa. Cmwlth., No. 459 C.D. 2013, filed September 11, 2013), is instructive. In Beck, the
claimant suffered an injury and was discharged by her employer because she could no longer
perform her job. The claimant did not immediately file for unemployment benefits because she
did not possess a termination letter. Once she received the termination letter, the claimant
applied for benefits and sought to backdate her application to include the period where she was
unemployed without a termination letter. At a hearing before a referee, the claimant testified that
the reason she waited was because she was “unfamiliar with the unemployment compensation
system.” Id., slip op. at 1. The referee and the Board denied the claimant’s request to backdate
her application. On appeal, this Court affirmed. We explained that
        [the c]laimant did not make any effort to file a timely claim[,] but attributes the
        lack of a timely filing to her unfamiliarity with the unemployment compensation
        system. Though we are not unsympathetic to the recently unemployed who must,
        often times without the assistance of counsel, navigate what can seem at times to
(Footnote continued on the next page . . .)
                                       6
              For these reasons, the order of the Board is affirmed.

                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




(continued . . .)
         be a cumbersome benefits system, we cannot allow a lack of familiarity to be an
         excuse to permit backdating of benefits.
Id., slip. op. at 3 (emphasis added). Claimant, like the claimant in Beck, did not timely file an
application for benefits due to difficulty navigating the unemployment compensation system.
Thus, as in Beck, Claimant’s request to backdate her claim was properly denied.

                                               7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula Y. Caruso,                  :
                   Petitioner     :
                                  :
            v.                    :   No. 1917 C.D. 2015
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER

            AND NOW, this 23rd day of May, 2016, the order of the
Unemployment Compensation Board of Review dated August 24, 2015 in the
above-captioned matter is hereby AFFIRMED.


                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
