           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Gajewski,                               :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 1936 C.D. 2016
                                                 : Submitted: April 13, 2017
Unemployment Compensation                        :
Board of Review,                                 :
                                                 :
                        Respondent               :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                               FILED: June 5, 2017

                 Jennifer L. Gajewski (Claimant) petitions, pro se, for review of an
order of the Unemployment Compensation Board of Review (Board) finding her
ineligible for unemployment compensation benefits under Section 401(b)(1)(i) of
the Unemployment Compensation Law (Law)1 because she did not register on the
Job Gateway website2 that is part of the Pennsylvania CareerLink system within 30
days of her initial application for benefits. For the reasons set forth below, we
affirm.
1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(b)(1)(i).
2
    https://www.jobgateway.pa.gov (last visited May 1, 2017).
             Claimant filed an application for unemployment compensation
benefits on June 23, 2016. (Record Item (R. Item) 1, Claim Record; R. Item 10,
Referee Decision and Order, Finding of Fact (F.F.) ¶1.) On July 14, 2016, the
Department of Labor and Industry (Department) sent Claimant a letter advising her
that it had been more than 21 days since she had applied for benefits and that she
had not yet registered for employment search services on the CareerLink website.
(R. Item 2, July 14, 2016 Letter; R. Item 10, Referee Decision and Order, F.F. ¶2.)
This letter advised Claimant that if she did not complete her registration, either on
the website or in person at a CareerLink office, by July 23, 2016, the 30th day after
her initial claim, she would be disqualified from receiving benefits beginning with
the week ending July 30, 2016. (R. Item 2, July 14, 2016 Letter at 1.) In addition,
the letter provided instructions on how claimants can check their status on the
CareerLink website to determine whether or not they had completed registration
and stated that claimants who had difficulty in registering should contact their local
CareerLink office. (Id. at 1-2.) On August 1, 2016, as a result of Claimant’s
failure to register for CareerLink services within 30 days of her initial claim, the
Unemployment Compensation Service Center issued a determination finding her
ineligible for benefits of the Law pursuant to Section 401(b)(1)(i). (R. Item 3,
Notice of Determination.)
             Claimant appealed the Service Center’s determination and a hearing
was held before the Referee on August 23, 2016. At the hearing, the Referee
admitted into evidence an Attestation and Certification completed by Department
personnel, with attached CareerLink records, showing that Claimant had not
completed her CareerLink registration as of July 29, 2016. (R. Item 9, Aug. 23,
2016 Hearing Transcript (H.T.) at 2-3; R. Item 5, Service Center Exhibits 4, 6, 7.)


                                          2
Claimant testified at the hearing that she attempted to register for CareerLink’s
online service on July 15, 2016, within the 30-day period, and at the time she
believed she had completed the required registration. (R. Item 9, H.T. at 4.)
Claimant stated that she did not see a notification on the website that her
registration was incomplete and she believed that there were incompatibility issues
between her internet browser and the CareerLink website that resulted in frequent
error pop-up messages. (Id.) Claimant testified that when she finally spoke to a
Service Center staff member after learning that her registration was not complete,
the staff member walked her through the process and explained that she had to post
her resume in order to complete registration. (Id.) Claimant stated that until that
point, however, “I just thought that giving my name, address, and information was
what it meant to register.” (Id. at 4-5.)
             In an August 24, 2016 decision and order, the Referee affirmed the
Service Center’s determination and held that Claimant was ineligible for
unemployment compensation under Section 401(b)(1)(i). (R. Item 10, Referee
Decision and Order.) In the decision, the Referee found that Claimant did not
complete her CareerLink registration within 30 days of her initial claim for
benefits despite having received an unemployment compensation handbook and
the July 14, 2016 letter which provided instructions on how to complete
registration for the CareerLink website within the statutory timeframe. (Id., F.F.
¶¶2-4.) The Referee concluded that, though Claimant credibly explained during
the hearing that her failure to complete her CareerLink was not deliberate, she was
nonetheless ineligible for benefits until the week in which she successfully
completed her CareerLink registration. (Id., Reasoning at 2.)




                                            3
              Claimant appealed to the Board, and, on October 11, 2016, the Board
issued an order affirming the Referee’s decision and order. (R. Item 12, Board
Order.) In the order, the Board adopted and incorporated the Referee’s findings of
fact and conclusions and stated:

              The claimant should have realized when she received the
              21-day letter that she was not completely registered for
              work. She had the option to seek assistance if she was
              having difficulty. There is no documentation of the date
              on which the claimant completed her registration,
              although she testified that she had done so.

(Id.)
              In her appeal to this Court,3 Claimant argues that she should not have
been determined ineligible for benefits for the period prior to her successful
completion of CareerLink registration in August 2016 because the reason for her
late registration was due to problems with the CareerLink website. Claimant
asserts that her problems with the website were compounded by the fact that each
time she called the Department’s hotline, the required wait time to speak with a
staff person was over 45 minutes, which was difficult for her because at that time
she was caring for a newborn baby.
              Pursuant to Section 401(b)(1)(i) of the Law, a claimant must register
for employment search services offered by the CareerLink system4 within 30 days

3
  Our scope of review of the Board’s decision is limited to determining whether errors of law
were committed, constitutional rights or agency procedures were violated and necessary findings
of fact are supported by substantial evidence. Department of Labor and Industry v.
Unemployment Compensation Board of Review, 131 A.3d 597, 600 n.6 (Pa. Cmwlth. 2016) (en
banc).
4
  The CareerLink system is defined in Department regulations as “[t]he system of offices,
personnel and resources, including the Commonwealth Workforce Development System or
(Footnote continued on next page…)
                                              4
after the initial application for benefits in order to demonstrate that she is “making
an active search for suitable employment.” 43 P.S. § 801(b)(1)(i). Department
regulations provide that in order to complete the process of registration for
CareerLink services, a claimant must “[p]rovide information regarding education,
work history and qualifications and other information required by the Department
that is relevant to receipt of employment search services.” 34 Pa. Code § 65.11(a).
Department regulations further provide that if a claimant does not register with the
CareerLink system within 30 days after the application, “the claimant will be
ineligible for compensation for any week that ends more than 30 days after the
claimant files his application for benefits unless the claimant registers by Sunday
of that week.” 34 Pa. Code § 65.11(c).
             A claimant’s failure to register with CareerLink, however, does not
constitute a per se disqualification from receipt of benefits. Department of Labor
and Industry v. Unemployment Compensation Board of Review, 131 A.3d 597, 600
(Pa. Cmwlth. 2016) (en banc). Section 401(b)(6) of the Law recognizes that the
Department “may waive or alter the requirements of this subsection in cases or
situations with respect to which the secretary finds that compliance with such
requirements would be oppressive or which would be inconsistent with the
purposes of this act.” 43 P.S. § 801(b)(6); see also 34 Pa. Code § 65.11(f)(6). In
Department of Labor and Industry, this Court explained that this provision permits
the Department to waive the 30-day registration requirement where the claimant


(continued…)
successor electronic resources, through which the Department provides services under the
Wagner-Peyser Act (29 U.S.C.A. §§ 49–49l-2) and the Workforce Investment Act of 1998 (29
U.S.C.A. §§ 2801–2945) or similar or successor statutes.” 34 Pa. Code § 65.11(a).


                                           5
can show “good cause” for not timely registering. 131 A.3d at 600-01. As this
Court explained, there is no precise definition for “good cause” under the Law, and
each case must be analyzed on its own facts to determine whether the claimant’s
reasons for failing to timely register for the employment search services were
reasonable and whether the claimant complied with the “central purpose” of
Section 401(b) by “making an active search for suitable employment.” Id. at 601-
02 (quoting 43 P.S. § 801(b)(1)). Thus, in Department of Labor and Industry, this
Court affirmed a determination by the Board excusing a claimant from the 30-day
registration requirement where the claimant credibly explained that he mistakenly
registered for a similar job search website to the Job Gateway site and he was
receiving job referrals from that website. Id. at 602.
             Upon review, we conclude that the Board did not err in affirming the
denial of benefits to Claimant pursuant to Section 401(b)(1)(i) of the Law.
Claimant does not dispute that she failed to register within 30 days of her initial
application for benefits. Furthermore, the record supports that Claimant was aware
of the requirement under the Law that she register for CareerLink within 30 days
of her initial claim. Claimant testified that, when she initially applied for benefits,
she was notified that she would have to register within 30 days of her June 23,
2016 application date and she was given an unemployment compensation
handbook advising her of the application process. (R. Item 9, H.T. at 3, 5.) The
record also includes a copy of the July 14, 2016 Department letter that was
addressed to Claimant’s address of record and advises her that 21 days had elapsed
since her initial application and her CareerLink registration was not yet complete;
in addition, the Department submitted an Attestation and Certification at the
Referee’s hearing affirming that this letter was mailed to Claimant on July 14,


                                          6
2016. (R. Item 2, July 14, 2016 Letter; R. Item 5, Service Center Ex. 4, Attestation
and Certification; R. Item 9, H.T. at 1.) Under the “mailbox rule,” this evidence
was sufficient to establish an evidentiary presumption that Claimant received the
21-day notice letter and to shift the burden to Claimant to show that she did not in
fact receive the notice. See Douglas v. Unemployment Compensation Board of
Review, 151 A.3d 1188, 1191-93 (Pa. Cmwlth. 2016); Volk v. Unemployment
Compensation Board of Review, 49 A.3d 38, 41-42 & n.7 (Pa. Cmwlth. 2012) (en
banc). Claimant’s testimony that “I don’t recall receiving that letter but that
doesn’t mean that I didn’t receive it” was not sufficient to rebut the presumption
that she received the 21-day notice letter. (R. Item 9, H.T. at 3.)
             Claimant argues that she had good cause for her failure to complete
her CareerLink registration within 30 days of her initial claim for benefits because
the CareerLink website fell below the standards of e-commerce sites. As problems
with the CareerLink website, Claimant specifically cites frequently appearing pop-
up windows informing the user of errors when none in fact existed and the lack of
safeguards to ensure that a user would not miss filling out any of the required fields
when completing the registration form.         The Board did not expressly address
whether Claimant established good cause for her failure to timely register for
CareerLink but determined that even if she did have problems with the website,
Claimant did not seek assistance even though the Department’s 21-day letter stated
that she could contact her local CareerLink office if she had difficulty registering
on the website. (R. Item 2, July 14, 2016 Letter at 2; R. Item 12, Board Order.) As
described above, Claimant’s receipt of the 21-day letter advising her that her
CareerLink registration was incomplete and the steps she could take to complete
registration is supported by the record.


                                           7
             Claimant also argues that she repeatedly attempted to contact the
Department via telephone but she could not wait for more than 45 minutes to speak
with a staff member because she was caring for a newborn baby. This argument
does not find support in the evidence presented at the Referee’s hearing. While
Claimant did testify at the hearing that she made “numerous phone calls to the
Service Center to try to rectify the situation” (R. Item 9, H.T. at 5), Claimant did
not testify that there were excessive wait times or that she was caring for a
newborn baby at that time. Instead, Claimant testified that the personnel she spoke
with were “very, very helpful” and that one of the individuals she spoke to helped
her complete the registration process by showing her the portion of the website
where she could upload her resume to complete her employment search profile.
(Id. at 4-5.) Claimant testified that she had “just overlooked” that portion of the
website until that point and had not realized that more was required than simply
providing her name and address. (Id.)
             Accordingly, we conclude that the record before the Referee does not
demonstrate that Claimant acted reasonably and that she complied with the “central
purpose” of Section 401(b) by “making an active search for suitable employment.”
Department of Labor and Industry, 131 A.3d at 601-02 (quoting 43 P.S. §
801(b)(1)). Therefore, Claimant was not entitled to a good cause waiver of the
requirement of completing her registration for CareerLink services within 30 days
of her initial application for benefits as required by Section 401(b)(1)(i). The order
of the Board is affirmed.

                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Gajewski,                   :
                                     :
                     Petitioner      :
                                     :
            v.                       : No. 1936 C.D. 2016
                                     :
Unemployment Compensation            :
Board of Review,                     :
                                     :
                     Respondent      :



                                  ORDER

            AND NOW, this 5th day of June, 2017, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
