         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John R. Whitehead,                    :
                 Petitioner           :
                                      :
            v.                        :   No. 297 C.D. 2016
                                      :   Submitted: August 12, 2016
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL M. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: October 7, 2016

            John Whitehead (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board),
denying him unemployment compensation for two weeks because of his delay in
filing his claim.   Claimant was not aware that there was a biweekly filing
requirement; however, this requirement was set forth in the Unemployment
Compensation Handbook (Handbook). The Board agreed with the Referee that
Claimant’s failure to read the Handbook did not constitute a valid ground to excuse
Claimant’s delay. Discerning no error by the Board, we affirm.
            On or about October 4, 2015, Claimant applied for unemployment
compensation benefits following his separation from Kemper Equipment Company
(Employer). According to the claim record, a copy of the Handbook was mailed to
Claimant on October 6, 2015. Certified Record (C.R.) Item 1 at 2. Claimant did
not file a claim for benefits for the weeks ending October 10, 2015, or October 17,
2015.
            On November 6, 2015, Claimant contacted the Unemployment
Compensation Service Center (Service Center) to advise that he “never got a
[Personal Identification Number] PIN [].” C.R. Item 2 at 2. He acknowledged
receiving the Handbook but did not read it in its entirety. Claimant requested that
he be allowed to submit a backdated claim for the weeks ending October 10, 2015,
and October 17, 2015. Id. at 1. On November 9, 2015, the Service Center issued a
Notice of Determination denying Claimant’s request. C.R. Item 4 at 1. The
Service Center found that:

                                       ***
            2.     [] Claimant’s reason for requesting backdating was he
                   did not get his [PIN].
            3.     [] Claimant did not contact the Service Center until
                   11/6/15 to request backdating or notify us of not
                   receiving a [PIN].

Id. The Service Center explained that Claimant’s reason for backdating did not
meet the requirements for such a request. Claimant appealed, and a Referee
scheduled a hearing for December 9, 2015.
            At the hearing, Claimant testified that he did not know that he had to
file a claim every two weeks.      The Referee questioned Claimant about the
Handbook:

            [Referee:]   … After you filed your Application for Benefits,
                         did you receive a [] Handbook?
            [Claimant:] I did.
            [Referee:]   Did you read that [H]andbook?
            [Claimant:] I read some of it, but I didn’t – I’ll – I told the
                        lady, I said, I’ll be honest with you. I didn’t read
                        the whole thing. I read the part that told me to
                                        2
                          register, and then, I think, it mentioned about
                          registering within 30 days for Gateway. But, that’s
                          what I thought – that’s the two things I thought I
                          had to do w[ere] the only two things.
             [Referee:]   You didn’t – you don’t recall reading the portion
                          of the [H]andbook that indicated that you had to
                          file claims bi-weekly?
             [Claimant:] I do not recall reading that.
             [Referee:]   Is there a reason why you didn’t read the whole
                          [H]andbook?
             [Claimant:] Well, I didn’t do well in school either. I guess I
                         don’t follow directions well. I didn’t take the time
                         to read the whole thing.

Notes of Testimony, 12/9/2015, at 4; C.R. Item 8 at 5.
             On December 15, 2015, the Referee issued a decision/order making
the following findings of fact:

             1.    [C]laimant filed an Application for Benefits effective
                   October 4, 2015.
             2.    [C]laimant received a[] Handbook containing the
                   requirements to file biweekly claims.
             3.    [C]laimant did not read the entire [H]andbook.
             4.    [C]laimant did not attempt to file a biweekly claim until
                   November 6, 2015.
             5.    On November 6, 2015, [C]laimant[] requested
                   backdating of claims for the claim weeks ending
                   October 10, 2015 and October 17, 2015.




                                          3
C.R. Item 9 at 1. Section 401(c) of the Unemployment Compensation Law1
requires a claimant to make “a claim for compensation in the proper manner and
on the form prescribed by the [Department of Labor and Industry].” 43 P.S.
§801(c). Under the Department’s regulation, “[c]laims for compensation shall be
filed biweekly ….” 34 Pa. Code §65.43(a). 2 The Referee concluded that Claimant
did not file his benefits claim within the required time, which rendered him
ineligible for compensation. The Referee also concluded that Claimant did not
satisfy any of the exceptions allowed under the regulation for an untimely
submission of a claim. 34 Pa. Code §65.43a.3
             Claimant appealed the Referee’s decision, stating, again, he did not
know that he had to file claims biweekly and that he did not receive a PIN to file
his claim until after November 6, 2015. C.R. Item 10 at 3. After reviewing the
entire record, the Board concluded:

             [C]laimant’s failure to file his claims in a timely manner for the
             weeks at issue w[as] due to the fact that he was unaware of the

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
918.10.
2
  Section 65.43(a) provides:
        (a)     Claims for compensation shall be filed biweekly in accordance with this
                subsection.
                (1)     The Department will establish a schedule of consecutive 2-week
                        periods for each claimant, and may revise a claimant’s schedule as
                        necessary.
                (2)     At the end of each 2-week period for a claimant, the claimant may
                        file claims for compensations for both of the weeks or a claim for
                        compensation for one of the weeks. The claims or claim shall be
                        filed no later than the last day of the week immediately following
                        the 2-week period.
34 Pa. Code §65.43(a)(1)-(2).
3
  The text of the regulation is set forth below.


                                            4
             bi-weekly filing requirement, as he failed to read the relevant
             provisions contained in the [] Handbook.          Under these
             circumstances, [C]laimant is not entitled to backdating under
             Regulation 65.43a.

Board’s Decision, 2/24/2016, at 1; C.R. Item 11 at 1. Accordingly, the Board
adopted the Referee’s findings of fact and conclusions of law and affirmed the
Referee’s order. Claimant now petitions for this Court’s review.
             On appeal,4 Claimant contends that the Board erred in denying his
request to backdate his application for benefits for the weeks ending October 10,
2015, and October 17, 2015. The Board responds that backdating is allowed only
in limited situations. Claimant’s reason for not filing within the correct period
does 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 of Labor and Industry (the Department) has
promulgated regulations governing the procedures for unemployment benefits
applications. 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
wages for that week.” 34 Pa. Code §65.43a(a). However, the regulation also
allows for backdating of applications in certain circumstances. The regulation
states as follows:




4
  Our review in an unemployment appeal is to determine whether constitutional rights were
violated, an error of law was committed or the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704;
Uniontown Newspapers, Inc. v. Unemployment Compensation Board of Review, 558 A.2d 627,
628 (Pa. Cmwlth. 1989).


                                            5
             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 [W]eeks [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                            2
of 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).
             Claimant asserts that his claim should be backdated because he was
unaware that he had to file his claims biweekly, and he did not receive a PIN to
access the unemployment compensation services. Although Claimant does not

                                              6
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 his own. 34 Pa. Code §65.43a(e).
             We agree with the Board that Claimant did not qualify for this
exception. Claimant received the Handbook explaining the need to file biweekly.
Because Claimant did not read the entire Handbook, he did not attempt to file a
biweekly claim until November 6, 2015.        Although Claimant may not have
received a PIN, that is not the only or exclusive means with which to file a claim
for benefits.   Further, Claimant offered no explanation why he waited until
November 6, 2015, to contact the Service Center to request a PIN. We cannot
conclude on this record that Claimant made all reasonable and good faith efforts to
timely file his biweekly claims.
             Accordingly, for the reasons stated above, we affirm the decision of
the Board.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John R. Whitehead,               :
                 Petitioner      :
                                 :
           v.                    :    No. 297 C.D. 2016
                                 :
Unemployment Compensation        :
Board of Review,                 :
                 Respondent      :


                               ORDER

           AND NOW, this 7th day of October, 2016, the order of the
Unemployment Compensation Board of Review dated February 24, 2016, in the
above-captioned matter is AFFIRMED.

                              ______________________________________
                              MARY HANNAH LEAVITT, President Judge
