             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brien L. Readinger,            :
                               : No. 1288 C.D. 2016
                    Petitioner : Submitted: December 16, 2016
                               :
                 v.            :
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :

BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: May 22, 2017


                Brien L. Readinger (Claimant) petitions pro se for review of the June
8, 2016 order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s determination and denied Claimant’s request to backdate his
application for benefits pursuant to Section 401(c) of the Unemployment
Compensation Law (Law)1 and the Board’s regulation at 34 Pa. Code §65.43a. We
affirm.
                Claimant’s last day of work with Reading Area Water Authority
(Employer) was March 5, 2016. On March 6, Employer notified Claimant that he
was put on suspension, and Employer ultimately terminated his employment on

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§801(c).
March 14, 2016. Findings of Fact (F.F.) Nos. 6-7. Claimant filed an application
for unemployment compensation benefits via the Internet on March 19, 2016,
effective March 13, 2016.      F.F. No. 1.    Claimant was considered financially
eligible and received an Unemployment Handbook that explained his rights and
responsibilities regarding the filing for benefits. F.F. No. 1-2. Claimant filed his
first bi-weekly claim for benefits on March 27, 2016, for waiting week ending
March 19, 2016, and compensable week ending March 26, 2016. F.F. No. 4.
             On March 29, 2016, Claimant contacted his local service center and
requested backdating credit for his application effective March 6, 2016, and credit
for waiting week ending March 12, 2016, asserting that he was unaware that he
could file for benefits while on a suspension. F.F. Nos. 5-6. The service center
denied Claimant’s request to backdate his application for benefits, stating that
Claimant’s application did not meet the requirements for which backdating could
be allowed pursuant to Section 401(c) of the Law and 34 Pa. Code §65.43a.
Claimant appealed.
             A referee held a hearing on April 26, 2016.         Claimant, the only
participant, testified that he waited until March 29, 2016, to request his application
be backdated because he did not know that his suspension would be permanent.
Notes of Testimony (N.T.), 04/26/2016 at 10. He explained that his supervisor
called to inform him of his suspension and that Employer would be conducting an
investigation; Claimant stated that there was no way for him to foresee his ultimate
need to file for unemployment compensation benefits. N.T., 04/26/2016 at 6, 10-
11.
             On April 26, 2016, the referee affirmed the service center’s denial of
Claimant’s request for backdating.      The referee concluded that Claimant had


                                          2
received his Unemployment Handbook, he was aware of his rights and
responsibilities for filing for unemployment compensation benefits, and there was
no evidence that Claimant was misinformed regarding these rights or
responsibilities. The referee determined that Claimant waited until March 29,
2016, to request backdating and his reason for not timely filing his application and
claim for the waiting week was not included under those enumerated in the
regulations.
               Claimant appealed to the Board, arguing that he was not aware of his
right or responsibility to apply for unemployment compensation benefits during the
week in which he was suspended, prior to his permanent separation from
employment.       On June 8, 2016, the Board determined that Claimant did not
credibly establish non-negligent good cause for failing to file when he was first
suspended and affirmed the decision of the referee, adopting and incorporating the
referee’s findings and conclusions. The Board subsequently denied Claimant’s
request for reconsideration.
               On appeal to this Court,2 Claimant argues that the Board erred in
determining that he failed to establish non-negligent good cause for his failure to
timely file for the waiting week ending March 12, 2016. Claimant asserts that he

       2
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, and whether necessary findings of fact are
supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843-44 (Pa. Cmwlth. 1987). The Board is the ultimate finder of fact in
unemployment compensation proceedings. Peak v. Unemployment Compensation Board of
Review, 501 A.2d 1383, 1389 (Pa. 1985); Chamoun v. Unemployment Compensation Board of
Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may
either accept or reject a witness’ testimony whether or not it is corroborated by other evidence of
record. Id. Findings of fact are conclusive on appeal if the record contains substantial evidence to
support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831
(Pa. 1977).


                                                 3
filed his application as timely as he was able because he was suspended pending an
investigation and was not informed of his termination until March 13, 2016.
Claimant further contends that he had an illness and met the requirements of 34 Pa.
Code §65.43a(h), which should entitle him to his requested backdating.3 We
disagree.
               Section 401(c) of the Law requires individuals applying for
unemployment compensation benefits to make valid applications for benefits with
respect to the benefit year for which compensation is claimed and make claims for
such compensation in the proper manner and on the form prescribed by the
Department of Labor and Industry (Department).                       43 P.S. §801(c).          The
Department regulations governing the filing of applications and requests for
backdating state that “[a]n 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 [34 Pa. Code] §65.43a (relating to extended filing), whichever is earlier.” 34
Pa. Code §65.42. An application may be backdated from the date of actual filing if
one of the reasons outlined in 34 Pa. Code §65.43a(e) applies. 34 Pa. Code
§65.43a(c).
               The regulation at 34 Pa. Code §65.43a enumerates the circumstances
under which an extended filing of an application may be permitted. In pertinent
part, it states:



       3
           Claimant dedicated a significant portion of the argument in his brief to the issue of his
eligibility for unemployment compensation benefits, which is not contemplated in this case, but
is the subject of a second appeal docketed in this Court at No. 1289 C.D. 2016. The instant case
only concerns the issue of backdating for the waiting week and, therefore, this Court will not
address the merits of Claimant’s eligibility for unemployment compensation benefits here.


                                                 4
(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 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 §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                Number of weeks
 The       Department       suspends
 accepting filings or is unable to
 handle all filings, due to an              6
 excessive volume of telephone
 calls or other reasons.
 The claimant attempts to file by
 telephone, Internet or fax
 transmission in accordance with            2
 §65.41      (relating   to    filing
 methods), the method used to
                              5
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                52
mistake by the Department.
Sickness or death of a member of
the claimant's immediate family                2
or an act of God.
Other, if the claimant makes all
reasonable and good faith efforts
to file timely but is unable to do             2
so through no fault of the
claimant.

(f) If a claimant fails to file a claim for compensation
within the time allowed in subsection (a) or (b) or §65.43
due to the claimant’s illness or injury, the time for filing
the claim is extended until the last day of the second
week after the incapacity ends.

(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 §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.

(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.
                             6
34 Pa. Code §65.43a. The claimant bears the burden of proof in establishing that
an application meets the necessary requirements for backdating a claim for
benefits. See Russell v. Unemployment Compensation Board of Review, 812 A.2d
780, 784-85 (Pa. Cmwlth. 2002); Menalis v. Unemployment Compensation Board
of Review, 712 A.2d 804, 806 (Pa. Cmwlth. 1998). As a general rule, however, a
claimant who files late is ineligible, unless he or she is misled by the Department.
Snipas v. Unemployment Compensation Board of Review, 401 A.2d 888, 889 (Pa.
Cmwlth. 1979).
             Here, Claimant testified that he did not timely file for benefits for the
weeks at issue, because he believed that his suspension was temporary and he did
not realize that he could file for benefits during his suspension.         However,
Claimant does not argue that he was misled by the Department, and his alleged
misunderstanding of his suspension status is not a basis for allowing backdating
under 34 Pa. Code §65.43a.
             Though Claimant cited illness as his reason for leaving work early on
his last day of employment, he asserts his illness as a reason to grant backdating
for the first time on appeal before this Court. However, because Claimant did not
raise this issue before the Board, it is waived and will not be considered on appeal.
Pa. R.A.P. 1551(a); Grever v. Unemployment Compensation Board of Review, 989
A.2d 400, 402-03 (Pa. Cmwlth. 2010).
             Accordingly, we affirm the Board’s order.




                                       MICHAEL H. WOJCIK, Judge



                                          7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brien L. Readinger,               :
                                  : No. 1288 C.D. 2016
            Petitioner            :
                                  :
                   v.             :
                                  :
Unemployment Compensation         :
Board of Review,                  :
                                  :
                       Respondent :

                                ORDER


            AND NOW, this 22nd day of May, 2017, the order of the
Unemployment Compensation Board of Review, dated June 8, 2016, at No. B-16-
09-B-2314, B-589822, is AFFIRMED.




                                  __________________________________
                                  MICHAEL H. WOJCIK, Judge
