          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George E. Egreczky,                     :
                 Petitioner             :
                                        :
             v.                         :   No. 2081 C.D. 2016
                                        :   Submitted: September 1, 2017
Unemployment Compensation               :
Board of Review,                        :
                 Respondent             :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                               FILED: November 30, 2017

             George E. Egreczky (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board) denying
his request to backdate his April 2015 application for unemployment compensation
benefits to December 28, 2014. In doing so, the Board affirmed the Referee’s
decision that Claimant failed to prove that he was eligible to backdate his application
under the applicable regulation of the Department of Labor and Industry
(Department). For the reasons that follow, we affirm.
             In July of 2014, Claimant applied for unemployment benefits following
the elimination of his position at Prudential Financial Company.                  The
Unemployment Compensation Service Center (UC Service Center) determined that
Claimant was eligible for benefits effective July 6, 2014, pursuant to the
Unemployment Compensation Law (Law).1 Claimant’s benefit year for the claim
ended June 13, 2015.
             On July 21, 2014, Claimant informed the UC Service Center that he
would receive severance pay from Prudential in the amount of $89,800. On July 28,
2014, the UC Service Center issued a notice of determination stating that Claimant’s
severance pay was deductible from his unemployment compensation pursuant to
Section 404(d)(1)(ii) of the Law, 43 P.S. §804(d)(1)(ii). This revised Claimant’s
unemployment compensation to $0 effective for the waiting week ending July 12,
2014, through June 13, 2015.         Claimant appealed the UC Service Center’s
determination, which was affirmed by a Referee on September 5, 2014.
             On April 22, 2015, Claimant appealed the Referee’s September 5, 2014,
decision. Claimant sought to change his application date from July 6, 2014, to
December 28, 2014. Claimant explained that, on April 16, 2015, he attended a
seminar at Pennsylvania CareerLink in Lackawanna County and learned that it is
possible to cancel an initial application for benefits and refile the application with a
later effective date. On April 30, 2015, the Board advised Claimant that his appeal
appeared to be untimely but allowed him to submit a written reply and request a
hearing on the timeliness issue. Claimant submitted a written response to the Board
but did not request a hearing. On May 26, 2015, the Board dismissed Claimant’s
appeal as untimely.
             Claimant requested reconsideration. On June 25, 2015, the Board
issued a remand order, which vacated its May 26, 2015, adjudication and scheduled
a hearing to provide Claimant the opportunity to establish the timeliness of his


1
 Act of December 5, 1936, Section Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
919.10.
                                           2
appeal to the Board. Following the hearing, on August 24, 2015, the Board issued
an adjudication dismissing Claimant’s petition as untimely, explaining that the last
day to file an appeal was September 22, 2014, and he did not file his appeal until
April 22, 2015.
             Thereafter, Claimant appealed to this Court, contending that the Board
should have considered his correspondence as a request to withdraw his initial
application for benefits and to cancel the corresponding benefit year. At the Board’s
request, this Court remanded the matter for the Board’s further consideration.
             On April 7, 2016, the Board issued an adjudication vacating its August
24, 2015, decision and remanding the matter to the UC Service Center. The Board
directed the UC Service Center to treat Claimant’s correspondence of April 22, 2015,
as a request to withdraw his application for benefits effective July 6, 2014; to cancel
the corresponding benefit year; and to refile his application for benefits effective
December 28, 2014.
             On May 23, 2016, the UC Service Center issued a determination
granting Claimant’s request to cancel his initial application for benefits effective
July 6, 2014. With regard to Claimant’s application for benefits on April 19, 2015,
the UC Service Center issued a determination that Claimant was financially
ineligible for benefits. Thereafter, on July 19, 2016, the UC Service Center denied
Claimant’s request to backdate his application for benefits to December 28, 2014,
explaining that Claimant’s “belief, in hindsight, that had he waited six months to file
his initial [application for benefits] to obtain more UC benefits does not constitute
an error or mistake by the UC service center.” Notice of Determination, 7/19/2016,
at 2; Certified Record (C.R.) Item No. 5.



                                            3
            Claimant appealed, and a hearing was scheduled. Before the Referee,
Claimant explained his reasons for seeking to backdate his application for benefits
to December 28, 2014. Claimant acknowledged that if he withdrew his July 2014
application for benefits, there was no guarantee he would be granted a December
2014 effective date for his refiled application for benefits. Notes of Testimony,
9/14/2016, at 29.
            On September 16, 2016, the Referee denied Claimant’s request to
backdate his application for benefits. The Referee reasoned:

                    In this case, [Claimant] alleged that he contacted the UC
            Service Center prior to filing for benefits after his separation
            from Prudential Financial and was given conflicting information
            in reference to the deductibility of his severance pay by UC
            Service Center representatives. Furthermore, [Claimant] alleged
            that it was the Department’s responsibility to advise as to when
            it would be most opportune for [Claimant] to file for benefits in
            order to maximize his receipt of benefits. However, the
            Department’s witness testified that it is not the Department’s
            responsibility to advise claimants when it is most opportune to
            file for benefits.
                   After careful review of the testimony and documentary
            evidence in the record, the referee finds [Claimant] has failed to
            meet his burden. Although the referee does not dispute that a
            Department representative informed [Claimant] on April 16,
            2015 that he could have cancelled his claim which was filed
            during July 2014 and refiled effective December 28, 2014,
            nevertheless, the referee finds the Department’s representative as
            credible that the Department did not have a responsibility to
            inform [Claimant] as such. Furthermore, the referee finds
            [Claimant] was not misled by the Department in reference to
            filing for benefits. Based upon the testimony and the
            documentary evidence in the record, the referee finds that
            [Claimant’s] request for backdating is denied.



                                         4
Referee’s Decision, 9/16/2016, at 5; C.R. Item No. 11. On November 2, 2016, the
Board affirmed the Referee’s order. The Board explained:

                   [Claimant] asserts that the Service Center did not comply
            with the Board’s remand order, which he interprets as directing
            the Service Center to allow [Claimant] to establish the December
            28, 2014, [application for benefits]. However, [Claimant]
            misinterprets the Board’s order, which did nothing more than
            direct the Service Center to treat [Claimant’s] correspondence
            dated April 22, 2015, as a request to withdraw his [application
            for benefits] and cancel the corresponding benefit year, with a
            refiled [application for benefits] of December 28, 2014. The
            Department did treat the correspondence as a request, considered
            the request and, unfortunately denied the request. Further,
            [Claimant] admitted that neither the Board’s counsel nor the
            Departmental representative guaranteed [Claimant] that he
            would obtain the desired result if he proceeded with his request.
                    The regulation allows for limited circumstances under
            which an [application for benefits] may be backdated. Here, the
            only error committed by the Department was when it failed to
            timely consider [Claimant’s] request when first made on April
            22, 2015. For this reason, the Department properly deemed
            [Claimant’s application for benefits] filed on April 19, 2016 …
            as [Claimant] would have filed a new [application for benefits]
            on this date if his request had been timely considered. Beyond
            this, the Department did not fail to accept [Claimant’s] filing, as
            his original July 6, 2014 [application for benefits] was accepted
            and his severance deduction properly adjudicated. [Claimant’s]
            subsequently obtained information that he may have obtained
            more benefits by delaying his [application for benefits], even if
            that information came from a Departmental representative, does
            not amount to mistake or error by the Department. The severance
            deduction was implemented to prevent the simultaneous receipt
            of benefits and large severance payouts that essentially amount
            to salary replacement. The Department is under no obligation to
            advise claimants how to circumvent the severance deduction.

Board Adjudication, 11/2/2016, at 5; C.R. Item No. 15 (emphasis in original).
Claimant now petitions for this Court’s review.

                                         5
              On appeal,2 Claimant argues that the Board erred in denying his request
to backdate his application for benefits to December 28, 2014, because the UC
Service Center misled or misinformed him. The Board counters that backdating is
allowed only in limited situations, and Claimant does not fit any of those situations.
Therefore, the Board did not err in affirming the Referee’s decision.
              Claimant has the burden of proof to establish that his application
satisfies the requirements for backdating a claim for benefits. See Blackwell v.
Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 2122 C.D. 2011,
filed September 25, 2012) (unreported).3 In general, “a claimant who files late is
ineligible, unless misled by unemployment compensation officials.” Menalis v.
Unemployment Compensation Board of Review, 712 A.2d 804, 805 (Pa. Cmwlth.
1998).
              The Department has promulgated regulations governing the procedures
for applying for unemployment benefits and establishing the circumstances where
backdating of an application is allowed. 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 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

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
  Pursuant to Commonwealth Court Internal Operating Procedure §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
                                               6
                  (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:

                  Reason [for Late Filing]                          Number of weeks [that can be Backdated]
 The Department suspends accepting filings or is unable
 to handle all filings, due to an excessive volume of                                 6
 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
 unavailable or malfunctions, and the attempt to file                                 2
 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 Department.                                                           52
 Sickness or death of a member of the claimant’s
 immediate family or an act of God.                                                   2
 Other, if the claimant makes all reasonable and good
 faith efforts to file timely but is unable to do so through                          2
 no fault of the claimant.




34 Pa. Code §65.43a(e).
                  Claimant invokes the exception where “[a] UC Office fails to accept a
filing as a result of error or mistake by the Department.” 34 Pa. Code §65.43a(e).
Claimant contends that representatives from the UC Service Center provided him
with incomplete or inaccurate information about his application. Specifically, when
Claimant contacted the UC Service Center, he was told, “go ahead and file and you’ll
get a determination.” Claimant’s Brief at 16. Claimant asserts that “[h]e had no
reason to question or know that he had a choice of when to initiate his application
for benefits, or that the timing of the application would determine his benefit
eligibility.” Id. at 19. Claimant argues that the UC Service Center had a duty to
inform him that he could delay filing for benefits and that the timing of his
application would determine his benefit eligibility.

                                                                7
             We disagree with Claimant. “To impose a duty on the [unemployment
compensation] authorities in each local office to sit down with each and every
applicant ... and fully explain all the possibilities under the law would render its
administration burdensome, cumbersome and utterly impossible to implement.”
Hughes v. Unemployment Compensation Board of Review, 186 A.2d 453, 454 (Pa.
Super. 1962). Here, the UC Service Center accepted Claimant’s filing of his
application for benefits effective July 6, 2014, and it made a deduction for his
severance pay. Claimant’s lack of knowledge that he could delay the filing of his
application for benefits is not tantamount to an error or mistake by the Department.
             Likewise, this Court is unpersuaded by Claimant’s argument that the
Department erred because a Pennsylvania CareerLink representative, Cathy Van
Valen, told him, in April 2015, that, “he should have delayed filing for benefits until
a more optimal month.” Claimant’s Brief at 23. Claimant’s conversation with Van
Valen occurred after December 2014 and did not impact Claimant’s failure to
withdraw his initial application for benefits. Claimant’s lack of knowledge about 34
Pa. Code §65.43a(e) does not advance his argument in this regard. See Helo v.
Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 2339 C.D. 2012,
filed August 19, 2013) (unreported), Slip. Op. at 7 (“As for Claimant’s contention
that he had no way of knowing about Section 65.43a(e), ‘ignorance of the law is no
excuse….’”).
             Claimant also contends that he was misled by the Department’s
attorney about how to backdate his application for benefits to December 28, 2014.
Claimant’s conversations with the Department’s attorney regarding the withdrawal
of his 2015 appeal occurred after December 2014, and Claimant acknowledged that
the Department’s counsel did not guarantee he would be successful in having his


                                          8
application backdated. This Court has stated, “[a]ny lay person who chooses to
represent himself in a legal proceeding must assume the risk that his lack of expertise
and legal training may prove to be his undoing.”             Daly v. Unemployment
Compensation Board of Review, 631 A.2d 720, 722 (Pa. Cmwlth. 1993). Claimant
may not have understood the purpose of the remand, or the legal requirements for
having his application for benefits backdated to December 28, 2014, but this is not
an error of the Department.
             Claimant’s reliance on Stana v. Unemployment Compensation Board of
Review, 791 A.2d 1269 (Pa. Cmwlth. 2002), is misplaced. In Stana, the claimant
received a notice of determination that she qualified for 16 weeks of unemployment
compensation benefits. Believing that the number of weeks was too low, the
claimant spoke with a UC Service Center representative and believed that her issue
had been resolved. Accordingly, the claimant took no further action, such as
appealing the notice of determination. In January 2001, she received a notice
advising that she only had four weeks of benefits left; the claimant then filed an
appeal.
             The referee dismissed the claimant’s appeal as untimely, finding that
the claimant was not misinformed or misled regarding her right of appeal. The Board
affirmed. This Court, however, vacated the Board’s order for the stated reason that
the referee did not make any credibility findings about the claimant’s testimony.
This Court stated that the claimant’s testimony, if believed by the fact-finder, could
be sufficient to allow an appeal nunc pro tunc.
             Here, unlike Stana, there are simply no statements attributable to the
Department that address the availability, timing, or need to appeal. The Board did
not provide Claimant with inaccurate or misleading information regarding his


                                          9
severance pay being deductible from his unemployment compensation benefits. The
fact that Claimant may have benefitted by filing his application for benefits at a later
date, or by withdrawing his initial application and refiling his application, does not
constitute an error by the Department.                As the Board correctly determined,
Claimant’s circumstances warranted, at most, a two-week backdate.
               The Board is the ultimate finder of fact in unemployment compensation
proceedings. Goppman v. Unemployment Compensation Board of Review, 845 A.2d
946, 947 n.2 (Pa. Cmwlth. 2004). “Findings of fact by the Board, which are not
specifically challenged, are conclusive upon review.” Hessou v. Unemployment
Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (quoting
Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624
A.2d 237, 239 n.5 (Pa. Cmwlth. 1993) (emphasis omitted)). Here, Claimant does
not challenge any of the Board’s findings of fact; rather, he takes issue with the
Board’s legal conclusion. The Board’s findings of fact are conclusive.4
               For the above-stated reasons, the order of the Board is affirmed.

                                           _____________________________________
                                           MARY HANNAH LEAVITT, President Judge




4
  Also, Claimant contends that the Board failed to render findings and a decision on his base year
at issue and cites YuYu Li v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No.
620 C.D. 2012, filed November 13, 2012) (unreported), to support his contention. We disagree.
In YuYu Li, the claimant raised the issue of “whether the Service Center applied the correct base
year to her application when determining whether her benefit year began in October 2011.” Slip
op. 7-8. Here, Claimant did not challenge whether the Service Center applied the correct base year
to his application. Additionally, Claimant did not challenge the referee’s finding that his filing of
the application for benefits in April 2015 established a base year of January 1, 2014, through
December 31, 2014. See Referee’s Decision, 9/16/2016, at 3, Finding of Fact No. 21; C.R. Item
No. 11. Accordingly, Claimant has waived this issue.
                                                10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George E. Egreczky,                   :
                 Petitioner      :
                                 :
           v.                    :        No. 2081 C.D. 2016
                                 :
Unemployment Compensation        :
Board of Review,                 :
                 Respondent      :


                               ORDER

           AND NOW, this 30th day of November, 2017, the order of the
Unemployment Compensation Board of Review dated November 2, 2016, in the
above-captioned matter is AFFIRMED.

                               _____________________________________
                               MARY HANNAH LEAVITT, President Judge
