R.A. Naborn v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert A. Naborn, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 542 C.D. 2020
Respondent : Submitted: December 18, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: February 19, 2021
Robert A. Naborn (Claimant), pro se, petitions this Court for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) May 1, 2020
order affirming the Referee’s decision denying Claimant’s request to backdate his
UC benefit claims pursuant to Section 401(c) of the UC Law (Law)2 and Section
65.43a of the Department of Labor and Industry’s (Department) Regulations
(Regulations).3 Essentially, there is one issue before this Court: whether the UCBR
erred by upholding the Referee’s decision.4 After review, this Court affirms.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(c) (relating to qualifications required to secure compensation).
3
34 Pa. Code § 65.43a (relating to extended filing).
4
Claimant presents ten issues in his Statement of the Questions Involved: (1) whether
Claimant timely applied for UC benefits; (2) whether Claimant was entitled to UC benefits; (3)
whether the UC Service Center promised to and did mail a letter; (4) whether the UC website
mentions that the claim reopening process looks exactly the same as the initial claim process; (5)
whether Claimant filed an initial claim or a request to reopen a claim; (6) whether Claimant was
provided a Pennsylvania UC Handbook (UC Handbook); (7) whether Claimant read the UC
Handbook; (8) whether Claimant knew his initial claim was good for one year; (9) whether the UC
Handbook explains that initial UC claims are good for one year; and (10) whether the UC
The facts of this case are undisputed. Claimant filed a UC benefit
application on June 9, 2019, and received UC benefits after he was separated from
his employment with Reconstructionist Rabbinical College. Claimant had also been
employed as an instructor by Temple University (Temple) and the University of
Pennsylvania (Penn) during the spring 2019 semester. Claimant was reemployed as
an instructor at Temple and Penn for the fall 2019 semester, which ended on
December 5, 2019. On December 11, 2019, Claimant filed a new UC benefit
application.
On January 29, 2020, Claimant filed a “Claimant Questionnaire
Reporting Requirements Backdating” (Backdating Questionnaire), Certified Record
(C.R.) Item 2 at 1, with the Department’s Office of UC Benefits Policy, therein
seeking to have his UC benefit claims for claim weeks ending December 14, 2019,
through January 11, 2020,5 backdated, asserting:
I DID FILE A NEW CLAIM ON [DECEMBER 11, 2019]. I
RECEIVED AN EMAIL STATING I WOULD BE RECEIVING 3
LETTERS WITHIN 10-12 DAYS, INCLUDING A PIN NUMBER. I
NEVER RECEIVED THEM. WITH THE HOLIDAYS, I THOUGHT
THE MAIL MAY BE DELAYED AND IT WAS NOT ON MY MIND
[AND] THEN I WENT BACK TO WORK IN JANUARY[.]
....
AND NOW I REALIZED I DIDN’T FILE. VERBAL CERTIFICATION
TAKEN FOR WEEKS ENDING [DECEMBER 14, 2019 THROUGH
JANUARY 11, 2020]. FOR ALL WEEKS, NO WORK, NO
VACATION/HOLIDAY PAY, NO REFUSAL OF WORK, ABLE AND
AVAILABLE.
Handbook addresses reopening a claim in the proper context. See Claimant Br. at 6. Because
these issues are subsumed in this Court’s analysis of whether the UCBR erred by upholding the
Referee’s decision denying Claimant’s request to backdate his UC benefit claims, they have been
combined and will be addressed accordingly herein.
5
Claimant seeks backdated UC benefits for the five claim weeks ending December 14,
December 21 and December 28, 2019, and January 4 and January 11, 2020.
2
Backdating Questionnaire at 2.
On February 4, 2020, the UC Service Center determined that Claimant
was not eligible for UC benefits because “[C]laimant’s reason for backdating did not
meet the requirements under which backdating for a week or weeks could be
allowed. As such, the compensable weeks at issue cannot be backdated under
[S]ection 401(c) [of the Law].” C.R. Item 3, Notice of Determination, at 1. Claimant
appealed, and a Referee held a hearing on March 4, 2020.6
At the hearing, Claimant testified:
R[eferee] Okay. Now you filed your application the week
of June 9, 2019?
C[laimant] Right. That’s per a misunderstanding. I did
not know that this claim in December was still linked to
the claim in June because they are totally different
reason[s] for the claim in June.
R[eferee] But the claim -- the [a]pplication is valid for one
year.
C[laimant] Oh.
R[eferee] So that’s - anything that happens within that one
year goes to the original claim.
C[laimant] Given that I didn’t know that.
C.R. Item 7, Notes of Testimony (N.T.), at 2. Claimant explained that, after he filed
the December 11, 2019 application, he received the following email from the
Department:
This email serves as confirmation that your application for
[UC] benefits has been received by the [Department] and
is being processed. If there is any missing information, or
if any additional information is needed to process your
claim, you will be contacted by the UC Service Center at
6
Claimant was unrepresented at the hearing, and neither Temple nor Penn appeared.
3
the phone number or mailing address provided on your
application.
....
You will receive a Notice of Financial Determination and
a Claim Confirmation Letter which contains your
confidential [p]ersonal [i]dentification [n]umber or PIN in
the mail within the next 10-12 days. If you do not receive
these mailings after 12 days, contact the Department by
calling 888-313-7284. Please refer to the above filing date
and time, in addition to your name and social security
number, in any communications with the Department.
You must file biweekly claims for the weeks you are
totally or partially unemployed. . . .
N.T. Ex. CL-1; see also N.T. at 3.
Claimant recalled that he never received any paperwork from the
Department, but assumed the delay was due to the holidays. See N.T. at 6. Claimant
explained that he began working again in January 2020 and realized, after he began
thinking about taxes, that he never received anything from the Department. See N.T.
at 6-7. Claimant declared that he filed a new application in December 2019 because
he did not see the connection to his June 2019 application, and he was not informed
otherwise, until he called the UC Service Center on January 29, 2020. See N.T. at
4-8. When asked if he received the Pennsylvania UC Handbook (UC Handbook)
when he filed his June 2019 application, Claimant responded: “I don’t know[,] it
was just paperwork but not a book.”7 N.T. at 5.
7
The UC Handbook was not admitted into evidence at the hearing. Rather, the UCBR
attached a copy of the UC Handbook to its brief to this Court as Appendix 2. Notwithstanding,
this Court has taken judicial notice of the UC Handbook. See Hollingsworth v. Unemployment
Comp. Bd. of Rev., 189 A.3d 1109 (Pa. Cmwlth. 2018); see also Ciccolini v. Unemployment Comp.
Bd. of Rev. (Pa. Cmwlth. No. 1796 C.D. 2016, filed August 3, 2017). This Court acknowledges
that its unreported memorandum opinions may only be cited “for [their] persuasive value, but not
as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). The unreported cases are cited herein for their persuasive
value.
4
On March 5, 2020, the Referee found, in pertinent part: “The
Department informed Claimant in writing in various documents such as the [UC]
Handbook and in the financial determination that an application is open for a year.”
C.R. Item 8, Referee Dec., Finding of Fact (FOF) 5, at 2. Relying on Section 401(c)
of the Law and Section 65.43a of the Regulations, the Referee concluded:
Claimant testified he filed a new application, because he
didn’t realize he should submit the claims under his
original application filed in June 2019. The Department
notified Claimant in writing through documentation such
as the [UC H]andbook and the financial determination that
an application is open for a year. [] Claimant’s testimony
regarding the reason he did not submit his claims for
benefits for the weeks at issue when due, does not fall
within any of the justifying reason[s] set forth in the
[R]egulations set forth above that permits the backdating
of [a] claim week. Accordingly, [] Claimant’s request
must be denied.
Referee Dec. at 4. Claimant appealed to the UCBR, which adopted and incorporated
the Referee’s findings of fact and conclusions, but added the following factual
finding: “On June 14, 2019, [] [C]laimant filed a claim via the [I]nternet and certified
that he was responsible for reading the UC Handbook.” C.R. Item 10, UCBR Order,
at 1. Claimant appealed to this Court.8
Claimant argues that the UCBR erred by upholding the Referee’s
decision denying his request to backdate his UC benefit claims for the claim weeks
ending December 14, 2019 through January 11, 2020. Claimant specifically asserts
that the Referee erroneously relied on the UC Handbook, rather than his testimony
8
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
5
that he anticipated new claim paperwork or notice from the Department that he
improperly filed a new application. He further contends that, although he read the
UC Handbook, see Claimant Br. at 11, “[n]owhere does the UC Handbook mention
that there is a distinction between re-applying for or re-opening an existing claim on
the one hand and opening a new claim on the other[.]” Claimant Br. at 12.
The UCBR retorts that, when Claimant opened his June 2019 claim, he
“certified that he[] [was] responsible to read UCP-1 [(the UC Handbook)].” C.R.
Item 1, Claim Record, at 3; see also UCBR Br. at 3. “The [UCBR] concedes that
[FOF] 5 is not supported by the record. No financial determination is in the record
and the [] UC Handbook does not explain that an application for benefits is open for
a year. However, even excluding this finding, the [UCBR’s] decision is correct.”
UCBR Br. at 3 n.3. The UCBR adds:
Admittedly, the UC Handbook does not explain the 52-
week benefit year or the difference between filing a new
application and reopening an old one. However, the [UC
H]andbook is a guide and not a comprehensive treatise.
The UC Law and [R]egulations are available online, and
the [Department] website does explain the benefit year and
how and when to reopen an existing claim.[9]
UCBR Br. at 13 n.12.
Initially, Section 401(c) of the Law states, in relevant part:
Compensation shall be payable to any employe who is or
becomes unemployed, and who-
....
(c) Has made a valid application for benefits with respect
to the benefit year for which compensation is claimed and
9
See https://www.uc.pa.gov/unemployment-benefits/Am-I-Eligible/Pages/am-I-
eligible.aspx (last visited 2/17/2021); https://www.uc.pa.gov/unemployment-benefits/file/Pages/
Reopen-an-Existing-Claim.aspx (last visited 2/17/2021).
6
has made a claim for compensation in the proper manner
and on the form prescribed by the [D]epartment[.]
43 P.S. § 801(c). Section 4(w)(1) of the Law specifies:
A ‘Valid Application for Benefits’ means an application
for benefits on a form prescribed by the [D]epartment,
which is filed by an individual, as of a day not included in
the benefit year previously established by such individual,
who (1) has been separated from his work or who during
the week commencing on the Sunday previous to such day
has worked less than his full time due to lack of work and
(2) is qualified under the provisions of [S]ection [401](a),
(b) and (d)[, 43 P.S. § 401(a), (b), (d)].
43 P.S. § 753(w)(1) (emphasis omitted). Section 4(b) of the Law provides:
‘Benefit Year’ with respect to an individual who files or
has filed a ‘Valid Application for Benefits’ means the
fifty-two consecutive week period beginning with the day
as of which such ‘Valid Application for Benefits’ is filed,
and thereafter the fifty-two consecutive week period
beginning with the day as of which such individual next
files a ‘Valid Application for Benefits’ after the
termination of his last preceding benefit year.
43 P.S. § 753(b) (emphasis omitted).
The UC Handbook explains:
This [UC] Handbook, will answer many of your
questions about the benefits available to you and provide
information about your responsibilities as a participant in
the program. Read this booklet carefully and retain it for
reference for one year.* Visit www.uc.pa.gov for
additional information, including answers to Frequently
Asked Questions.
* This booklet is not an official statement of the
Law. Statements in this handbook are intended for
informational purposes only. If there is a conflict
between information in this booklet and the
provisions of the Law, the Law controls.
7
UCBR Br. App. 2 at 2. The UC Handbook further states: “You will receive a Notice
of Financial Determination [] from the [D]epartment that will state whether you
are financially eligible and, if you are, the amount of benefits you may receive. Your
Notice of Financial Determination will be accompanied by an insert that fully
explains financial eligibility.” Id. at 3 (italic emphasis added). In addition, the UC
Handbook directs that a claimant “must file a claim for each week in which [he is]
totally or partially unemployed,” id. at 4, and that his “biweekly claim must be filed
during the week (Sunday through Friday) immediately following the two weeks [he
is] claiming.” Id. at 5.
The UC Handbook further explains:
If You Forget To File
If you fail to file your biweekly claim at the proper time,
you may be denied benefits for those weeks and your UC
claim will become ‘inactive.’ You must contact your UC
[S]ervice [C]enter to reactivate your claim. If you return
to work but then become unemployed again, visit
www.uc.pa.gov or call the UC [S]ervice [C]enter to
reopen your claim.
REMEMBER! If you are waiting for the [D]epartment
to determine whether you are eligible for benefits,
continue to file your biweekly claims. If you are
determined to be eligible, you will only get benefits for the
weeks for which you filed claims.
Id. (italic emphasis added). In addition, the UC Handbook explains: “If you received
UC benefits on a prior claim by direct deposit within a year before you filed your
current application for benefits, and the bank account previously used for direct
deposit is still active, direct deposit will carry over to your current UC claim.” Id.
at 10 (italic emphasis added). Finally, under the UC Handbook heading, “YOU’VE
BEEN APPROVED FOR UC BENEFITS. NOW WHAT?” the chart reflects that a claimant
must immediately “[r]eport any separation from subsequent employment” “[b]y
8
reopening [this] claim over the [I]nternet at www.uc.pa.gov or by calling the [UC]
service center at 888-313-7284.” Id. at 19 (italic emphasis added).
In Beck v. Unemployment Compensation Board of Review (Pa. Cmwlth.
No. 459 C.D. 2013, filed September 11, 2013), this Court summarized:
The [Department] promulgated [R]egulations that govern
the mechanics of filing an application and claims for
compensation and the backdating of applications and
claim[] weeks. Generally, ‘[a]n application for [UC]
benefits is effective on the first day of the calendar week
in which the application is filed or deemed filed in
accordance with [Section] 65.43a [of the Regulations]
(relating to extended filing), whichever is earlier.’ 34 Pa.
Code § 65.42.
Beck, slip op. at 7. The Beck Court explained:
With regard to the filing of claims, ‘[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). . . .
[C]laim weeks [] may be backdated by the number of
weeks indicated in Section 65.43a(e) [of the Regulations]
if the claimant’s untimely filing of the claims is due to one
or more of the enumerated reasons in Section 65.43a(e)
[and (f) of the Regulations]. 34 Pa. Code § 65.43a(d).
Beck, slip op. at 7-8 (footnote omitted).
Section 65.43a(e) of the Regulations provides for a 6-week extension if
“[t]he Department suspends accepting filings or is unable to handle all filings, due
to an excessive volume of telephone calls or other reasons[;]” a 2-week extension if
“[t]he claimant attempts to file by telephone, Internet or fax transmission . . . , the
method used to 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
52-week extension if “[a] UC Office fails to accept a filing as a result of error or
9
mistake by the Department[;]” a 2-week extension for “[s]ickness or death of a
member of the claimant’s immediate family or an act of God[;]” a 2-week extension
“if the claimant makes all reasonable and good faith efforts to file timely but is
unable to do so through no fault of the claimant[;]” and a 52-week extension
[d]uring the period following the issuance of the March 6,
2020 Proclamation of Emergency Disaster, issued under
[Section 7301 of the Emergency Management Services
Code,] 35 Pa.C.S. § 7301 (relating to general authority of
[the] Governor) due to the novel coronavirus (COVID-19)
global pandemic, until the end of the current ‘high
unemployment’ period, as that term is defined in [S]ection
405-A(a.1)(2) [of the Law,10] []43 P.S § 815(a.1)(2)[].
34 Pa. Code § 65.43a(e). In addition, Section 65.43a(f) of the Regulations extends
the claim filing deadline due to a claimant’s illness or injury “until the last day of
the second week after the incapacity ends.” 34 Pa. Code § 65.43a(f). Finally,
“Claimant has the burden of proof to establish that his application satisfies the
requirements for backdating a claim for benefits.” Egreczky v. Unemployment
Comp. Bd. of Rev., 183 A.3d 1102, 1106 (Pa. Cmwlth. 2017).
Further,
[i]n UC cases, the [UCBR’s] findings of fact must be
supported by ‘[s]ubstantial evidence [which] is defined as
‘such relevant evidence which a reasonable mind would
accept as adequate to support a conclusion.’’ W[.] & S[.]
Life Ins[.] Co. v. Unemployment Comp[.] [Bd.] of Rev[.],
913 A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie
v. Unemployment Comp[.] [Bd.] of Rev[.], 738 A.2d 518,
521 (Pa. Cmwlth. 1999)). ‘The [UCBR’s] findings are
conclusive on appeal so long as the record, when viewed
in its entirety, contains substantial evidence to support the
findings.’ W[.] & S[.] Life Ins[.] Co., 913 A.2d at 335.
This Court is bound ‘to examine the testimony in the light
most favorable to the party in whose favor the [UCBR] has
found, giving that party the benefit of all inferences that
10
Added by Section 2 of the Act of February 9, 1971, P.L. 1.
10
can logically and reasonably be drawn from the testimony’
to determine if substantial evidence exists for the
[UCBR’s] findings. U[.]S[.] Banknote Co. v.
Unemployment Comp[.] [Bd.] of Rev[.], . . . 575 A.2d 673,
674 ([Pa. Cmwlth.] 1990). Moreover, ‘even if there is
contrary evidence of record, the [UCBR’s] findings of fact
are binding upon the Court where supported by substantial
evidence.’ Borough of Coaldale v. Unemployment
Comp[.] [Bd.] of Rev[.], 745 A.2d 728, 731 (Pa. Cmwlth.
2000).
Cambria Cnty. Transit Auth. (Cam Tran) v. Unemployment Comp. Bd. of Rev., 201
A.3d 941, 947 (Pa. Cmwlth. 2019).
Here, Claimant’s reason for failing to properly file his claims for weeks
ending December 14, December 21 and December 28, 2019, and January 4 and
January 11, 2020, is not among those listed in Section 65.43a(e) or (f) of the
Regulations. Rather, Claimant
attributes the lack of a timely filing to h[is] unfamiliarity
with the [UC] 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 be a cumbersome benefits system, we cannot allow a
lack of familiarity to be an excuse to permit backdating of
[UC] benefits.[11]
Beck, slip op. at 9. Claimant’s ignorance of the UC claim process and/or negligence
is not a basis upon which this Court may reverse the UCBR’s decision. See Ciccolini
v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 1796 C.D. 2016, filed August
3, 2017); Readinger v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 1288
C.D. 2016, filed May 22, 2017); Caruso v. Unemployment Comp. Bd. of Rev. (Pa.
Cmwlth. No. 1917 C.D. 2015, filed May 23, 2016); Shuty v. Unemployment Comp.
Bd. of Rev. (Pa. Cmwlth. No. 609 C.D. 2012, filed October 3, 2012); Valle v.
11
Nevertheless, this Court is dismayed that the Department’s UC claims’ system would
allow a claimant to create a new UC claim within the same benefit year, and that the UC Handbook
does not more clearly explain how subsequent claims are to be made in a single benefit year.
11
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 701 C.D. 2012, filed December
20, 2012).
Moreover, Claimant’s testimony provides substantial evidence to
support the UCBR’s adopted findings that Claimant did not review the UC
Handbook, and did not file claims for the weeks ending December 14, December 21
and December 28, 2019, and January 4 and January 11, 2020, until January 29, 2020.
As such, the findings are binding on appeal. Cam Tran. Further, although the UC
Handbook does not specify that subsequent UC benefit claims made within the same
benefit year should be made under the original claim, the UC Handbook clearly
states in several places that a claimant must reopen his original claim upon
subsequent unemployment, that he should make biweekly claims while he awaits an
eligibility determination, and that he should contact the UC Service Center with any
questions.
Claimant filed his new application on December 11, 2019, and did not
follow up on the Notice of Financial Determination or Claim Confirmation
Letter/PIN after 12 days passed as the Department’s December 11, 2019 email
directed, nor did he file biweekly claims with the UC Service Center until January
29, 2020. Given the particular circumstances of this case, this Court is constrained
to affirm the UCBR’s determination that Claimant’s ignorance and/or negligence
does not justify an extension under Section 65.43a(e) of the Department’s
Regulations. Accordingly, the UCBR properly upheld the Referee’s decision.
Based on the foregoing, the UCBR’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert A. Naborn, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 542 C.D. 2020
Respondent :
ORDER
AND NOW, this 19th day of February, 2021, the Unemployment
Compensation Board of Review’s May 1, 2020 order is affirmed.
___________________________
ANNE E. COVEY, Judge