M. Cerciello v. UCBR
587 C.D. 2016
| Pa. Commw. Ct. | Oct 12, 2016Background
- Claimant Mark Cerciello applied for unemployment compensation (UC) on Dec. 9, 2012, establishing a base year July 1, 2011–June 20, 2012. The Department mailed a UC handbook advising biweekly claims and to continue filing while appeals are pending.
- Dept. issued a Dec. 18, 2012 financial determination finding Claimant ineligible; Claimant’s counsel fax-appealed on Dec. 28, 2012. The Dept. later vacated the initial determination and on Jan. 31, 2013 issued a revised determination finding financial eligibility.
- Claimant did not file biweekly claim forms for weeks ending Dec. 15, 2012 through Aug. 31, 2013 and later sought an extension to backdate those claims. The Dept. denied the request and a referee denied relief after a hearing that Claimant did not attend (counsel attended).
- The UCBR affirmed the referee; Claimant sought reconsideration which was deemed denied by operation of law. This Court previously held the Department lacked jurisdiction to vacate the initial determination and remanded for further factfinding on eligibility, but did not decide entitlement to backdating.
- On remand the referee and UCBR found Claimant financially eligible but denied his request to extend/backdate filing. Claimant appealed to this Court; the panel affirms the UCBR order.
Issues
| Issue | Cerciello’s Argument | UCBR/Department’s Argument | Held |
|---|---|---|---|
| Whether this Court’s prior decision mandates backdating Claimant’s claims | Prior opinion required backdating as a matter of law | Prior opinion only found lack of Dept. jurisdiction to revise determination and did not reach merits | Denied — prior opinion did not decide entitlement to backdating |
| Whether UCBR abused discretion by refusing to take additional evidence/remand hearing | Denial was improper; Claimant could not attend hearing due to snow and counsel attended | Claimant failed to appear or request a continuance or proffer excuse to referee | Denied — no abuse of discretion where claimant did not appear or request continuance; counsel’s unexplained absence insufficient |
| Whether Claimant may backdate weeks under 34 Pa. Code §65.43a(e) (extended filing for Dept. error) | Dept.’s failure to notify Claimant/counsel of revised eligibility caused Claimant not to file; thus extended filing applies | §65.43a(e) requires that a UC office fail to accept a filing; Claimant did not attempt to file weeks | Denied — claimant never attempted to file; rule applies to accepted-but-failed filings, not to failure to file because of lack of notice |
| Whether Dept.’s alleged failure to notify counsel of revised determination violated Claimant’s right to counsel | Lack of notice to counsel deprived Claimant of counsel and caused nonfiling | Statutes require notice to claimant and employers of determinations/revisions, not to counsel; record shows revised notice mailed to Claimant | Denied — no statutory duty to notify counsel and record indicates claimant was mailed the revised determination |
Key Cases Cited
- Cooper Industries, Inc. v. Unemployment Compensation Board of Review, 555 A.2d 969 (Pa. Cmwlth. 1989) (agency has discretion to allow taking of additional evidence)
Order: The Commonwealth Court affirmed the March 18, 2016 UCBR order denying Claimant’s request to extend/backdate filing and denying remand for additional evidence.