M.P. Jakubowicz v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael P. Jakubowicz, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 618 C.D. 2016
Respondent : Submitted: October 21, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 17, 2017
Michael P. Jakubowicz (Claimant), pro se, petitions this Court for
review of the Unemployment Compensation Board of Review’s (UCBR) February
22, 2016 order affirming the Referee’s decision denying Claimant’s appeal as
untimely (UCBR Order). The issue before this Court is whether the UCBR properly
dismissed Claimant’s appeal. After review, we vacate the UCBR Order and remand
the matter to the UCBR for it to remand to a referee for further proceedings.
Claimant was employed by Purolite, Inc. until May 29, 2015, when he
was separated from Employer with severance pay. On May 31, 2015, Claimant filed
for unemployment compensation (UC) benefits under the UC Law (Law).1 On June
5, 2015, the Department of Labor and Industry’s (Department) Allentown UC Service
Center issued a determination that Claimant was financially eligible for UC benefits.
On June 24, 2015, the UC Service Center issued two determinations finding that
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-
918.10.
Employer’s severance payments were deductible from his UC benefits, and
establishing a non-fault overpayment. In telephone conversations with the UC
Service Center, Claimant was advised to reopen his UC claim on August 29, 2015.
On July 13, 2015, the UC Service Center issued a determination stating:
Section 401(b)(1)(i) of the [Law2] and [Section 65.11(c) of
the Department’s Regulations,] 34 Pa. Code § 65.11(c)[,]
provide that a claimant must register for employment-
search services offered by the Pennsylvania CareerLink®
system[3] [(CareerLink)] within 30 days after filing the
initial application for benefits in order to be eligible for
benefits. Because [Claimant] failed to register as required,
[Claimant] is ineligible for benefits.
In accordance with Section 401(b)(1)(i) of the [] Law and
[Section 65.11(c) of the Department’s Regulations], you are
disqualified from receiving benefits for the week ending
07/04/2015 and thereafter. This disqualification will
continue to apply until you register. If you register on
Sunday, the last week you are disqualified is the previous
week. If you register from Monday through Saturday, the
last week you are disqualified is the week in which you
register.
Notice of Determination, July 13, 2015 (July 13, 2015 Determination) (emphasis
added).
On July 17, 2015, Claimant attempted to register on CareerLink. See
Original Record (O.R.) Item No. 9, Ex. SC17, Commonwealth Workforce
Development System (CWDS) – View Individual Basic Information, Participant
2
43 P.S. § 801(b)(1)(i).
3
“Pennsylvania CareerLink® system” is defined as “[t]he system of offices, personnel and
resources, including the Commonwealth Workforce Development System or successor electronic
resources, through which the Department provides services under the Wagner-Peyser Act (29
U.S.C.[] §§ 49-49l-2) and the Workforce Investment Act of 1998 (29 U.S.C.[] §§ 2801-2945) or
similar or successor statutes.” 34 Pa. Code § 65.11(a).
2
Identification (ID) No. 4408933. However, the record is unclear whether this was
Claimant’s first attempt to register.4
As previously instructed, Claimant reopened his claim on August 29,
2015. On September 10, 2015, the UC Service Center issued a determination
granting Claimant UC benefits beginning with the waiting week ending August 29,
2015 (September 10, 2015 Determination). Claimant began receiving benefits as of
week ending October 11, 2015.
On December 24, 2015, Claimant filed a Petition for Appeal (Appeal
Petition) with the Department seeking benefit payments for the weeks from August
4
Claimant contends that he originally registered with JobGateway.pa.gov on June 29, 2015
and was provided ID No. 4396547. See Claimant’s Br. at 4. Job Gateway is CareerLink’s on-line
registration system, accessed via JobGateway.pa.gov. However, there is no record evidence of that
registration. In contrast, Claimant testified at the Referee hearing that “[he] originally registered in
July[,]” and “July the 17th was [his] first filing in the system[.]” O.R. Item No. 12, Notes of
Testimony at 4-5. Despite this testimony, Claimant contends in his brief that, on July 17, 2015, he
had problems accessing the system and registered again, receiving ID No. 4408933. See
Claimant’s Br. at 4. Notwithstanding this conflict, the record appears to establish that Claimant, at
the very least, attempted to register by July 17, 2015. The record contains several printouts from
the CWDS. Exhibit SC17 contains the CareerLink logo, Claimant’s participant number, name,
address and is entitled “View Individual Basic Information.” O.R. Item No. 9, Individual Basic
Information with Attestation & Certification (Basic Information), Ex. SC17. The document reveals
that it was created by CWDS staff on July 17, 2015 and updated by the “CWDS system” on
September 29, 2015. Id. Exhibit SC18 contains the CareerLink logo, Claimant’s participant
number, name, address and is titled “View Work Record.” O.R. Item No. 9, Basic Information, Ex.
SC18. The document shows that it was created on September 29, 2015 by Claimant. Id. Exhibit
SC19 is another document entitled “View Work Record” that contains the CareerLink logo,
Claimant’s participant number, name, and address and indicates it was last updated on October 13,
2015. O.R. Item No. 9, Basic Information, Ex. SC19.
Notably, after the UCBR dismissed Claimant’s appeal, Claimant filed a March 29, 2016
reconsideration request. Claimant attached thereto a printout entitled “CWDS/JobGateway Activity
Summary of Michael P. Jakubowicz, P ID 4408933,” which reveals that, on July 17, 2015,
Claimant’s “User Record Status” was “Enrolled[.]” O.R. Item No. 16. It does not appear that this
document was offered at the hearing and, thus, we may not consider it herein. See Croft v.
Unemployment Comp. Bd. of Review, 662 A.2d 24 (Pa. Cmwlth. 1995). However, because we
remand this matter for an additional hearing for the reasons explained herein, we note that Claimant
may wish to offer that document, which is a printout of the Department’s own website, during the
hearing on remand.
3
29, 2015 to October 10, 2015. On December 30, 2015, the UCBR mailed Claimant a
Notice of Hearing scheduling a Referee hearing for January 12, 2016 to address the
following issues: (1) “[w]hether [Claimant] filed a timely and valid appeal from the
initial determination[;]” and, (2) “[w]hether [C]laimant complied with the
requirements for active search for suitable employment. . . .” Notice of Hearing,
December 30, 2015.
At the January 12, 2016 Referee hearing, the Referee stated:
This hearing arises as the result of an Appeal filed by the
Claimant to the Determination of the Service Center issued
on July 13, 2015 which denied benefits to the Claimant for
the week ending July 4th, 2015 under Section 401(b)(1)(i) of
the Law. The last [day] to file a timely Appeal was July
28th, 2015. The Claimant mailed his Appeal on December
24th, 2015. This hearing is being conducted to consider
whether the Claimant filed a valid and timely Appeal from
the initial Determination and this is under Section 501(e) of
the Law.[5]
O.R. Item No. 12, Notes of Testimony (N.T.) at 1-2. Claimant testified: “The
confusion with [the July 13, 2015 Determination] was that at the time of receiving
that I was not getting [UC benefits].” N.T. at 3. Claimant explained:
What happened was when I filed I did receive in the mail [a
handbook from the Department]. I did receive then a phone
call from [the UC Service Center] telling me that because of
my severance pay I was not eligible for . . . [UC benefits],
and that I will have to wait until . . . the end of August to
reopen my [c]laim. . . . We will talk to you at the end of the
[s]ummer when you reopen your [c]laim. Now in that
period between May 29th and the end of August, I actually
received a letter telling me I have to get online and register
with Job Gateway. Even though I wasn’t receiving any
benefits from Pennsylvania at that point, I went online and
created an identification and registered.
5
43 P.S. § 821(e) (relating to time for appeal).
4
N.T. at 3-4. Thereafter, the following exchange occurred between Claimant and the
Referee (R):
R[:] So then there is a question of filing an [a]ppeal now. If
you have already registered and the record indicates that . . .
C[laimant:] But that was the . . . whole premise of this
confusion is that so at the end of August 29th I reopened my
Claim with [the Department]. That’s when they said I can
go and I could reopen my [c]laim. But in the interim, I
already created an identification on Job Gateway even
though I was not collecting any [UC benefits].
R[:] So you finally registered on September 29, 2015.
C[laimant:] No. That’s a second identification. I
originally registered in July. I have two identifications on
Job Gateway. This was the problem. So before I even
collected any money, anything from [UC], okay, I already
had two identifications in Job Gateway and it wasn’t until
CareerLink in Tannersville and [an employee] had actually,
[sic] kind enough to go in and look at both of these profiles
and contact Harrisburg and notify Harrisburg [sic] I was
indeed in there twice, and they have to take both of these
accounts and merge them into one account. Now numerous
phone calls that I’ve made to [the Department] asking
where are my benefits . . .
R[:] Sir, that’s – please do not go there. . . .
....
R[:] Why did you delay appealing the [July 13, 2015
Decision]?
C[laimant:] July 13th, I was not collecting at that point.
R[:] So even if you were not collecting, you were told that
you had to file, right?
C[laimant:] Correct.
R[:] To register?
C[laimant:] Which I did.
5
R[:] When?
C[laimant:] On July the 17th was my first filing in the
system, and I wasn’t even . . . receiving anything from
Pennsylvania at that point[,] but I still went online and I
created my identity.
R[:] Okay.
C[laimant:] . . . . [T]hey kept on telling me I was not
registered. And I was telling them I not only am registered,
but I have two identifications.
....
R[:] . . . . Your ID is not sufficient to complete the whole
registration process, sir. You’re required to go through all
the steps before you do that.
C[laimant:] On Job Gateway?
R[:] On Job Gateway.
C[laimant:] Which I did, which actually gave me an ID
at this point.
R[:] Let me see your Keystone ID Registration Document.
....
R[:] . . . . [Y]ou had to complete the whole process . . . by
July 4th. Show me that document that you had registered
and the registration process was complete.
C[laimant:] But they told me not to, that – okay. On July
4th, I was not eligible for [UC benefits] and I was told by the
Allentown Office . . .
R[:] Okay. So you were not eligible.
C[laimant:] . . . not to go on – they were telling me because
of my severance pay . . . that I should reopen my Claim on
[August 29th]. When I reopened my Claim on [August 29th]
and said well minus the amount of severance given to me
against the payments that . . . I would have received from
[May 29th] forward, they said well . . . you’ve got to file a
late Appeal for that and I said well I don’t understand how I
6
could – why do I have to file the late Appeal. They said
well because I wasn’t registered on Job Gateway. I went
through numerous conversations with Allentown about my
identification and being registered and it wasn’t until
CareerLink physically went in the computer and said there
is a major . . . flaw with my system and the [Department’s]
systems as far as acknowledging you’re on here twice, and I
have got to get Harrisburg involved to merge these accounts
to recognize you as being one person having registered on
Job Gateway before you were even given [UC] benefits.
N.T. at 4-6 (emphasis added).
On January 12, 2016, the Referee dismissed Claimant’s Appeal Petition
(Referee Decision) because “[Claimant] did not provide any evidence to prove that
he had registered twice. The claim record indicates that [Claimant] registered for the
job search services on September 29, 2015.”6 O.R. Item No. 13, Referee Dec. at 2
(emphasis added). Further, the Referee concluded that Claimant’s Appeal Petition
was late-filed because Claimant did not timely appeal from the July 13, 2015
Determination. Claimant appealed to the UCBR.
On February 22, 2016, the UCBR affirmed the Referee’s decision. In its
Determination, the UCBR acknowledged that “[t]here was confusion regarding
[Claimant’s] work registration[,]” but rejected Claimant’s appeal because he did not
provide a “credible explanation as to why he did not timely appeal the July 13, 2015[]
decision.” O.R. Item No. 15, UCBR Order at 1. Claimant filed with the UCBR a
Reconsideration Request postmarked March 18, 2016.7 On March 22, 2016, the
6
Notwithstanding the Referee’s assertion, Claimant did provide evidence of his dual
registrations. Claimant testified that he registered more than once, he explained in detail the
complications that occurred as a result, the steps he took to try to remedy the problem, and he
identified the Department employee who assisted him in resolving the issue. His testimony was not
disputed and was given credence by the UCBR. Thus, it constituted substantial evidence. See,
e.g., Pipeline Sys. v. Workers’ Comp. Appeal Bd. (Pounds), 120 A.3d 397 (Pa. Cmwlth. 2015).
7
Claimant attached to his Reconsideration Request, what appears to be an internal
Department email requesting that Claimant’s multiple UC profile ID Nos. 4408933 and 4396547 be
combined. As explained in footnote 4, supra, we may not consider that document here; however,
Claimant may wish to offer this document into evidence at the hearing on remand.
7
UCBR dismissed the Reconsideration Request as untimely. Claimant appealed to this
Court.8
Claimant contends that his appeal to the UCBR was timely, and that the
UCBR erred in denying him benefits for the period from August 29, 2015 through
October 17, 2015. Specifically, Claimant challenges his disqualification from UC
benefits resulting from the alleged improper application of the July 13, 2015
Determination to his subsequent benefit entitlement.9 Accordingly, rather than
reversal of the July 13, 2015 Determination, Claimant seeks enforcement of the
September 10, 2015 Determination. After realizing that the benefits at issue herein
were not being paid in accordance with the September 10, 2015 Determination,
Claimant engaged in several communications with the Department, attempting to
discern the reason and to prove that he had properly registered with CareerLink as
instructed. Ultimately, Claimant filed the Appeal Petition when he concluded that the
Department would not pay UC benefits for the relevant period. Under the
circumstances, we hold that the UCBR erred by concluding that Claimant was
appealing from the July 13, 2015 Determination and that such appeal was untimely.
8
By March 23, 2016 Notice, this Court preserved March 21, 2016 as the date Claimant filed
his appeal based on “communication [received by the Court] indicating [Claimant’s] intention to
appeal” from the UCBR’s February 22, 2016 Determination. March 23, 2016 Notice at
1. Accordingly, Claimant’s appeal from the February 22, 2016 Determination was timely as it was
filed within 30 days of the UCBR’s Determination. See Pa.R.A.P. 1512(a)(1).
“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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
9
Claimant does not argue that he was entitled to UC benefits prior to his alleged July 17,
2015 registration, nor does he challenge the issuance of the July 13, 2015 Determination, since it
was issued before his July 17, 2015 registration.
8
Accordingly, we vacate the UCBR’s order, and remand this matter to the
UCBR to remand to the Referee for a hearing to determine whether Claimant was
properly disqualified from receiving benefits during the period at issue.10
10
Moreover, in remanding this matter, we note that in Department of Labor & Industry v.
Unemployment Compensation Board of Review, 131 A.3d 597 (Pa. Cmwlth. 2016), this Court
explained:
A failure of a claimant to register timely in accordance with Section
401(b)(1)(i) of the Law is not a per se violation that automatically
disqualifies a claimant from unemployment compensation.
Section 401(b)(6) of the Law provides that ‘[t]he [D]epartment may
waive or alter the requirements of this subsection in cases or
situations with respect to which the secretary finds that compliance
with such requirements would be oppressive or which would be
inconsistent with the purposes of this act.’ 43 P.S. § 801(b)(6). In
Sharpe v. Unemployment Compensation Board of Review (Pa.
Cmwlth.[] No. 431 C.D. 2014, . . . filed October 21, 2014), this Court
addressed the Department’s ability to waive the registration
requirement. We observed as follows:
During the promulgation of the Department’s
regulations implementing Section 401(b) [of the Law],
a commenter asked whether a ‘good cause’ standard
should be incorporated into the [R]egulations. 43 Pa.
B. 4730, 4735 (2013). The Department replied that in
most cases where a ‘good cause’ standard is applied, it
is because it is directed by statute and that it would not
adopt one on its own initiative. Id. However, the
Department noted that, ‘if a claimant’s ‘good cause’
for noncompliance with the regulation also constitutes
a reason why compliance ‘would be oppressive or . . .
inconsistent with the purposes of’ the law, the
claimant’s circumstances could be addressed under the
waiver provision in [S]ection 401(b)(6) of the [L]aw
and [the Regulation Section 65.11(f)(6)].’ Id.
[Sharpe, slip op.] at 6-7. In short, where a claimant can show ‘good
cause’ for not registering on time, the Department may waive the time
requirement of Section 401(b)(1)(i) of the Law.
The Law does not define ‘good cause,’ and our Supreme Court has
established that it ‘must be determined in each case from the facts of
9
For all of the above reasons, the UCBR’s order is vacated and this matter
is remanded for further proceedings consistent with this opinion.
___________________________
ANNE E. COVEY, Judge
that case.’ Barclay White Co. v. Unemployment Comp[.] B[d.] of
Review, . . . 50 A.2d 336, 340 ([Pa.] 1947). In each case, ‘good
cause’ must be ‘so interpreted that the fundamental purpose of the
[Law] shall not be destroyed.’ Id. The central purpose of Section
401(b) of the Law is to require claimants to make ‘an active search for
suitable employment’ while collecting benefits. 43 P.S. § 801(b).
....
[T]he [UCBR] has abandoned the nunc pro tunc standard for
evaluating a waiver of the on-line registration time requirement.
Instead, it argues for a more relaxed standard, noting that not every
claimant can be expected to be ‘computer savvy’ and that a single
keystroke mistake can fail to effect a registration. Further,
registration cannot be done by letter or by phone call. The [UCBR]
rejects the argument of the Office of UC Benefits in favor of a strict
liability standard. The [UCBR] believes, instead, that a case-by-case
examination of ‘good cause’ is appropriate and consistent with the
remedial and humanitarian objectives of the Law, which should not be
frustrated ‘by slavish adherence to technical and artificial rules.’ Lehr
v. Unemployment Comp[.] B[d.] of Review, . . . 625 A.2d 173, 175
([Pa. Cmwlth.] 1993) (quoting Unemployment Comp[.] B[d.] of
Review v. Jolliffe, . . . 379 A.2d 109, 110 ([Pa.] 1977)).
The [UCBR] explains that in on-line registration waiver cases, ‘good
cause’ should be considered in the same way it is used to mitigate
willful misconduct. . . .
....
We agree with the [UCBR]’s case-by-case approach to evaluating
whether a claimant had good cause for failing to timely register for
employment search services under Section 401(b)(1)(i) of the Law, 43
P.S. § 801(b)(1)(i).
Dep’t of Labor & Indus., 131 A.3d at 600-02 (emphasis added; footnotes omitted).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael P. Jakubowicz, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 618 C.D. 2016
Respondent :
ORDER
AND NOW, this 17th day of January, 2017, the Unemployment
Compensation Board of Review’s February 22, 2016 order is vacated and the matter
is remanded for further proceedings consistent with this opinion.
Jurisdiction is relinquished.
___________________________
ANNE E. COVEY, Judge