IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald James Hurlbert, :

Petitioner :

:

v. : No. 1101 C.D. 2019

: SUBMITTED: January 17, 2020

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: March 13, 2020

Donald James Hurlbert (Claimant) petitions for review, pro se, of the July 19, 

2019 Order of the Unemployment Compensation Board of Review (Board) 

affirming the decision of a Referee to deny Claimant’s request to backdate four 

unemployment compensation (UC) claim weeks under Section 401(c) of the

Unemployment Compensation Law (Law)1 and 34 Pa. Code § 65.43a.2 Because we 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 

801(c). Section 401(c) of the Law provides that UC “shall be payable to any employe who is or 

becomes unemployed, and who . . . [h]as made a valid application for benefits with respect to the 

benefit year for which [UC] is claimed and has made a claim for [UC] in the proper manner and 

on the form prescribed by the [D]epartment [of Labor and Industry (Department)].” 43 P.S. § 

801(c).

2 This regulation states in relevant part:

(a) For a week in which a claimant was employed less than his full-time work, the 

claimant shall file a claim for [UC] 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 [UC] is filed in accordance with this subsection precedes the week in which the 
2

conclude that Claimant failed to satisfy the requirements for backdating claim 

weeks, we affirm the Board’s Order.

Background

On February 3, 2019, Claimant filed an application for UC benefits. Bd.’s 

Finding of Fact (F.F.) No. 1. Claimant filed timely claims for UC benefits for claim 

weeks ending February 9, 2019 through March 2, 2019. Id. No. 2.

On April 19, 2019, Claimant filed with the Department a request to backdate

claim weeks ending March 9, 2019, March 16, 2019, March 23, 2019, and March 

30, 2019. Id. No. 3; Record (R.) Item No. 2.3 Claimant’s reason for requesting 

backdating was that he could not file his bi-weekly claims because of health issues 

 

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.

. . . .

(f) If a claimant fails to file a claim for [UC] within the time allowed in subsection 

(a) . . . 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.

34 Pa. Code § 65.43a(a), (f), and (g).

3 On the backdating request form, Claimant stated:

I made it very clear with [the Department] that [I] could not take it. Mentally it was 

too taxing. You may not have been trying[,] but you [g]uys are messing with my 

head. There was a guy that no longer works there that committed fraud against me.

R. Item No. 2 at 2.
3

and because his employer at that time, First Student, Inc. (Employer), erroneously 

informed him that he could return to work with a doctor’s note. Bd.’s F.F. No. 4.

The local UC Service Center denied Claimant’s request to backdate claim 

weeks ending March 9, 2019, March 16, 2019, March 23, 2019, and March 30, 2019

under Section 401(c) of the Law and 34 Pa. Code § 65.43a. The Service Center 

found that Claimant’s proffered reason for requesting backdating was that he could 

not file his bi-weekly claims “due to a personal health issue.” Notice of 

Determination, 2/3/19, at 1. The Service Center determined, however, that

“Claimant’s reason for requesting backdating did not meet the requirements under 

which backdating for a week or weeks of [UC] benefits could be allowed.” Id.

Claimant timely appealed to the Referee. The Referee held a hearing on June 

5, 2019, at which Claimant, acting pro se, testified regarding the circumstances of 

his backdating request.

4

 Following the hearing, the Referee affirmed the Service 

Center’s decision, concluding:

[The r]egulation [at 34 Pa. Code § 65.43a] defines conditions under 

which a claim for a week of [UC] benefits may be backdated. The 

regulation allows up to two weeks of backdating if the claimant fails to 

file a claim for [UC benefits] due to the claimant’s illness or injury. 

The time for filing the claim was extended until the last day of the 

second week after the incapacity in [sic]. [C]laimant testified that he 

has mental health issues that led to his failure to file bi[-]weekly claims 

in a timely manner. [C]laimant did not provide competent 

documentation to prove that he has mental health issues. In this case, 

the [R]eferee finds that [C]laimant has not met the burden of proving 

that circumstances existed that would allow for backdating under [34 

Pa. Code § 65.43a].

Ref.’s Order, 6/13/19, at 4.

 

4 Employer was not notified of the hearing, presumably because Claimant’s separation 

from employment was not at issue. It was purely a backdating issue.
4

Claimant timely appealed to the Board, which adopted and incorporated the 

Referee’s findings of fact and conclusions of law. The Board also made the 

following additional findings based on the evidence of record:

[C]laimant argues that [E]mployer also “advised me erroneously that I 

would have been recalled to work, when the weather improved . . . .” 

At the hearing, [C]laimant testified that [E]mployer told him he could 

come back to work if he could get another doctor’s note, [and C]laimant 

did [so] the following week, but [E]mployer did not accept [the note]. 

[C]laimant has not proven that [E]mployer advised [C]laimant he 

would be guaranteed to be recalled to work within [one] week.

Bd.’s Order, 7/19/19, at 1 (quoting Claimant’s Petition for Appeal) (emphasis 

added). Therefore, the Board affirmed the Referee’s Order. Claimant now petitions 

this Court for review.5

Analysis

On appeal, Claimant asserts that the Board erred in concluding he was not 

entitled to the backdating of the requested claim weeks pursuant to 34 Pa. Code § 

65.43a. In cases involving late-filed claims, the general rule is that a claimant who 

files late is ineligible for UC benefits, unless he or she was misled by UC officials. 

Snipas v. Unemployment Comp. Bd. of Review, 401 A.2d 888, 889 (Pa. Cmwlth. 

1979). Our Court has recognized that “[t]he weekly reporting requirements are 

necessary so that contact between the claimant and the job center is constant and 

regular, whether it be by mail claims or physical reporting, so as to enable the 

unemployed to secure employment promptly if a satisfactory job becomes 

 

5 Our scope of review is limited to determining whether the necessary factual findings are 

supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 

704.
5

available.” Menalis v. Unemployment Comp. Bd. of Review, 712 A.2d 804, 805 (Pa. 

Cmwlth. 1998).

The Department has promulgated regulations setting forth the circumstances 

under which the backdating of claim weeks is permitted. The regulation at 34 Pa. 

Code § 65.43a(a) provides that generally, “[f]or a week in which a claimant was 

employed less than his full time work, the claimant shall file a claim for [UC] 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, this regulation provides several 

exceptions that allow backdating in limited circumstances. See 34 Pa. Code § 

65.43a(b)-(h). The claimant bears the burden of proving that his or her UC 

application satisfies the requirements for backdating. Egreczky v. Unemployment 

Comp. Bd. of Review, 183 A.3d 1102, 1106 (Pa. Cmwlth. 2017).

Before this Court, Claimant asserts that he satisfied the exception in 

subsection (g) of 34 Pa. Code § 65.43a, which states:

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.

34 Pa. Code § 65.43a(g) (emphasis added).

6

 In essence, the record shows that 

Claimant was sent home from work for failing to wear snow cleats while on the job 

as required by Employer. Claimant maintained that the snow cleats caused him pain. 

Employer told Claimant that he could return to work with a doctor’s note excusing 

 

6 Before the Referee and the Board, Claimant also invoked the exception in subsection (f) 

of 34 Pa. Code § 65.43a (relating to illness or injury), claiming that he was entitled to backdating 

due to health issues. However, Claimant has abandoned that exception in his appeal to this Court. 

See Pet. for Review at 1 n.1; Claimant’s Br. at 3.
6

him from wearing the requisite footwear. Claimant contends that he provided two 

doctor’s notes, but Employer did not accept either note.

At the hearing before the Referee, Claimant entered into evidence several 

documents related to his filing of a union grievance in March 2019, stemming from

Claimant’s violation of Employer’s policy regarding snow cleats. On the grievance 

form, dated March 9, 2019, Claimant’s union representative stated, “[Claimant] 

presented doctor excuse regarding use of snow/ice cleats. [Claimant] was told 

excuse not acceptable and sent home until further notice.” Notes of Testimony 

(N.T.), 6/5/19, Ex. C-4. In a March 19, 2019 letter to the union representative 

denying the grievance, Employer’s location manager explained:

[Claimant] believes that because [he] provided a medical note that [he]

would be exempted from wearing required safety equipment. 

All First Student locations require shoe cleats when the weather and 

ground conditions have snow and ice. The number one cause of injury 

and death in our [c]ompany is slipping/falling. This is a condition of 

employment. [Employer] has the right to establish reasonable work 

rules. This rule is solely to protect employees from injury/harm.

[Claimant] presented a note because the shoe grips cause him “pain”. 

We have offered [Claimant] to wear different shoe cleats. He had 

originally declined this option but during our meeting he appeared to 

be interested in trying new ones. To date we have not heard from him.

Id., Ex. C-2.

Claimant also testified before the Referee that Employer “told me [during] the 

second week of March [2019] that I could come back [to work] if I could get a second

– another doctor’s note. I did so the following week, but they did not accept that
7

[note].” N.T., 6/5/19, at 2.7 He further testified that Employer’s “[m]anager said

that if I get a second doctor’s note, I could come back to work, which I did the 

following week, but I still was not allowed to come back to work for like another 

month or something after that.” Id. at 3. Claimant contends that this evidence 

established that Employer erroneously informed him that he would be recalled to 

work within one week so as to entitle him to backdating under 34 Pa. Code § 

65.43a(g). We find this argument to be without merit. 

We rejected a similar claim in Beck v. Unemployment Compensation Board

of Review (Pa. Cmwlth., No. 459 C.D. 2013, filed September 11, 2013).

8

In Beck, 

the claimant argued that her employer erroneously advised her that she would be 

recalled to work within one week after she provided a doctor’s note stating that she 

could perform her job safely. Slip op. at 9. The “[e]mployer, however, was not

satisfied with this note, and asked her to see [the e]mployer’s doctor as well.” Id. at 

2. In concluding that the claimant was not entitled to backdating, we stated:

[The c]laimant . . . did not present evidence during the hearing before 

the Referee to support her contention on appeal to this Court that [her 

e]mployer promised her that she could return to work within one week 

of providing a doctor’s note clearing her to return to her job. At the 

hearing, [the c]laimant testified that she believed her job would be 

waiting for her after she provided [her e]mployer with a doctor’s note 

stating that she could safely perform her job duties. But [the c]laimant 

did not testify that [the e]mployer advised her that she could return to 

 

7 The second doctor’s note, dated March 20, 2019, stated, “[Claimant] has no acute issues 

that would prevent him from wearing these shoes.” N.T., 6/5/19, at 3 & Ex. C-1.

8 We cite Beck for its persuasive authority, as it is the only case we have found specifically 

applying the exception in 34 Pa. Code § 65.43a(g). See Cmwlth. Ct. Internal Operating Procedure 

§ 414(a), 210 Pa. Code § 69.414(a) (stating that an unreported panel decision of this Court, issued 

after January 15, 2008, may be cited for its persuasive value only).
8

work within one week. Thus, the Board did not err in not backdating

[the c]laimant’s application under [34 Pa. Code §] 65.43a(g).

Id. at 9 (emphasis added).

Likewise, in this case, Claimant offered no testimony that Employer 

specifically advised him that he could return to work within one week, as required 

by 34 Pa. Code § 65.43a(g). Rather, Claimant’s testimony merely established that 

Employer informed him that he needed a doctor’s note to return to work. N.T., 

6/5/19, at 2. As such, the Board correctly determined that “[C]laimant has not 

proven that [E]mployer advised [C]laimant he would be guaranteed to be recalled to 

work within [one] week.” Bd.’s Order, 7/19/19, at 1.

Furthermore, in his appeal to the Board, Claimant asserted, for the first time,

that Employer originally told him that he “would have been recalled to work[] when 

the weather improved,” but then “my boss added on March 14[, 2019] that I would 

not have been allowed back to work without a doctor’s note.” R. Item No. 9. 

Claimant stated that the weather improved one week later, but Employer did not 

recall him to work until mid-April 2019. Id. Thus, by Claimant’s own admission, 

Employer did not tell Claimant that he would be recalled to work within one week, 

but rather “when the weather improved.” Bd.’s Order, 7/19/19, at 1 (emphasis 

added).

9

 Therefore, we agree with the Board that Claimant failed to satisfy the 

exception in 34 Pa. Code § 65.43a(g).

Conclusion

We conclude, based on the evidence of record, that Claimant failed to prove 

that he was entitled to the backdating of claim weeks ending March 9, 2019, March 

 

9 At the Referee’s hearing, Claimant offered no testimony or evidence that the weather had 

actually improved within one week of Employer’s alleged statement, nor did the Board make such 

a finding.
9

16, 2019, March 23, 2019, and March 30, 2019. Accordingly, we affirm the Board’s 

Order.

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald James Hurlbert, :

Petitioner :

:

v. : No. 1101 C.D. 2019

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 13th day of March, 2020, the July 19, 2019 Order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

__________________________________

ELLEN CEISLER, Judge