§ 65.1. Definitions.

 In addition to the terms defined in §  61.1 (relating to definitions), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Agent state—A state in which an individual files a claim for benefits from another state.

   Benefits—Compensation payable to an individual with respect to the individual employment, under the unemployment insurance law of a state.

   Interstate Benefit Payment Plan—The plan approved by the Interstate Conference of Employment Security Agencies, under which benefits are payable to unemployed individuals absent from the state in which benefit credits have been accumulated.

   Interstate claimant—An individual who claims benefits under the unemployment insurance law of one or more liable states through the facilities of an agent state. The term does not include an individual who customarily commutes from a residence in an agent state to work in a liable state unless the Bureau finds that this exclusion would create undue hardship on the claimants in specified areas.

   Liable state—A state against which an individual files, through another state, a claim for benefits.

   Registered for work—When a claimant has appeared at a regularly established public employment office and has completed and signed an Application for Benefits, Form UC-42; and when, upon request, he has furnished that office with the accepted title for the occupations at which he is usually employed.

   Registration for work—When an individual has appeared in person at a public employment office and has furnished that office with his name, usual occupation and correct post office address and has declared his availability for suitable work.

   State—The term includes Puerto Rico, the Virgin Islands and the District of Columbia.

   Week of unemployment—Any week of unemployment as defined in the law of the liable state from which benefits with respect to the week are claimed.

   The provisions of this §  65.1 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731.

   This section cited in 34 Pa. Code §  65.11 (relating to effective period).

Subchapter B. PREREQUISITES FOR ELIGIBILITY

REGISTRATION FOR WORK

Sec.

 A registration for work created by the actions stated in §  65.1 (relating to definitions) shall continue in effect as follows:

   (1)  For a period of 3 weeks following the date of the valid application for benefits.

   (2)  As long as the claimant continues to file claims for weeks of unemployment ending at intervals of not more than 3 weeks, the first of which claims was for a week ending within the 3 week period following the date of the valid application for benefits.

 (a)  If, during the claim-filing period, commencing with the date of the valid application for benefits, the interval between claims exceeds 3 weeks, the claimant shall renew his registration for work by appearing at a regularly established public employment office and completing and signing a Notice of Registration Renewal and Request for Separation Information, Form UC-45A.

 (b)  The registration for work resulting from a registration renewal shall continue in effect in the same manner and under the same conditions as a registration for work resulting from an application for benefits.

 (a)  Registration renewals may be predated for the same reasons and the same periods of time permitted for an application for benefits, as provided by § §  65.41—65.43 (relating to procedure; date of filing; and places of filing).

 (b)  If an application for benefits, a registration renewal or a claim for a week of unemployment filed by a claimant is predated for any reason given in this subsection, the requirement that the claimant is registered for work will be waived for the number of weeks specified for the applicable reason, or for the total of the specified number of weeks for the applicable reasons where there is a combination of more than one reason and in each instance the term week means the calendar week, Sunday through Saturday, immediately preceding the week, which includes the day on which the application for benefits, registration renewal or claim was actually filed:

   (1)  The inaccessibility of the local public employment office, or the infrequency of the periodic itinerant service established for the area in which the claimant is filing his application or claim, shall permit a waiver of not more than 2 weeks.

   (2)  The closing of an office due to a Sunday or holiday shall permit a waiver of not more than 2 weeks.

   (3)  The inability of the office to take the claimant’s application or claim on the day he reported for that purpose or the postponement of application or claims taken by the office for administrative reasons shall permit a waiver of not more than 6 weeks.

   (4)  The refusal of the office to accept the application or claim as a result of an error or mistake shall permit a waiver of not more than 52 weeks.

   (5)  Pending determination of the eligibility of similarly situated employes under section 402(d) of the law (43 P. S. §  802(d)) if the application or claim is filed within 6 weeks after the determination has become final.

   (6)  The claimant’s failure to file an application for benefits or registration renewal due to erroneous advice by his employer that he would be recalled to work within 1 week shall permit a waiver for not more than 2 weeks.

   (7)  The claimant’s failure to file a claim for a week of unemployment due to sickness of the claimant, a sickness or death of another member of the claimant’s family, or an act of God shall permit a waiver for not more than 2 weeks.

   (8)  The claimant’s failure to file a claim for a week of unemployment if the claimant became employed shall permit a waiver for not more than 4 weeks.

   (9)  If the claimant files for a week of partial unemployment a waiver for that week shall be permitted regardless of when the claim is actually filed.

 (c)  The period of time during which the registration for work is waived may not exceed the period of time by which the application for benefits, registration renewal or claim, was predated, nor may the effective date of the registration for work be a day previous to the date of the application for benefits, registration renewal or the first day of a week of unemployment with respect to which a claim is filed.

 Nothing in this subchapter shall be construed to prevent the Department from requiring of a claimant additional information with respect to his work history and occupational aptitudes in a manner and on forms which it may require.

 A claimant, filing claims in another state under the section 312 of the law (43 P. S. §  792), will be considered to have registered for work when he has complied with the registration for work requirements of the state in which he is filing his claim. Registration for work shall continue in effect for the length of time provided by the laws, regulations and procedures of the state in which he is filing his claim.

   The provisions of this §  65.15 adopted July 1, 1969.

OFFERS OF SUITABLE WORK

§ 65.21. Disqualification for benefits.

 In accordance with the provisions of section 402(a) of the law (43 P. S. §  802), an employe shall be ineligible for benefits for any week in which he is unemployed because he has refused without good cause an offer for suitable work made either by the local public employment office or by an employer who notifies the employment office within 7 working days of his offer to the potential employe.

   The provisions of this §  65.21 adopted July 1, 1969; amended December 20, 1974, effective December 21, 1974, 4 Pa.B. 2567. Immediately preceding text appears at serial page (9311).

   Good Cause

   When the employe of a temporary employment agency did not report for her assigned work because she mistakenly believed that the assigned work had been cancelled, she did not have ‘‘good cause’’ for not reporting where she did not call the employment agency to make sure that the assignment had indeed been cancelled. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).

   Notification by Employer

   It is error to grant compensation to an applicant merely because an employer did not properly notify the Bureau of an employe’s failure to accept a work assignment. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).

 (a)  With respect to offers of suitable work made by an employer, the following rules apply:

   (1)  A work offer may be considered as suitable irrespective of whether the work is in employment as defined in sections 4 and 402(a) of the law (43 P. S. § §  753 and 802(a)).

   (2)  The notification shall be made to the local public employment office at which the employe has filed or may file an application for benefits or a registration renewal.

   (3)  The offer to the employe may be in writing in which case a carbon copy or an exact duplicate shall be furnished to the employment office within 7 working days after the mailing of the offer. If the employer’s offer is not made in writing, as, for example, where it is made by telephone, the employer shall provide the employment office with a detailed written description of the offer within 7 working days after the making thereof. Regardless of the manner in which the offer is communicated to the employe, it shall include all of the following:

     (i)   The rate of pay and unit of work or period of time which the rate represents.

     (ii)   The scheduled working hours during each day of the week.

     (iii)   The location of the work.

     (iv)   A description of the duties or a generally recognized term covering the duties.

     (v)   An unusual requirement or condition of work.

 (b)  Where the employer who makes the offer has employed the employe after the beginning of the employe’s base year and, in his offer of employment to the employe, states that the conditions of the job are substantially the same as those under which the employe last worked for the employer, the requirements enumerated in subsection (a) are not required to be included.

 (c)  If the job offered the employe is covered under a labor-management agreement and a statement to this effect is made in the offer of employment, no further description will be required.

 (d)  It will be the responsibility of the Department, before issuing a decision on a claim for benefits, to determine on the basis of facts whether the work offer was suitable within the meaning of section 4(t) of the law (43 P. S. §  753(t)).

   The provisions of this §  65.22 adopted July 1, 1969; amended December 20, 1974, effective December 21, 1974, 4 Pa.B. 2567. Immediately preceding text appears at serial pages (9311) and (13479).

   Work Offer

   It is error to grant compensation to an applicant merely because an employer did not properly notify the Bureau of the failure of an employe to accept a work assignment. MacDonald v. Unemployment Compensation Board of Review, 333 A.2d 199 (Pa. Cmwlth. 1975).

   After the Board determines that an offer of suitable employment was refused, it is without authority, absent a showing of prejudice, to grant compensation merely because the form of the notice of an offer of work by a claimant’s prior employer was defective. General Motors Corp. v. Unemployment Compensation Board of Review, 322 A.2d 762 (Pa. Cmwlth. 1974).

Subchapter C. APPLICATION PROCEDURE

CLAIMS FOR COMPENSATION

Sec.

§ 65.31. Filing.

 Claims for compensation shall be filed personally by the claimant on official forms available for that purpose at local public employment offices, Monday through Friday, unless closed due to a holiday or by official pronouncement.

   The provisions of this §  65.31 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended July 13, 1973, effective July 14, 1973, 3 Pa.B. 1309. Immediately preceding text appears at serial page (9312).

   Because the unemployment compensation claimant’s backdating of an application for unemployment benefits could not be justified on the basis that the employer misrepresented about eligibility for benefits, claimant’s application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).

 (a)  The week of unemployment with respect to which a claim is filed shall be the calendar week preceding the week which includes the day on which the claim is actually or constructively filed; except that those individuals who are filing claims for compensation for a period of unemployment which began prior to the effective date of this section shall continue to file claims for weeks of any 7 consecutive days for as long as that period of unemployment continues and they are otherwise eligible.

 (b)  Notwithstanding the provisions contained in this section, the local offices shall insure that claimants be scheduled to report for the purpose of processing the first compensable week of their application on the first local office work day possible within the applicable time limits of this section regardless of the last digit of their Social Security number. Thereafter, claimants may be rescheduled in accordance with the digit reporting schedule.

   The provisions of this §  65.32 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended July 13, 1973, effective July 14, 1973, 3 Pa.B. 1309. Immediately preceding text appears at serial pages (9313) to (9314).

   Reporting Requirements

   A claimant has not complied with the reporting requirements if he is aware of the reporting requirements but only visits the local office informally and irregularly and merely keeps a friend who works at the office apprised of his situation on an informal basis. Zinicola v. Unemployment Compensation Board of Review, 407 A.2d 474 (Pa. Cmwlth. 1979).

   Timeliness

 (a)  A claim for a week of total, partial or part-total unemployment may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented, through no fault of his own, from filing his claims during the week immediately subsequent to the week for which the claim is filed because of one or more of the following reasons:

   (1)  The inability of the local public employment office to handle currently all claims, or the postponement of claims-taking by the local office for administrative reasons shall permit not more than 6 weeks of predating.

   (2)  The inaccessibility of the office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant resides shall permit not more than 2 weeks of predating.

   (3)  The closing of an office due to a holiday or by official pronouncement shall permit not more than 2 weeks of predating.

   (4)  The refusal of an office to accept a claim as a result of an error or mistake shall permit not more than 52 weeks of predating.

   (5)  Sickness or death of another member of the claimant’s immediate family or an act of God shall permit not more than 2 weeks of predating, provided the claimant was available for work during the week for which the claim is being filed.

   (6)  Illness or injury which incapacitates the claimant shall permit predating for the duration of the incapacitation plus 2 weeks but in no instance for more than 52 weeks, provided the claimant meets the eligibility requirements during the week for which the claim is being filed.

   (7)  If the claimant is employed not more than 4 weeks of predating shall be permitted. Where a claimant is filing claims for partial or part-total benefits not more than 4 weeks predating shall be permitted, commencing with the date on which the employer paid wages for the claim week in question.

   (8)  An appeal of a claimant from disqualification may permit not more than 4 weeks of predating while the appeal is pending.

 (b)  When a combination of more than one of the reasons outlined in subsection (a) has prevented the claimant from filing a claim and adherence to the most liberal limitation applicable to his case would be inequitable to the claimant, the predating provisions for applicable reasons shall be added and predating to the number of weeks which is equal to the sum of all applicable limitations shall be permitted.

 (c)  A claim for a week of total or part-total unemployment may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed, when a determination of the eligibility of similarly situated employes under section 402(d) of the law (43 P. S. §  802(d)) is pending, provided that the claim is filed within 6 weeks after the determination has become final.

   The provisions of this §  65.33 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581; amended July 25, 1975, effective July 26, 1975, 5 Pa.B. 1920. Immediately preceding text appears at serial pages (19128) to (19129).

   Conflict

   A conflicting appointment with an employment counselor is not an acceptable reason for not reporting a claim for a week, especially since the applicant could have kept the appointment with the counselor as well as her scheduled appointment at the offices of the Bureau some other time of that day. Seibert v. Unemployment Compensation Board of Review, 403 A.2d 1369 (Pa. Cmwlth. 1979).

   Delay

   Claimant was not entitled to 2 weeks of predating pursuant to subsection (a)(5) of this section following the death of claimant’s father, because the regulation gives claimants only a 2-week reprieve to take care of family matters, and did not excuse claimant’s 5-month failure to file for benefits. Ascheim v. Unemployment Compensation Board of Review, 694 A.2d 4 (Pa. Cmwlth. 1997).

   Misrepresentation by Employment Office

   Claimant failed to meet his burden of showing that he was misled or prevented from filing claims for the weeks at issue, where he admitted that he received and read the unemployment compensation handbook which sets forth the reporting requirements, he assumed on his own that he was no longer eligible for benefits due to the receipt of a pension, and there was no evidence or testimony that anyone connected to the Job Center prevented the claimant from filing claims. Menalis v. Unemployment Compensation Bd. of Review, 712 A.2d 804 (Pa. Cmwlth. 1998).

   Because an unemployment compensation claimant’s backdating of an application for unemployment benefits could not be justified on the basis that the employer made misrepresentations about eligibility for benefits, claimant’s application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).

 An employe shall be ineligible for compensation for any week with respect to which or a part of which he has received or is seeking compensation under the provisions of an unemployment compensation law of any other state or of the United States. If it is finally determined that he is not entitled to compensation for the week this disqualification does not apply.

   The provisions of this §  65.35 adopted July 1, 1969; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731.

APPLICATION FOR BENEFITS

§ 65.41. Procedure.

 (a)  Applications for benefits shall be filed on Form UC-42 in local public employment offices, Monday through Friday, unless closed due to a holiday or by official pronouncement.

 (b)  Claimants reporting to file new applications for benefits shall be served and their claims processed on the day they report, or are scheduled to report, regardless of the last digit of their Social Security numbers, unless it is factually determined that rescheduling, within applicable time limits of this section, is deemed necessary by the local office manager for administrative reasons.

 (c)  An application for benefits may be deemed to be constructively filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed when, in the opinion of the Bureau, the claimant was prevented or persuaded, through no fault of his own, from filing the application because of one of the following reasons; and in each instance the term week or weeks means the calendar week or weeks, Sunday through Saturday.

   (1)  The inaccessibility of the local public employment office in isolated areas, or the infrequency of the periodic itinerant service established for the area in which the claimant is filing an application shall permit not more than 2 weeks of predating.

   (2)  The closing of an office due to a holiday or by official pronouncement may permit not more than 2 weeks of predating.

   (3)  The inability of an office to take the claimant’s application on the day on which he reported for the purpose, or the postponement of application taken by the office for administrative reasons may permit not more than 6 weeks of predating.

   (4)  Erroneous advice by his employer that he would be recalled to work within 1 week may permit not more than 2 weeks of predating.

   (5)  The refusal of the office to accept the application as a result of an error or mistake shall permit not more than 52 weeks of predating.

 (d)  Notwithstanding the criteria set forth in this section establishing maximum time limitations to and reasons for backdating an application for benefits, and for the purpose of insuring prompt adjudication of each application, the local employment office shall schedule or reschedule claimants, regardless of the last digit of their Social Security numbers, to report on the first local office work day possible within the applicable time limits of this section following the day on which their failure or inability to report was due to a reason specified in this section.

 (e)  An application for benefits may be deemed to be filed as of the first day of a calendar week previous to the week which includes the day on which it is actually filed, when a determination of the eligibility of similarly situated employes under section 402(d) of the law (43 P. S. §  802(d)) is pending, provided that the application is filed within 6 weeks after the determination has become final.

   The provisions of this §  65.41 adopted July 1, 1969; amended October 22, 1971, effective October 23, 1971, 1 Pa.B. 2016; amended September 15, 1972, effective September 16, 1972, 2 Pa.B. 1731; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581; amended July 25, 1975, effective July 26, 1975, 5 Pa.B. 1920. Immediately preceding text appears at serial pages (15238) to (15239).

   Backdating

   Where the claimant was misled when job center personnel failed to provide him with the standard notice of the approaching end of his benefit year, it was error not to permit backdating of the claimant’s renewal application. Russell v. Unemployment Compensation Review Board, 812 A.2d 780 (Pa. Cmwlth. 2002).

   Because the unemployment compensation claimant’s backdating of an application for unemployment benefits could not be justified on the basis that the employer misrepresented about eligibility for benefits, claimant’s application was considered untimely. Mitchelree v. Unemployment Compensation Board of Review, 635 A.2d 701 (Pa. Cmwlth. 1993).

   A claimant’s application for Trade Readjustment Assistance (TRA) benefits may not be backdated more than 52 weeks due to misinformation by a State employe unless the misinformation constitutes gross negligence or fraud. Sturni v. Unemployment Compensation Board of Review, 625 A.2d 727 (Pa. Cmwlth. 1993).

   Claimant was not misled by OES in regard to proper reporting requirements and she could not rely on a backdating of an application for benefits. Strichko v. Unemployment Compensation Board of Review, 547 A.2d 496 (Pa. Cmwlth. 1988).

   The failure of §  65.41 to permit predating for incapacitation due to illness or injury is not violative of section 3 of the Unemployment Compensation Law (43 P. S. §  752). Edwards v. Unemployment Compensation Board of Review, 426 A.2d 237 (Pa. Cmwlth. 1981).

   Predating

   Section 65.41(c)(5) bars recovery in the absence of the Bureau’s gross negligence or willful and wanton misrepresentation amounting to fraud. Kear v. Unemployment Compensation Board of Review, 397 A.2d 468 (Pa. Cmwlth. 1979).

   Reporting Requirements

   A conflicting appointment with an employment counselor is not an acceptable reason for not reporting a claim for a week, especially since the applicant could have kept the appointment with the counselor as well as her scheduled appointment at the Bureau’s offices some other time of that day. Seibert v. Unemployment Compensation Board of Review, 403 A.2d 1369 (Pa. Cmwlth. 1979).

   Validity

   Section 65.41(c)(5) is neither unreasonable nor inconsistent with the purposes of the Unemployment Compensation Law. Kear v. Unemployment Compensation Board of Review, 397 A.2d 468 (Pa. Cmwlth. 1979).

 (a)  Notwithstanding the provisions of §  65.41(b) (relating to procedure) an application for benefits shall be deemed to be filed as of the first day of any week for which a claim is filed for compensation for partial unemployment within the time limits prescribed under §  65.33 (relating to predating), if the claimant has not previously established a benefit year applicable to that week.

 (b)  A claim for a week of total or part-total unemployment may not be filed with respect to an application for benefits which is prior to the first day of the week which includes the day on which the application for benefits is actually filed, except within the time limits prescribed in §  65.41(b) and (c).

   The provisions of this §  65.42 adopted July 1, 1969; amended March 29, 1974, effective March 30, 1974, 4 Pa.B. 581. Immediately preceding text appears at serial page (13484).

 Notwithstanding the provisions of this chapter that applications for benefits, claims and work registrations shall be filed at local public employment offices, the Bureau may accept applications for benefits, claims and work registration at any other places which may be advisable and expedient.

   The provisions of this §  65.43 adopted July 1, 1969.

   Places

   The provisions of §  65.43 authorize the Bureau to provide for receiving applications and registrations in places other than public employment offices, but do not empower a claimant to determine where his weekly reporting and filing are to be done or which public employment office he will use for that purpose. Regoli v. Unemployment Compensation Board of Review, 427 A.2d 1275 (Pa. Cmwlth. 1981).

 A base-year employer or last employer, who, under the provisions of section 501(c) of the law (43 P. S. §  821(c)), desires to raise a question as to the eligibility of a claimant, may do so only in writing delivered to the local public employment office indicated on the form by which he has been notified that the claimant has filed an application for benefits.

   The provisions of this §  65.55 adopted July 1, 1969; reserved September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (27684).

DECISIONS AND DISQUALIFICATIONS

§ 65.61. Opportunity for refutations.

 The Bureau will not issue a decision invalidating a claim until the claimant has been given an opportunity to refute any alleged facts or circumstances which are being considered as a basis for invalidating his claim.

 (a)  A claimant who has been determined ineligible for compensation under section 402(a) of the law (43 P. S. §  802(2)) shall remain ineligible for compensation until he obtains subsequent employment which is not of a temporary or casual nature.

 (b)  When a claimant has been declared ineligible because of a refusal of temporary or casual employment, the ineligibility shall continue only for the period of time that work would have been furnished.

 (c)  A claimant who has been determined ineligible for compensation under the provisions of section 3 of the law (43 P. S. §  752) shall remain ineligible until he has earned, subsequent to the separation from work which was disqualifying under such section, remuneration for services in an amount equal to or in excess of six times his weekly benefit amount.

   The provisions of this §  65.62 adopted July 1, 1969; amended June 11, 1976, effective June 12, 1976, 6 Pa.B. 1329. Immediately preceding text appears at serial page (9318).

   Temporary Employment

   The limitation on ineligibility provided by subsection (b) applies to claimants who refuse temporary or casual employment opportunities, and does not confer eligibility upon employes disqualified as a matter of law under section 402(b). Awarding this claimant benefits would be advocating a system under which any employe could quit employment and still be eligible to receive compensation benefits by establishing a future departure date despite leaving employment in advance of that date. Thus, a law student who knowingly enters into a temporary part-time employment arrangement with a law firm, voluntarily leaves that employment prior to the end of the specified period to study for exams, fails to request extension of the letter agreement or to seek regular full-time employment with the law firm upon graduation, does not fall within the class of employes the legislature intended to protect. Evans v. Unemployment Compensation Board of Review, 665 A.2d 548 (Pa. Cmwlth. 1995).

   Employe who refuses to report to an interview for temporary employment because the employe was only interested in permanent employment has, without good cause, failed to pursue a referral of suitable employment and, under subsection (b), is ineligible to receive unemployment benefits for the entire period of time such temporary work would have been furnished. Raffaele v. Unemployment Compensation Board of Review, 465 A.2d 85 (Pa. Cmwlth. 1983).

   Voluntary Termination

 Appeals filed under the provisions of section 501(e) of the law (43 P. S. §  821(e)) and further appeals filed under the provisions of section 502 of the law (43 P. S. §  822) shall be filed through the local public employment office at which the claimant has filed his application or claim with respect to which the appeal is taken. Appeals and further appeals shall be in writing and shall state the reasons for the appeal.

   The provisions of this §  65.63 adopted July 1, 1969.

   This section cited in 34 Pa. Code §  63.23 (relating to unacceptable reasons).

Subchapter D. PARTIAL UNEMPLOYMENT AND DECEASED OR INCOMPETENT CLAIMANTS

Sec.

§ 65.71. Compensation for partial unemployment.

 (a)  In determining the amount of compensation to which an eligible claimant is entitled for a week of partial unemployment which has caused the claimant a loss of earnings, due either to lack of work or unavailability for work, the Bureau shall estimate the amount of earnings which the claimant would have earned had he been actually employed during that week.

 (b)  Compensation for the week shall be made in an amount equal to the weekly benefit rate of the claimant, less the sum of the estimated amount of his earnings and his actual earnings for the week, to the extent that the payments are in excess of partial benefit credit of the claimant.

 (c)  In estimating the amount of earnings which a claimant would have received for the hours during which he was unavailable for work the Bureau shall prorate his actual hourly earnings for the week, unless some other method of estimation would be fairer and more reasonable.

 (a)  Payment of unemployment compensation benefits due a deceased claimant may be made without letters of administration on the estate of the decedent, in the following order:

   (1)  The surviving spouse.

   (2)  The surviving child or children.

   (3)  The surviving parents.

   (4)  The eldest surviving brother or sister.

   (5)  A person who is not a relative, having an interest in the estate.

 (b)  Payments of unemployment compensation benefits due a claimant who has been declared incompetent shall be made to his legal guardian.

 (c)  Application for payment of benefits under the provisions of this section shall be made on a form and in a manner which shall be prescribed by the Department.

   The provisions of this §  65.85 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (9322).

Subchapter E. ELIGIBILITY IN CONJUNCTION WITH
OTHER PAYMENTS

VACATION PAY

§ 65.91. Type of pay.

 (a)  Whether a payment constitutes vacation pay for purposes of this subchapter shall depend on the purpose for which it is in fact paid or payable rather than the label which may have been given to the payment or to the fund from which it is paid. Unemployment compensation may not be used to finance vacations.

 (b)  When a plant or department-wide period is granted for vacation and vacation pay is payable to an individual, he may not claim the period is a layoff for him due to lack of work and that his vacation pay should be assignable to some other period, so as to obtain unemployment compensation for one vacation with vacation pay from the employer for another.

 (c)  The Superior Court has, in effect, held that where the employer of the claimant has designated or approved a vacation period for him, other than the general vacation shutdown, any vacation pay he receives shall first be allocated to the special vacation period the employer has designated or approved for him.

 (d)  Apart from section 404 of the law (43 P. S. §  804), claimant may not meet the employment tests of eligibility for unemployment compensation while he is actually taking a vacation from work.

 In determining the eligibility of a claimant to whom vacation pay is paid or payable, it shall be considered immaterial whether the vacation pay is paid directly by an employer or through some other person or organization, so long as it originates from employer payments. The principles stated in this section shall also apply whether or not the vacation pay is legally required to be paid. It shall be the responsibility of any employer who provides for vacation pay for his employes to notify the Department in writing of this fact.

 Unemployment compensation otherwise payable to an individual with respect to any week shall be reduced by the amount of vacation pay which is in excess of the claimant’s partial benefit credit paid or payable to him with respect to all or any part of a vacation period included within that week. Thus, an employe is not rendered totally ineligible by the receipt of vacation pay, but only to the extent of the amount of vacation pay, which is in excess of his partial benefit credit, that he receives with respect to that period.

 For the purposes of this subchapter, the term ‘‘vacation period’’ means the following:

   (1)  A period designated or approved by the claimant’s employer as his vacation.

   (2)  The period of any plant-wide or departmental closing for vacation except to the extent that the employer of the claimant has granted him a separate vacation period in substitution, in whole or in part, for the general shutdown.

   The provisions of this §  65.94 adopted July 1, 1969.

   Vacation Period

   Because there is a presumption of eligibility attached to involuntarily unemployed claimants, and to effectuate the legislative intent underlaying the definition and application of ‘‘credit week’’ as a condition of eligibility, every week of vacation time, scheduled or unscheduled, earned during a base year must be allocated as a ‘‘credit week.’’ Poola v. Unemployment Compensation Board of Review, 555 A.2d 97 (Pa. 1989).

   A temporary employer shutdown was properly allocated as a vacation period; and, therefore, claimant was not entitled to collect unemployment despite claimant’s contention that the employer’s decision to shut down was merely a negotiating strategy. Appel v. Unemployment Compensation Board of Review, 556 A.2d 973 (Pa. Cmwlth. 1989).

 (a)  Vacation pay shall be deemed to have been paid with respect to the vacation period irrespective of the time it is actually received by the claimant if it is for the calendar year in which the vacation period occurs.

 (b)  If, at the time of the vacation period, the claimant, due to insufficient service, has not yet established entitlement to vacation pay but will later accumulate the necessary amount of service, and if the claimant or his bargaining agent has not agreed to the particular time of the vacation period, the vacation pay may not be allocated to the vacation period.

 The Department shall determine the number of days or weeks of the vacation period to which the vacation pay shall be applied by dividing the total amount of vacation pay by the regular full-time daily or weekly wage of the claimant. When the allocation of the payment is made on the basis of the number of days, the payment shall be apportioned to the customary working days in the calendar week.

   The provisions of this §  65.96 adopted July 1, 1969.

   Calculation

   Unemployment compensation Board was not able to reapportion yearly vacation pay between two periods since it had already made a finding of fact that excess earnings made in a particular month were allocable only to that month and as such the Board would be requesting an alternative factual finding unsupported by substantial evidence. LaSota v. Unemployment Compensation Board of Review, 547 A.2d 865 (Pa. Cmwlth. 1988).

RETIREMENT PENSIONS AND ANNUITIES

§ 65.101. Purpose.

 (a)  In accordance with section 404(d)(2) of the law (43 P. S. §  804(d)(2)), section 402(c) of the Internal Revenue Code of 1986 (26 U.S.C.A. §  402(c)) and section 3304(a)(15) of the Federal Unemployment Tax Act (FUTA) (26 U.S.C.A. §  3304(a)(15)), the Department has promulgated regulations governing the deduction of certain pension payments from unemployment compensation benefits (UC benefits).

 (b)  The Department has balanced the interests of employes and employers of this Commonwealth, consistent with the law. The Department seeks to maximize the Commonwealth’s share of competitive employment in a global economy, thereby serving the needs of all Pennsylvanians by reducing the number of unemployed individuals and ensuring that UC benefits are available to those who need and are entitled to them.

 (c)  For any week with respect to which a claimant is receiving certain pension payments, the Department will deduct from the weekly compensation otherwise payable to the claimant the prorated weekly amount of those pension payments which fulfill the prerequisites for deductibility specified in this chapter.

 (a)  Unless otherwise excluded from deductibility under this chapter, any pension payment received by a claimant with respect to a week for which the claimant receives unemployment compensation (UC) benefits shall be deducted from the weekly benefit amount otherwise payable to the claimant for that week.

 (b)  Deductible pensions include a governmental or other pension, retirement or retired pay, annuity or any other similar periodic payment which is made under a plan maintained or contributed to by the claimant’s base period or chargeable employer and is based on the claimant’s previous work.

 (c)  Similar periodic payments shall include all deductible pension payments made on other than a weekly basis which shall be prorated into a weekly amount before being deducted from the weekly benefit amount payable to the claimant.

 (d)  The Department will deduct all Social Security retirement pensions which are based upon the claimant’s previous work or self-employment, or both, including primary Social Security, old age and retirement disability benefits.

   (1)  The Department will not deduct Social Security payments which are not based on the claimant’s previous work, such as Supplemental Security Income.

   (2)  The Department will deduct pensions paid under the Social Security Act (42 U.S.C.A. § §  301—1397e) and the Railroad Retirement Act (45 U.S.C.A. § §  231—231s) when the claimant’s base year employer contributed to the pension plan. The pensions are deductible irrespective of whether the claimant’s base year employment affected the eligibility for, or increased the amount of, the pension.

 (e)  If the pension is entirely contributed to by the employer, 100% of the prorated weekly amount of the pension will be deducted from the weekly benefit amount payable to the claimant.

 (f)  If the pension is contributed to by the individual, in any amount, 50% of the prorated weekly amount of the pension will be deducted from the weekly benefit amount payable to the claimant.

 (g)  The weekly benefit amount payable to the claimant will not be reduced below zero by the prorated weekly amount of the pension.

 (h)  For any week with respect to which the claimant is not receiving but is eligible for a pension, the Department will not deduct the prorated weekly amount of the pension from the weekly benefit amount payable to the claimant.

 (i)  If, as a result of the claimant’s ineligibility to receive a pension payment under a pension plan, the claimant receives a payment which represents only a return of the claimant’s own contributions to the plan and does not include any contribution from a base period or chargeable employer, the payment is not a pension and will not be deducted from the weekly benefit amount payable to the claimant.

 (j)  The Department will not deduct pension payments if the services performed by the individual during the base period or the remuneration received for those services from a base period or chargeable employer did not affect the individual’s eligibility for, or increase the amount of, the pension, except for pensions paid under the Social Security Act and the Railroad Retirement Act.

 (k)  The Department will not deduct periodic payments which are made under severance agreements, profit sharing arrangements or disability plans administered by a union, employer, workers’ compensation carrier, insurance company or the Veterans Administration, unless the payments are based on retirement and fulfill all other prerequisites specified in this chapter.

 (l)  The Department will not deduct lump sum pension payments which represent the transfer of ‘‘eligible rollover distributions’’ from a ‘‘qualified trust’’ to an ‘‘eligible retirement plan,’’ as those terms are defined in section 402(c) of the Internal Revenue Code (IRC) (26 U.S.C.A. §  402(c)).

   (1)  If all of the requirements of section 402(c) of the IRC are met, including the transfer of the payments into an ‘‘eligible retirement plan’’ within 60 days of receipt by the individual, those payments do not represent a payment to the individual for the purposes of retirement and are not received by the individual under section 404(d) of the law (43 P. S. §  804(d)) and section 3304(a)(15) of the Federal Unemployment Tax Act (26 U.S.C.A. §  3304(a)(15)) (FUTA).

   (2)  If a distribution, or any part thereof, does not meet the requirements of section 402(c) of the IRC, the Department will deduct the prorated weekly amount of that portion of the lump sum payment which is received by the claimant in accordance with §  65.108 (relating to rules of attribution).

   (3)  If a claimant does not roll over the entire lump sum into an eligible retirement plan, as set forth in paragraph (1), the Department will determine the amount to be deducted from the claimant’s weekly benefit amount by dividing the amount of the lump sum payment that is received by the claimant by the total amount the claimant could have received had the claimant opted to take the entire lump sum available to the claimant. That quotient represents the deductible share of the lump sum pension amount received by the claimant. The claimant’s unreduced monthly pension is the amount the claimant could have received each month had the claimant opted to take periodic payments in lieu of a lump sum. The Department will calculate the deductible portion of that unreduced monthly amount by multiplying it by the quotient representing the deductible share of the lump sum which is received by the claimant. Using the deductible amount of that monthly pension, the Department will compute the prorated weekly deductible amount in accordance with §  65.108.

   (4)  If a claimant presents documented proof to the Department that the claimant has rolled over a portion of a deductible lump sum payment into an eligible retirement plan within 60 days, so that all or some of that lump sum payment is not subject to Federal Income Tax, the Department will credit the claimant for any amount deducted from the claimant’s UC benefits which is properly exempt from deduction because it is attributable to the transfer of the funds into an eligible retirement plan.

   The provisions of this §  65.102 adopted July 1, 1969; amended November 8, 1974, effective November 9, 1974, 4 Pa.B. 2358; amended September 3, 1976, effective September 4, 1976, 6 Pa.B. 2107; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial page (224421).

   Excluded Contributions

   Employer’s temporary disability salary continuation plan, fully paid and maintained by the employer, was specifically excluded as a deduction by this regulation. York Cable Television, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 270 (Pa. Cmwlth. 1995).

   The provisions of this §  65.103 adopted July 1, 1969; amended September 3, 1976, effective September 4, 1976, 6 Pa.B. 2107; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 21. Immediately preceding text appears at serial pages (224421) to (224423).

   Benefit Eligibility

   Claimant was not entitled to benefits based upon assertion that claimant retired due to ‘‘impending layoff’’ when claimant did so after attaining maximum pension benefit amount. Boyle v. Unemployment Compensation Board of Review, 566 A.2d 1259 (Pa. Cmwlth. 1989).

   Normal Retirement Date

   This regulation makes no mention of a normal retirement date determination. Therefore, when the employer makes an offer of full pension rights to an employee to retire, and the employee accepts such an offer, a finding of when the ‘‘normal retirement date’’ occurs is not necessary to the application of the statute or regulation. Dannerth v. Unemployment Compensation Board of Review, 682 A.2d 55 (Pa. Cmwlth. 1996).

   Offset of Benefits

   Exemption did not apply to unemployment compensation claimants because they were eligible to retire under their employer’s retirement plan at the time the plant closed regardless of the special plant closing retirement plan; in order for the exemption to apply, the claimant must be permanently and involuntarily separated from employment prior to his retirement date. Hornsberger v. Unemployment Compensation Board of Review, 718 A.2d 359 (Pa. Cmwlth. 1998); appeal denied by 758 A.2d 1203 (Pa. 1999).

   Unemployment compensation benefits are reduced by the amount of pension moneys paid by an employer to an employe who has elected to retire under an enhanced retirement program. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 36 (Pa. Cmwlth. 1996).

   The Unemployment Compensation Board properly determined that the employe received a pension of $494 per week and that this pension was entirely contributed to by the employer and because the employe’s weekly pension exceeded the calculated weekly benefit rate of $340, the unemployment benefits were reduced to zero. Kelly v. Unemployment Compensation Board of Review, 682 A.2d 29 (Pa. Cmwlth. 1996).

   When the employe accepted the plan which permitted retirement at age 50, that age then became for the employe the age of retirement and the employe was therefore not separated from employment prior to the retirement date. Since the employe was not separated from employment, however voluntarily or involuntarily, ‘‘prior to retirement date,’’ the regulatory exception to the rule of pension offset does not apply. The plain language of the excepting regulation requires that an employe be separated prior to retirement date, and, because the employe was not so separated, pension benefits could be deducted from the unemployment benefits. Dannerth v. Unemployment Compensation Board of Review, 682 A.2d 55 (Pa. Cmwlth. 1996).

   Claimant reached the actual retirement date. The age at which claimant may have intended to retire, the offer of an enhancement plan that actually enabled claimant’s earlier retirement without penalty, claimant’s preference for delaying retirement in order to receive a larger pension, as well as other circumstances pertaining to ‘‘normal’’ retirement age, are not part of the relevant inquiry under this regulation. Therefore, claimant’s pension could be deducted from any unemployment compensation which claimant would otherwise be entitled to receive. Salerno, Jr. v. Unemployment Compensation Board of Review, 674 A.2d 776 (Pa. Cmwlth. 1996).

   Although Claimant neither intended to retire nor considered self to be retired, at the time of separation claimant was admittedly eligible to retire under employer’s plan and was eligible to receive pension money without penalty. Contrary to claimant’s assertions, claimant’s eligibility to retire was determinative, and the Unemployment Compensation Board correctly applied 43 Pa.C.S. §  804(d)(2) to determine claimant’s weekly benefit rate by reducing the benefit amount from monthly retirement income even though claimant took retirement benefits in a lump sum payment. Rathvon v. Unemployment Compensation Board of Review, 663 A.2d 893 (Pa. Cmwlth. 1995).

   This section was not inconsistent with Unemployment Compensation Law (43 P. S. §  804(d)(2)) or Multiemployer Pension Plan Amendments Act of 1980 (26 U.S.C.A. §  3304(a)(15)) even though it did not allow for the offset of retirement benefits against unemployment benefits in certain cases involving liquidation of pension benefits as a result of plant closings. Teledyne Columbia-Summerill Carnegie v. Unemployment Compensation Board of Review, 634 A.2d 665 (Pa. Cmwlth. 1993).

   Unemployment compensation claimants who were separated from employment prior to retirement due to a plant closing were entitled to receive unemployment compensation without a deduction for pension benefits because this section was designed to protect a worker from the devastating effects of a plant closing. Westinghouse Electric Corp. v. Unemployment Compensation Board of Review, 549 A.2d 623 (Pa. Cmwlth. 1988).

   Retirement benefits paid to an employe separated from employment due to a plant closing before employe reaches retirement age are not deducted from unemployment compensation. Westinghouse v. Unemployment Compensation Board of Review, 561 A.2d 80 (Pa. Cmwlth. 1989).

   Separation

   Claimant was not permanently and involuntarily separated from employment prior to retirement date, as claimant was eligible to retire at anytime. The fact that the claimant had no plans to retire at the time of separation was irrelevant. Grace v. Unemployment Compensation Board of Review, 631 A.2d 748 (Pa. Cmwlth. 1993).

   Separation

 (a)  When, following the retirement of an employe and, as part of a general pension plan, an initial payment is made in lieu of or in addition to the regular pension amount to which the employe is entitled, the initial payment will be considered a pension payment, and will be subject to this chapter.

 (b)  Initial payments are independent of regular pension payments. To the extent that they meet the requirements for deductibility provided in this chapter, the Department will deduct them from compensation otherwise payable to a claimant even if the claimant’s regular pension payments are not deductible. The Department will not deduct initial payments if they do not meet the requirements for deductibility provided in this chapter, even if the claimant’s regular pension payments are deductible.

 (c)  When the initial payment includes an amount paid for any reason other than pension, including unused vacation, only that amount which is attributable to the pension is deductible.

 (d)  When the initial pension payment is received by a claimant in a lump-sum, the deduction of this initial pension amount will be calculated by dividing the initial pension amount by the number of weeks for which the pension plan specifies the initial payment is being made. The number of weeks attributable to unused vacation or other payments will not be used in determining the weekly pension amount to be deducted. The result of this calculation, if not a multiple of 1 dollar, will be computed to the next higher multiple of 1 dollar and will be considered the prorated weekly deductible amount of the initial payment and is the amount by which the weekly benefit rate will be reduced, but not below zero.

 (a)  When a claimant receives a lump-sum payment in lieu of a periodic pension payment, the prorated weekly pension amount which the employe could have received will be deducted in accordance with §  65.108 (relating to rules of attribution).

 (b)  When a claimant cannot receive periodic pension payments and must take a mandatory lump-sum payment, no pension deduction will be made.

 (c)  When a claimant receives a deductible lump sum payment and transfers only a portion of that payment into an eligible retirement plan within 60 days of receipt, the remainder of the lump sum payment which is not transferred into an eligible retirement plan will be deducted, along with any other deductible pension payments made to the claimant under §  65.102 (relating to application of the deduction) and §  65.108.

 If a pension, retirement, annuity or other similar periodic payment deductible under section 404(d)(2) of the law (43 P. S. §  804(d)(2)) is received on other than a weekly basis, the amount to be deducted will be prorated as follows: The claimant’s monthly pension is the amount the claimant could have received each month had the claimant opted to take periodic payments in lieu of a lump sum. The Department will use the deductible amount of that monthly pension, convert it to a yearly amount, and divide by 52. If not a multiple of one dollar, the Department will determine the prorated weekly deductible amount of the pension by rounding to the next higher multiple of one dollar. The weekly benefit amount payable to the claimant will be reduced, but not below zero, by the prorated weekly deductible amount of the pension, in accordance with section 404(d)(2) of the law.

   The provisions of this §  65.108 adopted January 2, 1998, effective January 3, 1998, 28 Pa.B. 21.

   This section cited in 34 Pa. Code §  65.102 (relating to application of the deduction); and 34 Pa. Code §  65.105 (relating to lump-sum retirement payments).

Subchapter F. COMPUTATIONS

DETERMINATION OF WEEKLY BENEFIT RATE

Sec.

§ 65.111. Benefit table.

 (a)  The table specified for the determination of rate and amount of benefits, as provided in Appendix A, shall be extended or contracted annually as prescribed in section 404(e)(2) of the law (43 P. S. §  804(e)(2)) as follows:

   (1)  The total number of persons in covered employment reported by employers to the Department for the 12-month period ending June 30 is divided by 12 and rounded to the nearest unit to produce the average monthly number of covered workers.

   (2)  The total amount of covered wages reported by employers to the Department—irrespective of the limit on the amount of wages subject to employer contributions—for the 12-month period ending June 30 is then divided by the monthly number of covered workers. The result is rounded to the nearest cent to produce the average annual wage.

   (3)  The average annual wage is then divided by 52, rounding to the nearest cent, to produce the average weekly wage.

   (4)  The average weekly wage is then multiplied by 2 and the product is divided by 3. The result becomes the maximum weekly benefit rate. If the result is not a whole dollar amount, it shall be rounded to the next higher multiple of $1.

 (b)  The amount of qualifying wages set forth in the benefit table for the highest quarterly wage, not the base year wages of the employe, shall be subject to section 401(a) of the law (43 P. S. §  801(a)).

 (c)  The Secretary shall annually submit the table specified for the determination of rate and amount of benefits to the Legislative Reference Bureau for suggested publication as a notice in the Pennsylvania Bulletin under 45 Pa.C.S. §  725(a)(6) (relating to additional contents of the Pennsylvania Bulletin) and for suggested codification in the Pennsylvania Code, as Appendix A, under 45 Pa.C.S. §  702(7) (relating to contents of the Pennsylvania Code).

   The provisions of this §  65.111 issued under sections 201(a) and 404(e)(2) of the Unemployment Compensation Law (43 P. S. § §  761(a) and 804(e)(2)).

   The provisions of this §  65.111 adopted December 17, 1971, effective December 18, 1971, 1 Pa.B. 2319; corrected December 24, 1971, effective January 1, 1972, 1 Pa.B. 2346; amended December 15, 1972, effective January 1, 1973, 2 Pa.B. 2327; amended December 15, 1973, effective January 1, 1974, 3 Pa.B. 2817; amended December 20, 1974, effective 30 days subsequent to final approval of act of December 5, 1974, 4 Pa.B. 2568; amended December 19, 1975, effective January 4, 1976, 5 Pa.B. 3272; amended December 17, 1976, effective January 2, 1977, 6 Pa.B. 3113; amended December 17, 1977, effective January 1, 1978, 7 Pa.B. 3784; amended December 30, 1978, effective January 1, 1979, 8 Pa.B. 3812; amended December 22, 1979, effective January 1, 1980, 9 Pa.B. 4168; amended December 25, 1981, effective January 1, 1982, 11 Pa.B. 4439; amended December 31, 1982, effective January 1, 1983, 13 Pa.B. 17; corrected January 21, 1983, effective January 1, 1983, 13 Pa.B. 522; amended December 30, 1983, effective January 1, 1984, 13 Pa.B. 4013; amended December 28, 1984, effective December 29, 1984, 14 Pa.B. 4688; amended December 28, 1984, effective January 1, 1985, 14 Pa.B. 4719; amended January 3, 1985, effective January 1, 1986, 15 Pa.B. 50; amended December 26, 1986, effective January 1, 1987, 16 Pa.B. 5004; amended December 25, 1987, effective January 1, 1988, 17 Pa.B. 5359; amended December 23, 1988, effective January 1, 1989, 18 Pa. B. 5675; amended December 22, 1989, effective January 1, 1990, 19 Pa.B. 5467. Immediately preceding text appears at serial page (134103) to (134108).

 (a)  When it is necessary, under the provisions of section 404(e)(2) of the law (43 P. S. §  804(e)(2)), to extend the table specified in §  65.111 (relating to benefit table) and Appendix A for the determination of rates and amounts of benefits, it shall be done as follows:

   (1)  The words ‘‘or more’’ shall be deleted from the last line under Part A of Appendix A, and an amount $24 greater than the first entry in that line shall be substituted therefor.

   (2)  Part A shall be extended as much as necessary by adding $25 to each amount of the preceding line. At the point where the entry in Part B equals 64 2/3% of the average weekly wage, the first entry in Part A shall consist of an amount $25 greater than the smaller amount in the preceding line, and the words ‘‘or more’’ shall be added.

   (3)  Part B of Appendix A shall be extended in increments of $1.00 until that point is reached where the amount is equal to 64 2/3% of the average weekly wage.

   (4)  Part C of Appendix A shall be extended in increments of $40 to the point where, under Part B of Appendix A, the amount is equal to 64 2/3% of the average weekly wage.

   (5)  Part D of Appendix A shall be extended in increments of $30 to the point where, under Part B of Appendix A, the amount is equal to 64 2/3% of the average weekly wage.

 (b)  When it is necessary to contract the table specified for the determination of rates and amounts of benefits, it shall be done by deleting all lines following that in which the amount in Part B is 64 2/3 % of the average weekly wage and substituting the words ‘‘or more’’ for the higher amount under Part A in that line.

 (c)  The percent stated in subsections (a) and (b) for establishing the maximum weekly benefit rate shall be 64 2/3 % for calendar year 1975, and 66 2/3% for calendar year 1976 and for subsequent calendar years.

 (a)  It is an objective of the Pennsylvania Unemployment Compensation Program that an unemployed, eligible claimant shall be compensated for at least 50% of his weekly wage loss, subject to the maximum weekly benefit rate fixed by law.

 (b)  Prior to 1955, computation of the weekly benefit rate of the claimant was based exclusively upon his weekly earnings during that calendar quarter of his base year in which he has the greatest amount of wages in covered employment.

 (c)  When a claimant has experienced irregular or short term employment in his base year, the high quarter formula of subsection (b) has occasionally failed to compensate the claimant at the rate of 50% of his weekly wage. Section 404(a) of the law (43 P. S. §  804(a)) remedies this condition effective with benefit years commencing on or after May 1, 1955, to provide an alternate formula for computing a claimant’s compensation rate, that is 50% of his full-time weekly wage, whichever is greater.

   The provisions of this §  65.113 adopted July 1, 1969.

   Weekly Wage

   Claimants employed as intermittent intake interviewers by the Office of Employment Security were entitled to receive benefits at 50% of their weekly wage, since, when working, they never worked less hours per week than a full-time work week. Brennan v. Unemployment Compensation Board of Review, 484 A.2d 430 (Pa. Cmwlth. 1984).

   The high quarter formula, in most instances, yields a weekly benefit rate which is equal to or in excess of 50% of the full-time weekly wage of the claimant. Since the Department is in possession of the wage records of the claimant required for this computation, and since additional information not of record is required for determining his full-time weekly wage, the Department, for the purpose of practicable administration and in order to avoid delay in the payment of benefits, shall apply the following rules in determining the claimant’s weekly benefit rate under the provisions of this subchapter:

   (1)  A weekly benefit rate, computed on the basis of the claimant’s high quarter wages in accordance with Part A and Part B of Appendix A, shall be the rate on which his compensation rights shall be initially determined for any benefit year, unless it is found on the basis of employment experience in the claimant’s base year that 50% of his full-time weekly wage exceeds his weekly benefit rate as established by the high quarter formula, in which event his weekly benefit rate shall be 50% of his full-time weekly wage.

   (2)  An employe who is employed in an occupation in which the remuneration is based solely on commission with no fixed or guaranteed minimum, or an employe hired as a contingent or extra employe, or one hired for less than the full-time work week of the establishment, shall be deemed not to have a full-time weekly wage on the basis of that employment.

   (3)  The application of these rules shall in no way prejudice the right of a claimant whose base-year wages are insufficient to qualify him for compensation at the rate thus determined to receive compensation at a lower rate in accordance with section 404(a)(3) and (c) of the law (43 P. S. §  804(a)(3) and (c)).

   Invalid

   This section was held invalid because it excludes from the benefits of the optional calculation method allowed by 43 P. S. §  804(a)(1) a category of employes which was intended to be included, and because it is inconsistent with the broad humanitarian purpose and the language of the Unemployment Compensation Law. Brennan v. Unemployment Compensation Board of Review, 484 A.2d 430 (Pa. Cmwlth. 1984).

   Weekly Wage

 The full-time weekly wage of an employe shall be that wage which an employe would receive if he were employed for a full-time week of not less than 5 full work days, and shall be ascertained as follows:

   (1)  In all cases, the wages paid by the employer from whom the claimant earned the greatest amount of wages in his base year, as shown on the Notice of Financial Determination (Form UC-44F), shall be used as the basis for ascertaining the full-time weekly wage. If the claimant was paid at more than one wage rate based upon a unit of time by the employer, the wage rate at which he earned the greatest amount of wages in his base year shall be used.

   (2)  In all cases, the full-time weekly wage shall be computed to the nearest dollar.

   (3)  If the wages are fixed by the week, the amount so fixed shall be the full-time weekly wage.

   (4)  If the wages are fixed by the month, the full-time weekly wage shall be the monthly wage so fixed, multiplied by 12 and divided by 52.

   (5)  If the wages are fixed by the year, the full-time weekly wage shall be the yearly wage so fixed, divided by 52.

   (6)  If the wages are fixed by the day, the full-time weekly wage shall be the daily wage rate multiplied by not less than five.

   (7)  If the wages are fixed by the hour, the full-time weekly wage shall be the hourly wage rate multiplied by the regularly scheduled number of hours in a full-time work day, and the result multiplied by not less than five.

   (8)  If the wages are fixed on a piece rate or tonnage basis, the full-time weekly wage shall be determined as follows:

   (9)  Wages earned in the calendar quarter in which the claimant’s earnings were the greatest in his base year shall be divided by the actual number of hours worked for the wages to establish the average hourly rate. The average hourly rate thus obtained shall be multiplied by the regularly scheduled number of hours in a full-time work day and the result multiplied by not less than five.

   (10)  If the wages are fixed on a combination of an hourly wage rate plus a piece work or tonnage rate, the full-time weekly wage shall be determined by the piece rate method, as explained in this section.

 (a)  If, at the time the claimant files his initial application for benefits, a full-time weekly wage can be established, subject to verification, it shall be indicated on the initial application of the claimant. The weekly benefit rate for these applications shall be computed on the basis of the highest quarterly wages in accordance with Part A and Part B of Appendix A, or 50% of the full-time weekly wage, whichever is greater.

 (b)  If, at the time the claimant files his initial application for benefits, a full-time weekly wage cannot be established, the weekly benefit rate shall be computed solely on the basis of the high quarter formula. Upon receipt of the Notice of Financial Determination (Form UC-44F), the local office shall determine if there is a substantial basis for a weekly benefit rate determination based on full-time weekly wage. This determination may be made at the time of the waiting week or at the time of the benefit rights interview. For these cases the local office shall initiate whatever actions are required to obtain necessary wage information upon which to establish the full-time weekly wage.

 (a)  For the purpose of appeals filed by employers the date of decision with respect to determination of the weekly benefit rate of a claimant shall be the date on which the Notice of Financial Determination (Form UC-44F) indicating the weekly benefit rate was mailed to the employer.

 (b)  For the purpose of appeals filed by claimants the date of the decision shall be the date on which the Notice of Financial Determination (Form UC-44F) indicating the weekly benefit rate was personally delivered to him.

 (c)  In order to avoid multiplicity of appeals, whenever, pending an appeal, an issue arises as to the weekly benefit rate the issue shall be determined by the Department and submitted to the appropriate appellate tribunal for inclusion in the pending appellate proceedings and decision thereon.

   The provisions of this §  65.117 adopted July 1, 1969.

WEEKLY NET EARNINGS IN SIDELINE SELF-EMPLOYMENT

§ 65.121. Computation of weekly net earnings.

 (a)  Since an accurate determination of weekly net earnings for a particular week or month will usually be impossible because of the time lapse between the performance of services and the receipt of resulting income. Weekly net earnings for a current calendar year shall be based on net earnings in a previous calendar year or on anticipated earnings in the current calendar year, if operations were not conducted in a previous calendar year, in accordance with the following:

   (1)  For a claimant engaged in farming, ‘‘gross income’’ from sales and services shall be reduced by subtraction of expenses for labor, feed, seeds and plants, fertilizer and lime.

   (2)  For a claimant engaged in a business other than farming, ‘‘gross income’’ from sales and services shall be reduced by subtraction of the cost, if any, of goods sold. Cost of goods sold shall include the total cost of merchandise, cost of labor and cost of material and supplies.

   (3)  The remainder shall be divided by the number of weeks during which the farm or business operated or will operate during a year. The quotient shall represent the weekly net earnings to be used for the purpose of computing benefits payable.

 (b)  Weekly net earnings computed in accordance with subsection (a) applies throughout the benefit year for as long as the business operates in the benefit year.

   Net Earnings

   The provisions of 34 Pa. Code §  65.121 provide only for the deduction of labor and material costs from gross income in computing the net earnings of a single sideline business; nothing suggests that losses from failing sideline ventures may be deducted from profits of successful sideline businesses in computing weekly income from sideline activities. Frederick v. Unemployment Compensation Board of Review, 423 A.2d 801 (Pa. Cmwlth. 1980).

 When seasonal businesses are involved, weekly net earnings computed in accordance with §  65.113 (relating to computation of weekly wage) apply to any weeks in the benefit year during which the business normally operates.

 Application of computed weekly net earnings apply whether or not a benefit year overlaps a calendar year.

   The provisions of this §  65.123 adopted July 1, 1969.

Subchapter G. INTERSTATE CLAIMS

COMPENSATION TO INTERSTATE CLAIMANTS

Sec.

§ 65.131. Registration for work.

 (a)  Each interstate claimant shall be registered for work through a public employment office in the agent state, when and as required by the law, regulations and procedures of the agent state. The registration shall be accepted as meeting the registration requirements of the liable state.

 (b)  Each agent state shall report to the liable state in question whether each interstate claimant meets the registration requirements of the agent state.

 (a)  If a claimant files a claim against a state, and it is determined by the state that the claimant has available benefit credits in that state, then claims shall be filed only against that state as long as benefit credits are available in that state. Thereafter, the claimant may file claims against any other state in which there are available benefit credits.

 (b)  Benefit rights of interstate claimants established by this subchapter apply only with respect to new claims (notices of unemployment) filed on or after July 5, 1953.

 (a)  For the purposes of this subchapter, benefit credit shall be deemed to be unavailable whenever benefits have been exhausted, terminated or postponed either for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

 (b)  Benefit rights of interstate claimants established by this subchapter apply only to new claims, that is, notices of unemployment filed on or after July 5, 1953.

 Claims for benefits or waiting-period credit shall be filed by interstate claimants on uniform interstate claim forms and in accordance with uniform procedures developed pursuant to the interstate benefit payment plan. Claims shall be filed in accordance with the type of week in use in the agent state. Adjustments required to fit the type of week used by the liable state shall be made by the liable state on the basis of consecutive claims filed.

 (a)  Claims shall be filed in accordance with agent-state regulations for intrastate claims in local employment offices, or at an itinerant point.

 (b)  With respect to claims for weeks of unemployment in which an individual was not working for his regular employer, the liable state shall, under circumstances which it considers good cause, accept a continued claim filed up to one week, or one reporting period, late. If a claimant files more than one reporting period late, an initial claim shall be used to begin a claim series and no continued claim for a past period shall be accepted.

 (c)  With respect to weeks of unemployment during which an individual is attached to his regular employer, the liable state shall accept any claim which is filed within the time limit applicable to the claims under the law of the agent state.

 (a)  The agent state shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable state in question facts relating to the claimant’s availability for work and eligibility for benefits as are readily determinable in and by the agent state.

 (b)  The responsibility and authority of the agent state in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent state may not refuse to take an interstate claim.

 (a)  The agent state shall afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims.

 (b)  With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date when it is received by any qualified officer of the agent state.

 This subchapter applies to claims taken in and for Canada.

   The provisions of this §  65.142 adopted July 1, 1969; reserved August 23, 1974, effective August 24, 1974, 4 Pa.B. 1779. Immediately preceding text appears at serial page (14339).

Subchapter H. ALLOWANCES FOR DEPENDENTS

Sec.

§ 65.151. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Dependent child—An individual’s unmarried child, stepchild, legally adopted child or illegitimate child, who at the beginning of the individual’s current benefit year, was wholly or chiefly supported by the individual and was 17 years of age or younger, or if 18 years of age or older, because of physical or mental infirmity was unable to engage in a gainful occupation.

   Dependent spouse—An individual’s lawful husband or wife who is living in the same household and who is being wholly or chiefly supported by the individual at the beginning of such individual’s benefit year.

   Wholly or chiefly supported—The dependent is receiving more than 1/2 of the cost of his support from the individual.

 This subchapter is intended to effectuate those provisions of the law which deal with the payment of an allowance for dependents to eligible claimants for unemployment compensation.

 The amount of allowance for dependents as computed at the time of the application for benefits shall remain fixed for the duration of the claimant’s benefit year, except in instances of error in the original determination.

 Dependent’s allowance shall be paid for valid claim weeks whether full or partial weekly benefit amount is payable. The number of payments shall be limited to 30 under section 404(e)(3) of the law (43 P. S. §  804(e)(3)), and the number of payments shall be limited to nine under section 405A of the Law (43 P. S. §  815).

 In the event a claimant does not have a dependent spouse, a $5 allowance shall be payable for the first dependent child, plus $3 for one other dependent child, if any.

 (a)  Allowances for dependents are not chargeable to the reserve accounts of employers.

 (b)  If a reserve account for an employer subject to this act is not authorized or not required to be maintained under criteria established in the law, allowances for dependents shall be subject to a reimbursement as follows:

   (1)  The Unemployment Compensation Fund shall be reimbursed for dependent’s allowance paid as a result of State employment under section 1001 of the law (43 P. S. §  891). Reimbursement will be made in accordance with section 1003 of the law (43 P. S. §  893).

   (2)  The Unemployment Compensation Fund will be reimbursed for dependent’s allowance paid as a result of service in the employ of a reimbursable nonprofit organization as defined under section 1101 of the law (43 P. S. §  901). Charges will be made to the employer’s account in accordance with section 1108 of the law (43 P. S. §  908). Reimbursement will be made in accordance with section 1106 of the law (43 P. S. §  906).

   (3)  The Unemployment Compensation Fund will be reimbursed based upon the percent of charge for dependent’s allowance paid on a combined wage claim. The transferring state’s reimbursement shall be in accordance with arrangements entered into under section 312 of the law (43 P. S. §  792).

 The terms and conditions of the law which apply to claims for and payment of regular compensation apply to claims for and payment of extended compensation under Article IV-A of the law (43 P. S. § §  811—818), except that a claimant otherwise eligible for extended benefits under Article IV-A of the law is not subject to the terms and conditions of the following provisions:

   (1)  To have worked and earned requalifying wages between benefit years as required by section 4(w)(2) of the law (43 P. S. §  753(w)(2)).

   (2)  To meet the monetary requirements specified by section 401(a) of the law (43 P. S. §  801(a)).

   The provisions of this §  65.157 adopted October 22, 1971, effective October 23, 1971, 1 Pa.B. 2017; amended March 2, 1973, effective March 3, 1973, 3 Pa.B. 484; amended September 17, 1976, effective September 18, 1976, 6 Pa.B. 2279. Immediately preceding text appears at serial page (15242).

Subchapter I. BENEFITS BASED ON SERVICE FOR
EDUCATIONAL INSTITUTIONS

Sec.

 (a)  For purposes of section 402.1 of the law (43 P. S. §  802.1), a contract or reasonable assurance that an individual will perform services in the second academic period exists only if both of the following conditions are met:

   (1)  The educational institution or educational service agency provides a bona fide offer of employment for the second academic period to the individual.

   (2)  The economic terms and conditions of the employment offered to the individual for the second academic period are not substantially less than the terms and conditions of the individual’s employment in the first academic period.

 (b)  For the purposes of subsection (a), an offer of employment is not bona fide if both of the following conditions exist:

   (1)  The educational institution or educational service agency does not control the circumstances under which the individual would be employed.

   (2)  The educational institution or educational service agency cannot provide evidence that the individual or similarly situated individuals normally perform services in the second academic period.

 (c)  For the purposes of subsection (a), economic terms and conditions of employment include wages, benefits and hours of work.

   Substitute Teacher Not Eligible for Unemployment Benefits

   School District sought review of order of Unemployment Compensation Board of Review that found substitute teacher eligible for unemployment compensation benefits; even though substitute teacher enjoyed several long-term assignments, district’s offer of per diem employment was the same as previous school year’s offer and therefore, terms and conditions were not substantially less precluding eligibility for unemployment benefits. Carlynton School District v. Unemployment Compensation Board, 929 A.2d 680, 684 (Pa. Cmwlth. 2007)

   Teacher Unemployed During Break Not Entitled to Unemployment Benefits

   A teacher who is unemployed during a break between academic terms and has a reasonable assurance of employment in the next term is not entitled to unemployment compensation when the employer provided a bona fide offer of employment for the second term, with economic terms and conditions not substantially less than those provided in the first term. Glassmire v. Unemployment Compensation Board of Review, 856 A.2d 269, 273 (Pa. Cmwlth. 2004).

APPENDIX A

Part A
Highest	Part B	Part C
Quar