Opinion
No. 1089 C.D. 2012 No. 1090 C.D. 2012 No. 1091 C.D. 2012 No. 1092 C.D. 2012 No. 1093 C.D. 2012 No. 1094 C.D. 2012
03-27-2013
Peter Gakuba, Petitioner v. Unemployment Compensation Board of Review, Respondent
OPINION NOT REPORTED
MEMORANDUM OPINION
Peter Gakuba (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) May 15, 2012 orders vacating the Referee's decision and finding Claimant ineligible for unemployment compensation (UC) benefits under Sections 4(w)(2) and 401 of the Unemployment Compensation Law (Law), with non-fault and non-fraud overpayments. Claimant presents five issues for this Court's review: (1) whether the Referee abused his discretion by precluding Claimant's witness and counsel, John J. Curtis (Curtis), from participating at the hearing; (2) whether Claimant's constitutional rights were violated by the Referee's preclusion of Curtis from participating at the hearing; (3) whether the UCBR's finding that Claimant was self-employed is supported by substantial evidence; (4) whether the UCBR erred by finding that Claimant's documentary proof of employment in January 2009 was insufficient; and, (5) whether the UCBR erred by erroneously fabricating the finding that Claimant failed to report wages at the time he applied for UC benefits in February 2009, when the claim was accepted and approved and three years had elapsed. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 753(w)(2), 801. Section 4(w)(2) of the Law provides:
An application for benefits filed after the termination of a preceding benefit year by an individual shall not be considered a Valid Application for Benefits within the meaning of this subsection, unless such individual has, subsequent to the beginning of such preceding benefit year and prior to the filing of such application, worked and earned wages in "employment" as defined in this act in an amount equal to or in excess of six (6) times his weekly benefit rate in effect during such preceding benefit year.
Claimant began receiving emergency UC (EUC) benefits in February 2008, following his employment separation from PPL Corporation of Allentown. Under his 2008 application, he filed for benefits for the weeks ending January 3, 10, 17, 24 and 31, 2009. Claimant did not report having earned any wages during those weeks. When his 2008 benefits were exhausted, Claimant filed a UC claim for state benefits (SB) with the Department of Labor and Industry (Department) effective February 8, 2009. At the time, Claimant informed the Department that he worked for Curtis from January 9 through January 16, 2009 and that he earned six times his weekly benefit amount, as required by Section 4(w)(2) of the Law. In total, during the period at issue here, Claimant made two EUC benefit claims, two UC claims, and this 2009 SB claim.
In 2011, when his 2009 benefits were exhausted, Claimant sought to revert to his 2008 claim. While researching the matter, Stacy Bletz, employment specialist for the Department's Office of UC Benefits' adjudication unit, called UC claims supervisor, Deborah Foy, who said she was concerned that there may be a Section 4(w)(2) issue, because when Claimant completed his February 2009 application, "he had only provided us with the dates of 1/9/2009 through 1/16/2009 as dates of employment and we had just said yes." Certified Record (C.R.) Item 17 at 56. Ms. Foy sent Claimant a Section 4(w)(2) Earnings Between Claims Questionnaire (Code 7) to complete and return to the Erie UC Service Center (UC Service Center) by close of business on October 21, 2011 with "proof of earnings (Pay stubs, W-2, 1099 or Other Documentation)" from February 10, 2008 to February 7, 2009. C.R. Item 17 at 56.
On October 19, 2011, Claimant contacted the Department and discussed with Ms. Bletz why his wages from two years earlier were now at issue. On October 20, 2011, Ms. Bletz explained the situation to Claimant and then supplied him with the relevant sections of the Law, and followed up with an email to Claimant concerning the proof necessary to resolve his Section 4(w)(2) issue. Claimant responded, asking whether verification from Curtis would be helpful, to which Ms. Bletz responded that Curtis could email or fax a letter explaining the terms of Claimant's employment, dates and remuneration, together with cancelled checks or some other payment documentation. That same day, Ms. Bletz received an email purportedly from Curtis in which he said that Claimant worked for him for two months, that he provided copies of the cancelled checks to Claimant for the Department two years earlier, and that he no longer had copies of them. Ms. Bletz responded that she needed the dates of employment and the wages Claimant earned. Curtis did not reply.
On October 21, 2011, Ms. Bletz notified Claimant that she needed the requested information by November 4, 2011, or a determination as to his pending claims would be based solely on available information. Claimant responded that the Department was dilatory in its review of this matter and lost the proof he submitted for 2009 benefits, all of which was holding up his pending matters. He requested copies of the Department's policies and procedures. In a responsive email, Ms. Bletz again explained the policy. Claimant thereafter demanded legal citations and an explanation as to why he was granted benefits in 2009 that are only now being questioned. Also on October 21, 2011, Claimant emailed Ms. Bletz a letter purportedly from Curtis about Claimant's employment.
By November 14, 2011 email, Claimant supplied copies of two checks, each in the amount of $2,000.00, which he claims were deposited into his brokerage account shortly after he received them. On November 15, 2011, the Department was notified that California's taxing authorities had no record of Curtis as a registered employer, nor any record of wages paid under Claimant's name or social security number during the first quarter of 2009.
On December 2, 2011, the UC Service Center issued a notice of determination disapproving Claimant's February 8, 2009 application for benefits for weeks ending February 21 through August 15, 2009 for failure to provide sufficient documentation to prove that he received at least six times his weekly benefit rate in the preceding benefit year as required by Section 4(w)(2) of the Law. The UC Service Center also issued notice of fault benefit overpayment in the amount of $171.00 for weeks ending February 21 and 28, March 7, 14, 21 and 28, April 4, 11 and 18, 2009, because Claimant was Code 7 (under Section 4(w)(2) of the Law)-ineligible for benefits under his February 2009 application. On that same date, the UC Service Center issued notice of fault overpayment in the amount of $247.00 for weeks ending April 25, May 2, 9, 16, 23, and 30, June 6, 13, 20, and 27, and July 4, 11 and 18, 2009, due to his Code 7-ineligibility. The UC Service Center also issued notice of fault overpayment in the amount of $1,116.00 for weeks ending July 25, 2009 and August 1, 2009, due to Claimant's ineligibility, and because there was no legislation to provide funds for those weeks. The UC Service Center issued a notice of fault overpayment in the amount of $38.00 for weeks ending August 8 and 15, 2009 due to Claimant's ineligibility, and because those weeks were payable under the 2008 SB program. By penalty notice also issued by the UC Service Center on December 2, 2011, Claimant was penalized 11 benefit weeks due to the $171.00 fault overpayment. By penalty notice issued by the UC Service Center on December 13, 2011, Claimant was penalized 15 benefit weeks due to the $247.00 fault overpayment.
Also on December 2, 2011, the UC Service Center issued a notice of determination disapproving Claimant's February 10, 2008 application for EUC benefits for weeks ending April 3 through June 5, 2010, since his benefits were exhausted after payment for the week ending March 27, 2010. As a result, the UC Service Center also issued notice of fraud overpayment in the amount of $5,580.00 in emergency benefits Claimant received for weeks ending April 3 through June 5, 2010 because the funds had been exhausted. The UC Service Center issued another notice of fraud overpayment for $250.00 Claimant received under The American Recovery and Reinvestment Act of 2009 and $25.00 in federal additional compensation for each of those weeks to which he was not entitled. The UC Service Center also penalized Claimant 12 benefit weeks due to the $5,580.00 overpayment, since it was due to his failure to provide sufficient proof pursuant to Section 4(w)(2) of the Law. The UC Service Center issued a notice of fraud overpayment of emergency benefits in the amount of $3,906.00 Claimant received for weeks ending September 26 through November 7, 2009, because his 2009 application for benefits was invalid, and no legislation provided payment for those weeks. The UC Service Center issued a notice of fraud overpayment for $175.00 Claimant received under The American Recovery and Reinvestment Act of 2009 and $25.00 in federal additional compensation for weeks ending September 26 through November 7, 2009 to which he was not entitled. The UC Service Center also penalized Claimant 9 benefit weeks due to the $3,906.00 overpayment, since it was due to his failure to provide sufficient proof pursuant to Section 4(w)(2) of the Law.
According to the determination, Claimant applied for UC benefits for weeks ending August 23, 2008 through June 5, 2010. He had received Tier 1, Tier 2, SB, HUP, Tier 3, the 14th week of Tier 2 and Tier 4 under the 2008 application.
Act of February 17, 2009, P.L. 111-5, 123 Stat. 437, as amended, § 2002(f), 26 U.S.C. § 3304 Note.
Again, on December 2, 2011, the UC Service Center issued a notice of determination disapproving Claimant's February 8, 2009 application for benefits for weeks ending August 22 through November 7, 2009 and June 12, 2010 through March 12, 2011 for failure to provide sufficient documentation to prove that he received at least six times his weekly benefit rate in the preceding benefit year as required by Section 4(w)(2) of the Law. The UC Service Center also issued notice of fraud overpayment in the amount of $95.00 in emergency benefits received for weeks ending August 22 through September 19, 2009, because Claimant's February 2009 application was invalid, and the weeks were payable under another program. On that same date, the UC Service Center issued notice of fraud overpayment in the amount of $21,762.00 in EUC benefits received for weeks ending June 12, 2010 through October 16, 2010, because his February 2009 application was invalid, and he was not eligible to be paid on any other UC, EUC or SB claim. The UC Service Center issued notice of fraud overpayment for $21,762.00 in EUC benefits received for weeks ending February 26 through March 12, 2011, because his February 2009 application was invalid. The UC Service Center issued notice of fraud overpayment for $21,762.00 in emergency benefits received for weeks ending October 23, 2010 through February 19, 2011, because his February 2009 application was invalid. The UC Service Center issued a notice of fraud overpayment for $650.00 Claimant received under The American Recovery and Reinvestment Act of 2009 and $25.00 in federal additional compensation for weeks ending June 12, 2010 through October 16, 2010 to which he was not entitled. The UC Service Center issued a notice of fraud overpayment for $650.00 Claimant received under The American Recovery and Reinvestment Act of 2009 and $25.00 in federal additional compensation for weeks ending October 23, 2010 through December 11, 2010 to which he was not entitled. The UC Service Center also penalized Claimant 41 benefit weeks due to the $21,762.00 overpayment, since it was due to his failure to provide sufficient proof pursuant to Section 4(w)(2) of the Law.
Finally, on December 2, 2011, the UC Service Center issued a notice of determination disapproving Claimant's February 8, 2009 application for benefits for weeks ending March 19 through June 11, 2011 on the basis that Claimant exhausted his regular and emergency UC benefits and he was not eligible for benefits under the February 2009 application. The UC Service Center issued a notice of fault overpayment of UC benefits in the amount of $7,068.00 for weeks ending March 19, 2011 through June 11, 2011 to which he was not entitled. Claimant was penalized 15 benefit weeks due to the $7,068.00 overpayment, since it was due to his failure to provide sufficient proof pursuant to Section 4(w)(2) of the Law.
Claimant appealed all of the UC Service Center determinations in the aggregate, on the basis that his February 2009 application was not fraudulent. A telephone hearing was held before a Referee on January 23, 2012. On January 30, 2012, the Referee issued his decisions. For Appeal No. 11-09-C-A132, the Referee reversed the UC Service Center's determination because Claimant sustained his burden of proving "that he earned six times his weekly benefit amount even though they may not have been earned in 'employment' as defined by the [Law]." C.R. Item 19. Accordingly, the Referee declared Claimant eligible for benefits under Section 4(w)(2) of the Law, and assessed no overpayments or penalty weeks under Sections 801(b) and 804(a) of the Law. However, the Referee noted that the Department may wish to investigate Claimant's benefit eligibility for January 2009 because of the incomplete employment wage information Claimant supplied for that period. Relative to Appeal No. 11-09-C-A133, the Referee reversed the UC Service Center's determination because Claimant was deemed eligible for benefits for the weeks in question, no penalty weeks were assessed. With respect to Appeal No. EUC-11-09-C-A134, the Referee vacated and remanded to the UC Service Center to investigate Claimant's eligibility for UC, EUC, FAC and SB under Section 404 of the Law, Sections 4001(b), 4001(c), 4005(b) of the Emergency Unemployment Compensation Supplemental Appropriations Act of 2008 (EUC Act), and Section 2002(f) of The American Recovery and Reinvestment Act of 2009. Relative to Appeal No. 11-09-C-A135, due to Claimant's eligibility for benefits for the weeks at issue, the Referee reversed the UC Service Center's determination and assessed no overpayments or penalty weeks. For Appeal No. EUC-11-09-C-A137, the Referee reversed the UC Service Center's determination because Claimant was eligible for benefits under Section 2002(f) of the American Recovery and Reinvestment Act of 2009 and Section 4001(b) of the EUC Act for weeks ending August 22 through November 7, 2009 and June 12 through March 12, 2011, and assessed no overpayments or penalty weeks. Lastly, relative to Appeal No. SB-11-09-C-A138, the Referee reversed the UC Service Center's determination because Claimant was eligible for extended benefits under Section 403-A(a)(1) of the Law, and assessed no overpayment or penalty weeks.
Appeals No. 11-09-C-A132 (determinations related to weeks ending February 21 through August 15, 2009), No. 11-09-C-A133 (redetermination under Section 801(b) of the Law, 43 P.S. § 871(b) - relating to penalties for false statements), No. EUC-11-09-C-A134 (determinations related to weeks ending April 3, 2010 through June 5, 2010), No. EUC-11-09-C-A135 (determinations related to weeks ending September 26, 2009 through November 7, 2009), No. EUC-11-09-C-A137 (determinations related to weeks ending August 22, 2009 through November 7, 2009 and June 12, 2010 through March 12, 2011), No. SB-11-09-C-A138 (determinations related to weeks ending March 19, 2011 through June 11, 2011).
In Claimant's appeals from the UC Service Center determinations, he stated that in May 2011 he similarly appealed the Department's March 2011 allegation of overpayment. Following a hearing, the Referee (Diehl) in that case ruled in Claimant's favor, and the Department refunded 4 of 7 weeks of previously-withheld benefits. During this hearing, the Referee refused to allow any questions related to that determination stating, "I've already looked at it, . . . it's a completely separate issue from this." C.R. Item 17 at 44.
On January 24, 2012, for each appeal, Claimant filed a motion for a new referee and a reopening of the record, which the Referee denied.
Act of June 30, 2008, P.L. 110-252, 122 Stat. 2353, as amended, § 4005(a), (b), (c), 26 U.S.C. § 3304 Note.
43 P.S. § 813(a)(1), added by Section 2 of the Act of February 9, 1971, P.L. 1.
The Department appealed the decisions, arguing that the Referee erred by relying on objected-to hearsay evidence, namely the checks, the account statement and Curtis' October 21, 2011 letter, in reaching his conclusions. On May 15, 2012, the UCBR issued its decisions and orders. Relative to Appeal Nos. 11-09-C-A132, 11-09-C-A133, EUC-11-09-C-135, EUC-11-09-C-A137 and SB-11-09-C-A138, the UCBR reversed the Referee's decisions. The UCBR held that because the Referee sustained an objection to Curtis' October 21, 2011 letter, the UCBR did not consider it. The UCBR specifically found that although there is evidence that at least $4,000.00 was deposited into Claimant's brokerage account, neither the copies of the checks nor deposits established that Claimant worked and earned wages in January 2009, and Claimant did not provide W-2 or 1099 forms or other documents showing wages for that time period. The UCBR found the Department employees' testimony credible. Thus, Claimant was ineligible for benefits under Sections 4(w)(2) and 401 of the Law, but the Department may wish to investigate whether Claimant is able and available for work under Section 401(d)(1) of the Law since he is self-employed as a day trader of stocks and bonds. Because Claimant did attempt to prove that he earned wages, the UCBR concluded that the overpayments were non-fault, and that there should be no penalty weeks. The UCBR also found that Claimant had non-fraud overpayments pursuant to the EUC Act and the American Recovery and Reinvestment Act of 2009. All overpayments are subject to recoupment. The UCBR deemed Claimant eligible for extended benefits under Section 403-A of the Law only after he exhausts all other benefits. The UCBR concluded that Claimant's due process rights were not violated because he received a full and fair hearing. For Appeal No. EUC-11-09-C-A134, the UCBR vacated the Referee's decision, and reinstated the UC Service Center's determination, but modified the UCBR's Appeal No. 11-09-C-A132 decision in that the overpayments are deemed non-fault and non-fraud, and there are no penalty weeks. Claimant appealed to this Court.
On June 11, 2012, Claimant untimely sought reconsideration of the UCBR's order. By order issued June 21, 2012, the UCBR denied reconsideration. Pursuant to Pa.R.A.P. 1512(a)(1) and 1701(b)(3), and Section 35.241(e) of the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.241(e), once the 30-day appeal period expired on June 15, 2012, the UCBR no longer had jurisdiction to decide reconsideration.
"Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether the factual findings are supported by substantial evidence." Deklinski v. Unemployment Comp. Bd. of Review, 37 A.3d 1262, 1263 n.3 (Pa. Cmwlth. 2012).
Claimant's motion to consolidate the appeals was granted. Curtis' application for intervention was granted, and he joined Claimant's brief. Relative to 1089 C.D. 2012, Claimant filed a motion to enlarge or amend the record which, pursuant to this Court's October 12, 2012 per curiam order, this panel will decide with the merits of these appeals.
Claimant first argues that the Referee abused his discretion by precluding Curtis from participating at the hearing. Although not separately argued in his brief, Claimant indicates in his broader argument that "[t]he Referee hearing was a complete circus, inexcusably denying [Claimant's] right to counsel, John Curtis ([Claimant's] attorney). Then, denying the former Employer, John Curtis, from participating in these judicial proceedings. Over [Claimant's] protestations, they continued the hearing without his counsel, or the Employer being present." Claimant's Br. at 16. We disagree.
In Claimant's petitions for appeal of the UC Service Center determinations, where he was to indicate the name and address of employer and any other person involved in the case, Claimant answered "N/A". See C.R. Item 8. He did not notify the Referee or the Department that he was represented in any capacity. The hearing notices issued on January 9, 2012 expressly notified Claimant that he had the right to be represented by counsel, and to offer witnesses on his behalf. See C.R. Item 14. The notices also quoted Section 101.128(c) of the UCBR's Regulations, which provides: "Only a . . . witness scheduled to testify by telephone, or identified prior to the taking of testimony . . . may testify by telephone . . . ." 34 Pa. Code § 101.128(c). Section 101.131(f) of the UCBR's Regulations states: "A . . . witness not identified to the tribunal and all other parties before the beginning of the testimony will not be permitted to testify by telephone. . . ." 34 Pa. Code § 101.131(f).
Claimant avers that on January 11, 2011, he emailed the UCBR in response to a call he received notifying him of the date and time of the hearing, requesting copies of the notices because he had not yet received them. The UCBR emailed him the date and time for the hearing, in reply to which, Claimant stated that he would "inform my attorney, and any potential witnesses in this matter . . . ." C.R. Item 15 at 2. Although Claimant contends that he "made it clear to [the Referee's] secretary that my attorney would be present on this call . . . ," the Referee had no record that Curtis represented Claimant, or would be called as his witness. C.R. Item 17 at 2. Moreover, it is undisputed that Claimant in fact received the notices before the hearing and did not notify the Referee or the Department that he intended to be represented by Curtis or that he would present Curtis as a witness.
Section 101.130(c) of the UCBR's Regulations specifically provides: "A party intending to testify, to offer the testimony of witnesses, or to be represented by telephone, shall, in advance of the beginning of the hearing, supply the tribunal with the name, location and telephone number of the persons who will so appear." 34 Pa. Code § 101.130(c) (emphasis added).
Claimant did not provide such information in advance of the hearing. Rather, according to the record, after being identified by the Referee, Claimant told the Referee that he would like to involve Curtis in the hearing "to elicit testimony and evidence appropriately." C.R. Item 17 at 2. After identifying the witnesses on hand, the Referee swore them in. Thereafter, the Referee asked the Department's counsel if she objected to Claimant calling Curtis by phone. The Department's counsel said she objected pursuant to Sections 101.128(c) and 101.135 of the UCBR's Regulations, and argued that Curtis cannot act as both Claimant's counsel and witness. When questioned whether Curtis was being offered as Claimant's counsel or witness, Claimant expressly stated that he wanted Curtis to be "a witness," rather than as his counsel. C.R. Item 17 at 6. At that point, the Referee was going to let Curtis testify, but when he asked Claimant for the telephone number, Claimant responded: "Give me one moment please because it was attended (sic) to some of the documents here. Unfortunately it's on my caller ID. I don't want to inadvertently... hang up on you." C.R. Item 17 at 6. The Referee stated: "then [Claimant] I'm going to continue with the hearing. Again, that was your responsibility to provide that to us before the hearing. I'm not going to call him now." C.R. Item 17 at 6 (emphasis added). As Claimant did not provide Curtis' name and telephone number in advance of the hearing, and could not provide the telephone number when asked at the hearing, the Referee did not err in precluding Curtis from testifying at the hearing.
Claimant next argues that the Referee violated his rights under the 6th and 14th Amendments of the United States (U.S.) Constitution when he precluded Curtis from participating at the hearing. According to the only reference in Claimant's brief on this point, "Curtis was purposely excluded from the judicial proceedings . . . [b]oth as a relevant material witness - the Employer at the center of this dispute - and as [Claimant's] attorney[] (in violation of [Claimant's] constitutionally[-] protected rights)." Claimant's Br. at 20. We disagree.
Claimant does not reference similar provisions - Article 1, Sections 1 or 9 - of the Pennsylvania Constitution.
Initially, although Claimant is again referencing having Curtis present to represent him, when asked by the Referee in what capacity he wished to present Curtis, Claimant stated that he wanted to present him as "a witness." C.R. Item 17 at 6.
The 6th Amendment to the U.S. Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.U.S. Const. amend. VI. Because the 6th Amendment applies solely to criminal prosecutions, and this case involves a civil administrative matter, the 6th Amendment is inapplicable to this case.
However, the 14th Amendment to the U.S. Constitution prohibits the deprivation of any person's life, liberty or property without due process of law. U.S. Const. amend. XIV, § 1. "It is well settled that the essential elements of due process in an administrative proceeding are notice and an opportunity to be heard." McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). There is no question here that Claimant was afforded a hearing, before which he was notified in writing that if he wished to present witnesses he had to inform the Referee in advance of the hearing. Claimant did not do so. It is for that reason Curtis was precluded from participating at the hearing. Accordingly, Claimant's constitutional rights were not violated.
Claimant next argues that the UCBR's finding that Claimant was self-employed is not supported by substantial evidence. We disagree. It is well settled that:
the [UCBR] is the ultimate finder of fact in unemployment compensation proceedings. Thus, issues of credibility are for the [UCBR] which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings.Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (citations omitted). "Substantial evidence is defined as such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667, 670 n.3 (Pa. Cmwlth. 2010) (quotation marks omitted).
Here, Theresa Mulligan, management analyst for the office of UC benefits' customer service unit, testified for the Department that Claimant said "he was living off of income he received from stocks or bonds or trading or something of that nature." C.R. Item 17 at 66. Claimant denied he said that. However, the UCBR specifically found the Department's testimony credible. Based upon that testimony, the UCBR found: "[C]laimant is living off of income created from trading stock[s] and bonds," and that he "is self[-]employed" as a day trader of stocks and bonds. C.R. Item 22.
In its discussions, the UCBR stated:
[C]laimant has alleged that he is self[-]employed as a day trader of stocks and bonds. Therefore, the Department may be interested in investigating if [he] is able and available for work pursuant to Section 401(d)(1) of the Law, as he is self[-]employed, if [C]laimant is ineligible for benefits pursuant to Sections 4(l)(2)(b) and 402(h), as he is self[-]employed, and if [he] is not unemployed pursuant to Sections 401, 4(u), as he is self[-]employed.C.R. Item 22. The UCBR's conclusion was made in order to raise the issue for the Department's investigation and was not a basis for the UCBR's decisions herein.
In deciding whether there is substantial evidence to support the [UCBR]'s findings, this Court must examine the testimony in the light most favorable to the prevailing party, in this case, the [Department], giving that party the benefit of any inferences which can logically and reasonably be drawn from the evidence.Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999). Examining the credible evidence in the light most favorable to the Department, there was substantial evidence to support the UCBR's conclusion that Claimant was self-employed. Where, as here, substantial evidence supports the UCBR's findings, credibility determinations made by the UCBR are not subject to review by this Court. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994).
Claimant next argues that the UCBR erred by finding that Claimant's documentary proof of employment in January 2009 was insufficient. We disagree. According to the record, in 2011, when Ms. Foy noticed the error in Claimant's February 2009 benefits application, she sent him a Code 7 Questionnaire to complete and return with proof of earnings, such as pay stubs, W-2, 1099 or other documentation from February 10, 2008 to February 7, 2009. She did not receive any such documentation from Claimant. The UCBR deemed Ms. Foy's testimony credible.
On numerous occasions, Ms. Bletz asked Claimant to provide proof of his January 2009 employment with Curtis. In her initial correspondence on October 20, 2011, Ms. Bletz requested Claimant to supply "proof of the earnings, as to how much [he] earned between [his] 2/10/2008 and 2/8/2009 [benefit applications]." C.R. Item 4. In her second email to Claimant that day, she said:
If Mr. Curtis has a cancelled check or some other written documentation, he can either e-mail or fax that information to me. If he wishes to fax me a letter using his letterhead[,] that would be acceptable also; provided he explains the terms of employment, that an employee/employer relationship existed, your dates of employment, and amount of remuneration that was paid to you, accompanied with a cancelled check or some other type of payment documentation. I am looking for a supporting document that shows the date of the services and the date payment was rendered, such as a cancelled check, W-2 or a 1099, any of those would suffice.C.R. Item 4. In an email that day in response to Curtis' claim that he no longer had copies of the cancelled checks, Ms. Bletz stated:
I would need to know the dates of employment, and the amount of remuneration paid to [Claimant] for his services, as I stated to [Claimant] in an earlier e-mail. This can be a W-2 form, a payroll print[-]out or some other type of document that would have been issued. Perhaps your accountant would have [a] record. I do not know how it works in California, but in Pennsylvania if a cancelled check is needed from a bank, I can call and have the bank retrieve it and send it to me. Unfortunately, the bottom line is that I need some type of supporting documentation to show when [Claimant] was employed by you and the gross amount of remuneration he received for that time period.C.R. Item 4. Again, in an email to Claimant on October 21, 2011, Ms. Bletz reiterated that "[e]xamples of this proof of earnings can be cancelled checks, W-2s, a 1099, paystubs or some other transactional proof." C.R. Item 4. She advised Claimant that she would need his proof no later than November 4, 2011. On that same day, Claimant emailed Ms. Bletz a copy of Curtis' October 21, 2011 letter. On November 14, 2011, Claimant emailed Ms. Bletz copies of two checks.
The UCBR deemed Ms. Bletz' testimony credible. Ms. Bletz testified that the circumstances of this case made her concerned. Although Claimant eventually supplied her with a letter from Curtis on his letterhead and the checks, it took a significant amount of time and repeated requests to obtain the information. In addition, she could not verify the source of the letter or the checks, and the checks did not correlate with the information in Curtis' letter. This, coupled with the fact that Claimant made claims for UC benefits in 2009 without indicating that he earned any wages in January 2009, was the basis for her recommendation that he was ineligible for benefits under his February 2009 application. Moreover, Claimant never completed the Code 7 Questionnaire. In addition, Claimant admitted at the hearing that there was a "lapse in [his] recollection," and "if [he] . . . failed to report [that he had an employer], then that was an oversight on [his] part." C.R. Item 17 at 70.
A claimant who fails to comply with Section 4(w)(2) of the Law is disqualified from receiving UC benefits. Kowalewski v. Unemployment Comp. Bd. of Review, 394 A.2d 679 (Pa. Cmwlth. 1978). That section requires that, in order to be eligible for additional benefits, a claimant must earn at least six times his weekly benefit rate in the preceding benefit year. Accordingly, in light of the UCBR's credibility determination, and examining the credible evidence in the light most favorable to the Department, we hold that the UCBR did not err by finding that the documentary proof Claimant supplied of his January 2009 employment and wages therefrom was insufficient.
Claimant also argues in his brief that he only worked during the weeks ending January 10 and January 17, 2009, during which he did not receive benefits. See Claimant's Br. at 11. The Department's records indeed reflect that he did not receive benefit payments for those weeks, however, that does not prove that he reported his work for Curtis to the Department. The record is clear that Claimant was entitled to benefits for the week ending January 10, 2009, but they were not disbursed to him in light of a previous overpayment. He received no benefits for the week ending January 17, 2009 because his benefits had been exhausted, and there was no legislation to cover that week. In light of the evidence that he claimed benefits for every week in January 2009, Claimant's argument is disingenuous and further supports our conclusion here that Claimant's proof of his January 2009 employment was insufficient.
Claimant next argues that the UCBR erred by erroneously fabricating the finding that he failed to report the wages at the time he applied for UC benefits in February 2009, after the claim was accepted and approved and three years had elapsed. We disagree.
First, there is nothing in the record to support Claimant's bald assertion that the UCBR "fabricated" any finding. Rather, the UCBR reviewed the evidence the parties presented to the Referee, and found "incredible [C]laimant's allegation that he . . . earned wages in January 2009. The Board so concluded [in part] because [Claimant] failed to report the wages at the time . . . ." C.R. Item 22. The UCBR's conclusion is supported by Claimant's admission at the hearing that he may not have reported receiving wages when he made his benefits claims for the weeks ending January 10, 2009, January 24, 2009 and January 31, 2009. Thus, the UCBR did not erroneously fabricate the finding that Claimant failed to report the wages at the time he applied for UC benefits in February 2009.
Claimant asserts in a footnote in the conclusion of his brief: "The [Department] had not contested nor disputed the 2009 UC claim before the prior Referee in the earlier hearing, and therefore, waived their [sic] right to do so later." Claimant's Br. at 19 n.8. Claimant does not cite to any applicable statute of limitations that has been violated, and we have not found one. To the contrary, at the time this matter arose and the Department determined Claimant received fault overpayments, Section 804(a) of the Law, 43 P.S. § 874(a), required the Department to institute legal proceedings to recoup fault overpayments within six years from the end of the benefit year under which the payments were made. It was only later in the proceedings that the Department modified the overpayment designation to non-fault. Section 804(b)(1) of the Law, 43 P.S. § 874(b)(1), provides relative to non-fault overpayments:
Section 804(a) was amended in 2012 to give the Department 10 years to recoup fault overpayments.
Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled . . . shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year . . . . In the absence of misrepresentation or non-disclosure of a material fact, no recoupment shall be had if such overpayment is created by reason of (i) a subsequent reversal of two decisions of eligibility under the provisions of section five hundred one (e) of this act or (ii) the subsequent receipt of holiday pay, vacation pay or the like of which the person had no knowledge, or (iii) a subsequent determination that the person's base year wages were not earned in employment as defined in this act. . . .Accordingly, to the extent Claimant received non-fault overpayments relative to the benefit year beginning February 2009, the Department had until now to initiate proceedings to deduct the overpaid amounts from Claimant's future compensation. Because it initiated such proceedings in 2011, its actions were in accordance with the Law.
We acknowledge that Section 501(a) of the Law, 43 P.S. § 821(a), requires that "[t]he [D]epartment shall promptly examine each application for benefits and on the basis of the facts found by it shall determine whether or not the application is valid," and Section 501(c)(1) of the Law, 43 P.S. § 821(c)(1), states that the Department "shall promptly examine each claim for waiting week credit and each claim for compensation and on the basis of the facts found by it shall determine whether or not the claim is valid." Although it is unclear in this case whether Claimant provided any more than a verbal notification in February 2009 of his January 2009 wages, it became clear to the Department in 2011 that it had insufficient proof of his Section 4(w)(2) compliance. That the Department approved Claimant's 2009 claim, paid him benefits, and only sought proof of his wages in 2011, does not violate Section 4(w)(2) of the Law.
The Law, in fact, supports the Department's actions in this case. Section 401 of the Law provides that compensation shall be paid to an employee who is unemployed. The Department relies upon claimants to verify that they remain unemployed and are, therefore, entitled to UC benefits. Claimant knew he was not entitled to UC benefits for weeks he earned wages. In support of his February 2009 benefits application, Claimant provided the Department with "1/9/2009 through 1/16/2009 as [his] dates of employment." C.R. Item 17 at 56. Although Claimant may have notified the Department of his wages in February 2009, he admittedly did not do so when he applied for his weekly benefits a few weeks earlier. Thus, at the same time Claimant was purportedly earning wages from Curtis, he applied for UC benefits to which he knew he was not entitled. Claimant would now have this Court overlook his actions on the basis that the Department should have caught him before 2011.
Finally, Claimant filed a motion to enlarge or amend the record, in which he seeks to admit a March 28, 2012 letter from the California Franchise Tax Board that states:
Thank you for responding to our request to file a 2008 California tax return. Based on the information you provided, we will take no further action at this time. However, if you made any estimated tax payments or had any state income tax withheld, you must file a return to claim these credits.Claimant's Motion at Ex. B. Claimant avers that in order to establish his equitable estoppel claim, the letter should be included in this record to impeach the Department's witnesses who testified that Claimant did not establish that he earned wages in January 2009, yet "convinced the state of California that [Claimant] had, in fact, earned wages and that [he] had thereby owed taxes on them." Claimant's Motion at ¶ 5. Claimant argues that, "[i]f the state of California was convinced of this truth, then it goes to reason, that the [Department] complainants believed [Claimant] had earned wages. Period." Claimant's Motion at ¶ 5.
Claimant did not raise equitable estoppel in his petitions for review, nor were there any references therein to the Department's contact with the state of California. In the Statement of Facts in his brief, Claimant states for the first time: "The three amigos [Foy, Mulligan and Bletz] further shamelessly trampled over the legal doctrine of equitable estoppel." Claimant's Br. at 11. Later in his Statement of Facts, he simply writes, "Equitable estoppel. Equitable estoppel." Claimant's Br. at 12. In the conclusion of his brief, Claimant similarly writes "Equitable estoppel." Claimant's Br. at 19. Claimant also notes in a footnote in his Conclusion, "Judicial and equitable estoppel." Claimant's Br. at 19 n.8. However, Claimant does not expound upon these statements, and they do not appear to directly correspond with any claim that the Department should be estopped from asserting that he did not earn income in January 2009, when its employees told California's taxing authorities that he did. Claimant stated in the argument portion of his brief that the Department's witnesses committed perjury because they told the state of California something contrary to what they told the Referee, but he did not raise an equitable estoppel argument.
Pennsylvania Rule of Appellate Procedure 1513(d)(5) requires that an appellate jurisdiction petition for review contain "a general statement of the objections to the order . . . ." Accordingly, this Court has held that "issues not stated in the petition for review but raised first in the brief are waived." Greene Cnty. Children & Youth Servs. v. Dep't of Pub. Welfare, 913 A.2d 974, 981 n.5 (Pa. Cmwlth. 2006). Because Claimant failed to raise equitable estoppel relative to the Department's contact with the state of California prior to this appeal, that issue is waived and cannot now be reviewed by this Court. Accordingly, Claimant's motion to enlarge or amend the record relative to 1089 C.D. 2012 is denied.
Even if Claimant had not waived this issue, we would have deemed his argument without merit. The Pennsylvania Supreme Court has held:
[T]he elements of estoppel are 1) misleading words, conduct, or silence by the party against whom the estoppel is asserted; 2) unambiguous proof of reasonable reliance upon the misrepresentation by the party asserting the estoppel; and 3) the lack of a duty to inquire on the party asserting the estoppel.
Based upon the foregoing, we affirm the UCBR's orders.
PER CURIAM
ORDER
AND NOW, this 27th day of March, 2013, the Unemployment Compensation Board of Review's May 15, 2012 orders are affirmed. Claimant's motion to enlarge or amend the record relative to 1089 C.D. 2012 is denied.
Chester Extended Care Ctr. v. Dep't of Pub. Welfare, 526 Pa. 350, 355, 586 A.2d 379, 382 (1991). "[O]ne who asserts estoppel must establish the essential elements by clear, precise, and unequivocal evidence." Borkey v. Twp. of Centre, 847 A.2d 807, 811 (Pa. Cmwlth. 2004) (citations omitted). Here, Claimant did not provide any proof of what the Department's witnesses may have told California's taxing authorities. In fact, the Referee sustained Claimant's objection to the Department's introduction of the emails exchanged between the Department and the California authorities, and the Department's testimony about its findings. See C.R. Item 17 at 12, 57. Thus, there is no record evidence of what the Department's representatives may have said relative to Claimant's purported employment there in January 2009.