Opinion
No. 384 C.D. 2012 No. 385 C.D. 2012 No. 386 C.D. 2012
10-12-2012
Eric Murphy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Pro se Petitioner Eric Murphy (Claimant) seeks review of three orders of the Unemployment Compensation Board of Review (Board). The Board affirmed the Referee's decisions and denied Claimant's requests for a waiver of three overpayments of Emergency Unemployment Compensation (EUC) benefits, which are subject to recoupment pursuant to Section 4005(b) of the Supplemental Appropriations Act of 2008 (EUC Act of 2008). The Board also denied Claimant's request that the record be remanded for additional testimony. For the reasons set forth below, we affirm.
Section 4005(b) of the EUC Act of 2008 governs the overpayment and repayment of EUC benefits for those who are ineligible for such benefits and authorizes a state agency, inter alia, to recover the amount paid by recouping it against future federal or state unemployment compensation benefits and to waive such overpayments under certain circumstances. 26 U.S.C. § 3304 note. EUC benefits are federally funded and were created by Congress pursuant to the EUC Act of 2008. McKenna v. Unemployment Comp. Bd. of Review, 981 A.2d 415, 417 (Pa. Cmwlth. 2009). The EUC benefits programs are administered by the states. Id. In Pennsylvania, unemployed claimants who are not eligible for regular UC benefits from Pennsylvania, another state, the federal government, or Canada may be eligible for EUC benefits. Id. Eligibility requirements for receipt of regular UC benefits are also applicable to EUC benefits, along with additional requirements imposed by the EUC Act of 2008. Id. Section 4001(d)(2) of the EUC Act of 2008 provides that the terms and conditions of the state law which apply to claims for regular compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof.
In its brief, the Board mentions that one of the overpayments was for Federal Additional Compensation (FAC), but that does not appear to be reflected in the Referee's or Board's decisions. Section 2002(f) of the American Recovery and Reinvestment Act of 2009 (ARRA), 26 U.S.C. § 3304 note, provides for an additional $25 per week in compensation to individuals otherwise entitled to compensation under state law. ARRA also provides that overpayments of FAC shall be recovered in the same manner as EUC overpayments. 26 U.S.C. § 3304 note. Thus, for purposes of our review, it is irrelevant whether the overpayments were of EUC benefits or FAC benefits.
On June 29, 2011, the Altoona UC Service Center (Service Center) issued three determinations, each denying Claimant a waiver of an overpayment of EUC benefits. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determinations. (C.R., Item No. 5.) Following a hearing, at which no one appeared, the Referee affirmed the Service Center's determinations, denying Claimant's requests for waiver of the overpayments. (C.R., Item No. 10.) In issuing his decisions, the Referee made the following findings of fact:
1. On June 16, 2011, the UC Authorities issued a Notice of Determination which found the Claimant received Emergency Unemployment Compensation (EUC) Benefits in the amount of [x] to which the Claimant was not entitled and ruled the overpayment
recoupable under the non-fraud provisions of the EUC Act of 2008.(Id.)
2. On June 20, 2011, the Claimant submitted a request for waiver of the EUC overpayment.
3. On June 29, 2011, the UC Service Center denied the Claimant's request for waiver of overpayment.
Other than changing the particular overpayment amount listed in finding of fact number 1 and slightly rephrasing certain wording throughout each determination, the Referee's findings of fact, analysis, and conclusions in all three determinations are identical.
The Referee noted in his decisions that Claimant was not present at the hearing to prove reasons why his requests for waiver should be granted. (Id.) The Referee concluded that Claimant did not establish that repaying the EUC overpayments would result in financial hardship to him, and, thus, he upheld the Service Center's determinations denying Claimant's requests for a waiver. (Id.)
"[F]inancial hardship [i]s a basis for [granting] a waiver request." Deklinski v. Unemployment Comp. Bd. of Review, 37 A.3d 1262, 1264 (Pa. Cmwlth. 2012).
Claimant appealed the Referee's decisions to the Board, which affirmed. In its orders, the Board adopted and incorporated the findings of fact and conclusions of law from each of the Referee's corresponding decisions. (C.R., Item No. 14.) The Board determined that Claimant did not assert any good cause for his late arrival at the hearing or for his failure to notify the Referee's office that he was going to be late. (Id.) The Board, therefore, denied Claimant's request that the record be remanded for additional testimony. (Id.) Claimant now petitions this Court for review.
On appeal, Claimant essentially argues that the Board erred in concluding that Claimant failed to establish a financial hardship entitling him to a waiver of recoupment. Claimant also argues that the Board erred in denying his request to reopen the hearing before the Referee.
This Court's standard of review is generally limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704. The standard for review of a decision to grant or to deny a request to reopen a hearing, however, is whether the Board abused its discretion. Gordon v. Unemployment Comp. Bd. of Review, 403 A.2d 235 (Pa. Cmwlth. 1979).
Claimant also presents several arguments that seem to concern the circumstances of his actual separation from employment and other complaints that he has about his former employer. The determinations at issue in this appeal only address whether Claimant was entitled to a waiver of the overpayments and whether Claimant was entitled to a reopening of the hearing before the Referee. Thus, we will not consider Claimant's arguments that do not pertain to these issues. Additionally, in the petition for review submitted to this Court, Claimant states that the order of the Board should be reversed because its determinations are barred by the doctrines of collateral estoppel and res judicata. Because Claimant does not develop this issue in his brief, the issue is waived. See Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). Nonetheless, we note that there does not appear to be any basis upon which either doctrine would apply to Claimant's case. Finally, Claimant does not challenge the Board's findings of fact. The findings, therefore, are conclusive and binding on this Court upon review. Salamak v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985). --------
First, we will address whether the Board erred in concluding that Claimant failed to demonstrate financial hardship. Section 4005(b) of the EUC Act of 2008 provides:
(b) Repayment.—In the case of individuals who have received amounts of emergency unemployment compensation under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such emergency unemployment compensation to the State agency, except that the State agency may waive such repayment if it determines that—
26 U.S.C. § 3304 note.(1) the payment of such emergency unemployment compensation was without fault on the part of any such individual; and
(2) such repayment would be contrary to equity and good conscience.
Claimant argues that repayment would be contrary to equity and good conscience because he has remained unemployed since being discharged by his former employer. Claimant argues that this long-lasting interruption of earnings establishes financial hardship. Claimant, however, has failed to present any competent evidence to support his argument. Claimant did not appear at the hearing before the Referee to testify to his financial situation, and no other evidence of record indicates that Claimant is suffering any economic hardship. Because Claimant has not shown, by record evidence, that recoupment would be contrary to equity and good conscience, he is not entitled to waivers of the overpayments.
Next, we will address whether the Board erred in denying Claimant's request to reopen the hearing before the Referee. The Board's regulation addressing a party's nonappearance at a hearing provides:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code § 101.51. Thus, when a party fails to appear at a hearing before the referee without proper cause, the referee must issue a decision on the merits of the case based on the evidence of record. Ortiz v. Unemployment Comp. Bd. of Review, 481 A.2d 1383, 1386 (Pa. Cmwlth. 1984).
Here, the hearing before the Referee was scheduled to begin at 12:00 p.m. on November 21, 2011. (C.R., Item No. 7.) The transcript of the hearing indicates that, as of 12:03 p.m., Claimant was not present at the hearing. (C.R., Item No. 9 at 1.) Furthermore, "there [wa]s nothing in the Referee's folder to suggest that the Claimant called to say that he was going to be late or to request a continuance." (Id.) The Referee stated that he was proceeding with the hearing as scheduled. (Id.) After admitting several documents into the record and noting that no one was at the hearing to object to their admission, the Referee closed the hearing. (Id. at 1-2.) The Referee subsequently issued three determinations based on the evidence of record before him, concluding that Claimant was not entitled to the waivers.
Claimant argues that he set forth a legitimate request for a continuance of the hearing in his petitions for appeal to the Board. Claimant, however, never requested a continuance of the hearing held on November 21, 2011; rather, it appears from the record that he requested a reopening of the hearing under Section 101.24 of the regulations. (C.R., Item No. 11.) That section provides:
A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is . . . . denied, the Board will append to the record the request, supporting material and the ruling on the request, so that
it shall be subject to review in connection with any further appeal to the Commonwealth Court.34 Pa. Code § 101.24(c).
In its request to reopen a hearing, a party must provide "reasons believed to constitute 'proper cause' for not appearing" at the hearing to which the request pertains. 34 Pa. Code § 101.24(a). Furthermore, "the decision to grant or deny a request to reopen a hearing is within the Board's discretion." Cannady v. Unemployment Comp. Bd. of Review, 487 A.2d 1028, 1030 (Pa. Cmwlth. 1985).
Claimant included a letter in his petition for appeal to the Board, stating that he was ten minutes late to the hearing before the Referee. (C.R., Item No. 11.) He also stated that it was customary for referees to wait fifteen minutes for the parties to arrive before concluding the hearing. (Id.) The Board determined that Claimant did not assert any good cause for his late arrival at the hearing or for his failure to notify the Referee that he was going to be late. (C.R., Item No. 14.) Thus, the Board denied Claimant's request to reopen the hearing and affirmed the decision of the Referee. (Id.) Claimant did not provide any justification to this Court for his failure to appear at the hearing on time or to notify the Referee of his tardiness. We conclude, therefore, that the Board did not err in denying Claimant's request.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 12th day of October, 2012, the orders of the Unemployment Compensation Board of Review are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge