Opinion
No. 197 C.D. 2012
11-08-2012
Ida Boulanger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Ida Boulanger (Claimant) petitions for review of the January 26, 2012, order of the Unemployment Compensation Board of Review (UCBR), which affirmed the decision of a referee finding Claimant ineligible for benefits pursuant to sections 402(h) and 4(l)(2)(B) of the Unemployment Compensation Law (Law) because Claimant was self-employed. We reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(h), 753(l)(2)(B).
The UCBR found as follows. Claimant was separated from employment with Crown Cork and Seal (Crown) in April 2011. Subsequent to that separation, Claimant became associated with Cristaldo Associates, Inc. (Employer) and worked as an interpreter/translator on June 20, 2011, July 22, 2011, September 2, 2011, and September 3, 2011. Employer did not exercise direction or control over the duties of Claimant because she was engaged as an independent contractor. Claimant had the right to accept or reject assignments. Employer provides interpreting services for over fifty languages. Claimant was never required to go to Employer's home office. Employer never observed or supervised Claimant's work on the assignments that she accepted. Employer did not train Claimant and did not monitor her work. (UCBR's Findings of Fact, Nos. 1-8.)
Claimant's separation from her employment with Crown is not at issue in this appeal. Claimant applied for unemployment compensation on April 24, 2011, which the local service center granted.
Claimant earned a total of $782.20 for these four assignments. (N.T., 10/20/11, at 9.)
Claimant signed a W-9 Form, Request for Taxpayer Identification Number and Certification and was to be issued a 1099 tax statement. Employer did not guarantee the number of days or the number of hours Claimant would work. Employer is a clearinghouse for connecting interpreters, such as Claimant, with clients. Claimant did not use any materials, supplies, or tools provided by Employer. Claimant was not required to attend meetings. Claimant is permitted to perform like services for other entities and referral groups. (UCBR's Findings of Fact, Nos. 9-14.)
Claimant reported her earnings from the translation work she performed for Employer to the unemployment compensation authorities. The local service center determined that Claimant remained eligible for benefits under section 402(h) of the Law. Employer appealed. By decision dated October 21, 2011, the referee reversed and denied Claimant unemployment compensation benefits for claim weeks ending June 25, 2011. Claimant then appealed to the UCBR. On January 26, 2012, the UCBR concluded that Claimant was ineligible for unemployment compensation benefits pursuant to sections 402(h) and 4(l)(2)(B) of the Law because she was engaged in self-employment. Claimant now petitions this court for review of the UCBR's decision.
Because Claimant was eligible for and actually receiving benefits following her separation from Crown, the issue was not whether the assignment for Employer itself would entitle Claimant to benefits, but whether it would disqualify her from further receipt of the benefits she was already receiving.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
On appeal, Claimant argues that the UCBR erred as a matter of law by finding that Claimant's translation work disqualified her from further receipt of unemployment compensation benefits. We agree.
Recently, in Boulanger v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 75 C.D. 2012, filed September 20, 2012) (Boulanger I), this court addressed the issue of whether Claimant's language translation services, performed for a different employer, Geneva Worldwide, Inc. (Geneva), rendered her ineligible for benefits for compensable week ending June 18, 2011. Therein, we examined the translation services Claimant provided to Geneva as well as to Employer and ultimately determined that Claimant was not ineligible for compensation under section 4(l)(2)(B) of the Law because Claimant was not engaged in "self-employment." Boulanger I, slip op. at 6-7. We explained that Claimant's "occasional and sporadic offer of work over a period of several weeks is de minimis and does not demonstrate that Claimant 'is customarily engaged in an independently established trade, occupation, profession or business.'" Id. (quoting Silver v. Unemployment Compensation Board of Review, 34 A.3d 893, 898 (Pa. Cmwlth. 2011)). For the same reasons stated in Boulanger I, we once again conclude that Claimant is not ineligible for unemployment compensation benefits.
Alternatively, we reasoned that even if Claimant's work amounted to "self-employment," Claimant qualified for the "sideline" exception set forth in section 402(h) of the Law. Boulanger I, slip op. at 7-8.
Claimant also argues that the UCBR erred in assessing a $5,055.00 fault overpayment against her. However, Claimant's petition for review seeks review of only the UCBR's January 26, 2012, decision, which denied unemployment compensation benefits but makes no reference to any fault overpayment. Although Claimant references determinations of overpayment in her statement of orders in question (Claimant's Br. at 5), Claimant has not challenged the notice of determination of fault overpayment in the instant petition for review and the certified record contains no documentation regarding overpayment. Therefore, we will not address this issue. --------
Accordingly, we reverse the decision of the UCBR.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 8th day of November, 2012, we reverse the January 26, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge