Opinion
Nos. 2416 C.D. 2008, 2424 C.D. 2008.
Submitted: June 19, 2009.
Filed: July 20, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Joseph Ehrmann (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board), affirming the referee's decision and order and finding that Claimant was ineligible for unemployment compensation benefits pursuant to Section 402(h) of the Pennsylvania Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Executive Sess., P.L. (1937),as amended, 43 P.S. § 802(h).
Claimant was employed as a photocopier technician, service manager and salesperson by Alteck Business Systems (Employer) from approximately June 22, 1998, through May 31, 2001. Claimant's final rate of pay was $1,500.00 bi-weekly.
We note that the record also refers to Employer as "Alltech" and "Altech." Claimant uses the "Altek" version and, thus, we will hereafter use this spelling.
In June of 2001, Claimant filed for unemployment compensation benefits with the Philadelphia Unemployment Compensation Service Center (the Service Center) and subsequently received benefits in the amount of $430.00 per week from July 7, 2001, through December 29, 2001. On July 27, 2001, the Service Center issued a determination indicating that Claimant was ineligible for benefits under Section 402(b) of the Law for the waiting week ending June 30, 2001, and the claim week ending July 7, 2001. Claimant appealed the determination to the referee.
By decision dated September 14, 2001, the referee reversed the Service Center's determination and granted benefits. The referee found that Claimant had been involuntarily separated from his employment. Further, the referee concluded that because there was no evidence to support a finding of willful misconduct, Claimant could not be disqualified from receiving unemployment compensation benefits.
Three months later, Claimant filed a Temporary Extended Unemployment Compensation (TEUC) claim. Claimant subsequently received TEUC benefits for the period beginning March 16, 2002, through September 7, 2002.
The TEUC Act, Title II of Pub.L. No. 107-147, 116 Stat. 21 (2002), created federally funded unemployment compensation benefits for "exhaustees" who otherwise met the TEUC Act's requirements. See Zimmerman v. Unemployment Compensation Board of Review, 829 A.2d 735 (Pa.Cmwlth. 2003).
In the fall of 2003, an anonymous person reported to the Unemployment Compensation Fraud Hotline that Claimant had been self-employed and working during the time when he had been receiving unemployment compensation and TEUC benefits. The anonymous caller reported that he had seen Claimant servicing a copy machine at Colonial Electric Supply (Colonial).
As a result of the anonymous call, George Thomas, Audit and Investigation Specialist, conducted an investigation of Claimant. Mr. Thomas contacted the human resources manager at Colonial who reported that Claimant had been servicing copy machines for them under the name of "Copiserv" since approximately December 2001. (O.R. at Item No. 2). Mr. Thomas obtained copies of invoices, with dates beginning on December 5, 2001, that showed that Claimant had sold copy machine toners to Colonial several times and had once delivered, setup and installed a copy machine for them. Mr. Thomas obtained Claimant's new enterprise internet registration form indicating that he had registered Copiserv as a business on September 1, 2001. Mr. Thomas also interviewed Claimant who subsequently signed an "internal audits division statement form." (O.R. at Item No. 2). On that form, Claimant indicated that he had started his own small business in September 2001, but that the business had "not shown a profit" since it was started. Id. Mr. Thomas forwarded the information to the Service Center and to Mr. Tunney as he concluded that Claimant was ineligible for benefits because of his self-employment and, therefore, he had received an overpayment of benefits.
The information contained in this paragraph was extracted from Mr. Thomas' letter dated December 3, 2003, to Martin Tunney, Chief of the Internal Audits Division (IAD). (O.R. at Item. No. 2).
Next, with regard to Claimant's regular unemployment compensation benefits, a notice of determination of an overpayment of benefits, dated August 6, 2004, was mailed to Claimant indicating that he was ineligible for benefits for weeks ending September 8, 2001, through December 29, 2001, due to his self-employment pursuant to Section 402(h) of the Law. The notice indicated that the fault overpayment to Claimant was in the amount of $7310.00 and that he was being penalized nineteen weeks of benefits.
Section 402(h) provides that an individual shall be ineligible for unemployment compensation benefits for the period in which he is engaged in self-employment. 43 P.S. § 802(h). However, a claimant may not be disqualified for benefits due to self-employment, if the claimant establishes that the following four conditions were present:
(1) the self-employment activity precedes valid separation from full-time work;
(2) the self-employment activity continues without substantial change after separation;
(3) the claimant remains available for full-time work after separation; and
(4) the self-employment activity is not the primary source of the claimant's livelihood.
Dausch v. Unemployment Compensation Board of Review, 725 A.2d 230, 231 (Pa.Cmwlth. 1999) (citation omitted).
A second notice of determination of overpayment of benefits, also dated August 6, 2004, was mailed to Claimant indicating that he had received a total of $11,180.00 in TEUC benefits to which he had not been entitled. This notice indicated that such fraud overpayments had been made for the weeks ending March 16, 2002, through September 7, 2002. A notice of penalty weeks determination, regarding the overpayment of the TEUC benefits, indicated that Claimant was being penalized twenty-eight weeks of benefits.
In October, 2007, Claimant received a payment due notice from the Bureau of Unemployment Compensation Benefits and Allowances attempting to collect the amount of overpaid unemployment and TEUC benefits with interest. Claimant then wrote a letter to the Department of Labor Industry stating that he had not received any notices of any determinations and was unaware of any fault overpayment determinations having been made.
Claimant's letter was not part of the record.
By letter dated June 4, 2008, Frances A. Lavender, Head of the Benefit Payment Control Unit, responded to Claimant's letter. Ms. Lavender first reviewed the Service Center's actions in mailing the determinations and noted that it had mailed the determinations to 118 Cinnamon Hill Road, King Of Prussia, Pennsylvania, and subsequently mailed the documents to P.O. Box 60250, King of Prussia, Pennsylvania. Ms. Lavender indicated that the United States Post Office had returned the determinations to the Service Center on September 15, 2004, noting that Claimant's forwarding address had expired. Ms. Lavender noted that Claimant could file a "late" appeal to the referee, as his appeal date of August 23, 2004, had long since passed, and the referee would first be required to consider his reasons for filing such a late appeal.
By letter dated June 24, 2008, Claimant requested "late" appeals of the determinations made by the Service Center in August, 2004. Claimant requested the consideration of such late appeals as he "could not answer any questions pertinent to the findings" of his ineligibility for benefits because he had not been made aware of the determinations. (O.R. at Item No. 6). Claimant asserted that he had been unable to be contacted "due to three address changes [he] had to make due to personal reasons." (O.R. at Item No. 6). Finally, Claimant noted that he had been "forthright in explaining [his] situation in seeking to start a business" when he initiated his claim and that the Service Center representative told him that he could do so. Id.
On July 1, 2008, a notice of hearing was mailed to Claimant scheduling a hearing before the referee for July 21, 2008. The notice indicated that the initial issue to be considered by the referee was whether Claimant had filed timely and valid appeals from the initial determinations. The notice also indicated that the following issues could be considered:
Claimant's two appeals, regarding the unemployment compensation benefits and the TEUC benefits, were consolidated for hearing.
18. Section 402(h)-Whether claimant is engaged in self-employment.
. . .
51. Section 801-Whether claimant knowingly made a false statement or knowingly failed to disclose a material fact in order to obtain or increase benefits and is thereby subject to an additional period of disqualification.
52. Section 804-Whether claimant has previously received benefits to which he was not entitled for the claim period in question and whether fault or nofault provisions should govern the recoupment of compensation.
57. Extended Unemployment Compensation (EUC) Act of 1991 and Temporary Extended Unemployment Compensation (TEUC) Act of 2002 — Whether claimant is entitled to extended compensation.
(O.R. at Item No. 7).
The hearing before the referee was held as scheduled. Claimant appeared and testified on his own behalf. The referee issued his decision, with a mailing date of July 25, 2008, and found Claimant ineligible for benefits. With regard to the timeliness issue, the referee found that there was a two-and-a-half year time lapse between the end of Claimant's benefit period and the issuance of the Service Center's notices at which time Claimant was not under any obligation to either alert the Service Center about a change of address or to maintain a current address. The referee noted that it was not until Claimant had exhausted his benefits, during the time period between August 2002, and October 2006, that he changed addresses at least four times. Thus, as a threshold matter, the referee found that Claimant was entitled to file the appeals nunc pro tunc and, thus, the referee considered the merits of Claimant's appeals.
As to the merits, the referee concluded that Claimant was ineligible for benefits pursuant to Section 802(h) of the Law. First, with regard to the unemployment compensation benefits, the referee found that Claimant had engaged in a sideline business of selling copier supplies and had provided copy machine maintenance services, beginning on September 1, 2001, which was approximately four months after his separation from Employer. Thus, he affirmed the Service Center's determination and denied those benefits. Further, the referee found that Claimant was ineligible for the TEUC benefits which he had received because of his self-employment. The referee concluded that Claimant had received those TEUC benefits because of his prior material misrepresentation and statement to the Service Center that he had started his sideline business prior to his separation from Employer. Thus, the referee affirmed the Service Center's determination denying TEUC benefits.
On August 11, 2008, Claimant filed two letters, which he represented as appeals, with the Board. Claimant asserted that his sideline business, Copiserv, while only registered as a business on July 9, 2001, had actually been in existence for several years prior to that date. Claimant asserted that the sideline business had not been his primary source of income and that he had not earned any significant income from Copiserv. Claimant asserted that he had reported his ownership of Copiserv to the Service Center representative when he initiated the request for unemployment compensation benefits. Finally, Claimant also requested a clarification of the term "sideline business" as used in the Pennsylvania Unemployment Compensation Handbook. (O.R. at Item No. 11).
By order with a mailing date of October 28, 2008, the Board adopted and incorporated all of the referee's findings and conclusions and affirmed the referee's decision with regard to both appeals. Subsequently, Claimant filed separate petitions for review with this Court.
By order dated January 23, 2009, these petitions were consolidated before this Court.
On appeal, Claimant argues, in his statement of questions involved, that the Board "erred as a matter of law in not allowing [him] to prove that the sideline business existed prior to [his] separation" from Employer. (Claimant's Brief at 6). Claimant argues that in his appeal to the Board, he was "unable to be present and the decision was based solely on evidence gathered [at the hearing before the referee] that did not contain anything that [he] could have entered." (Claimant's Brief at 8). Claimant also argues that he was "unable to represent himself at the initial hearing on August 5, 2004, thus preventing him from obtaining knowledge of the charges brought before him, which would enable [him] to provide adequate evidence in an appeal of such case." (Claimant's Brief at 8). Finally, Claimant sets forth the law as it pertains to self-employment and the subsequent eligibility for unemployment compensation benefits.
Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa.Cmwlth.), petition for allowance of appeal denied, 548 Pa. 663, 698 A.2d 69 (1997). Moreover, the Board is the ultimate finder of fact and questions of credibility and evidentiary weight are matters for the fact finder and not a reviewing court. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084 (Pa.Cmwlth. 1997).
We note that although Claimant asserts that he was not able to present testimony or evidence at the hearing on August 5, 2004, a hearing was not scheduled or held on that date. The Service Center's notices of determination of overpayments each had a mailing date of August 6, 2004.
Pennsylvania Rule of Appellate Procedure 2116 provides that:
The statement of the questions involved must state concisely the issues to be resolved . . . and will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.
Pa. R.A.P. 2116(a).
Further, the appellate rule concerning the requirements of the "statement of questions involved" applies to all briefs, regardless of whether they are written by an attorney or by the party on his own behalf. Daly v. Unemployment Compensation Board of Review, 631 A.2d 720 (Pa.Cmwlth. 1993). An appellant waives an issue by failing to raise the argument in the petition for review, by failing to include the issue in the statement of questions involved or by failing to mention the issue anywhere else in his brief. Brooks v. Workers' Compensation Board of Review (Anchor Glass Container), 624 A.2d 821 (Pa.Cmwlth.), petition for allowance of appeal denied, 536 Pa. 631, 637 A.2d 291 (1994). Moreover, any person who represents himself in legal matters must to an extent assume the risk of his lack of expertise in legal training. Barber v. Tax Review Board, 850 A.2d 866 (Pa.Cmwlth. 2004), petition for allowance of appeal denied, 583 Pa. 697, 879 A.2d 783 (2005).
Claimant argues that he was not allowed to present evidence to the Board and that had he participated he would have presented proof that he started his business before he separated from Employer in March of 2001. Claimant fails to acknowledge that the referee, some three years later, granted him a nunc pro tunc appeal from the determinations because he concluded that Claimant had failed to receive notice of the aforesaid determinations by the Service Center. The referee allowed Claimant to testify on his own behalf and present evidence as to the merits of the appeal, i.e., whether he was eligible to receive benefits even though he was self-employed. Thus, we disagree with Claimant's allegation that he was never afforded the opportunity to present evidence.
At the hearing before the referee, Claimant first testified that he told the Service Center representative that he was "thinking about going into business for himself" when he first spoke to someone about opening a claim for unemployment compensation benefits. (N.T. at 10). Upon further questioning by the referee, Claimant testified that he was positive that he mentioned "having" a sideline business to the Service Center representative when he initiated his claim in June of 2001. Claimant also testified that he performed "service work" for Colonial in 2002 and that his business relationship with Colonial "grew" after July of 2002. (N.T. at 8). A review of the transcript from that hearing and an analysis of the referee's findings and conclusions indicate that the referee gave Claimant every opportunity to present his testimony and evidence. A review of the referee's decision indicates that he fully considered all of Claimant's testimony and documents. Thus, we cannot say that the Board erred in affirming the referee's decision and order.
Accordingly, we affirm the Board's order.
ORDER
AND NOW, this 20th day of July, 2009, the order of the Unemployment Compensation Board of Review is hereby affirmed.