Opinion
No. 233 C.D. 2011
07-28-2011
Gary R. Goepfert, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Gary R. Goepfert (Claimant) petitions pro se for review of the order of the Unemployment Compensation Board of Review (Review) affirming the decision of the Unemployment Compensation Referee (Referee) finding him ineligible for benefits under Section 402(h) of the Unemployment Compensation Law (Law) and, therefore, ineligible for Emergency Unemployment Compensation (EUC) benefits under the Emergency Unemployment Act of 2008 (Act) because he was self-employed. Because Claimant failed to properly preserve any issues on appeal, we affirm.
Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. §802(h). That section provides:
An employe shall be ineligible for compensation for any week
(h) In which he is engaged in self-employment.
Title IV of the Supplemental Emergency Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323, Section 4001 et seq., 26 U.S.C. §3304 Note. The Act indicates that the terms and conditions of the state's Unemployment Compensation law which apply to claims for regular benefits shall also apply to claims for EUC benefits.
Claimant was employed as a dog groomer with PetSmart from July 2001, until March 27, 2009. When PetSmart terminated his employment, Claimant applied for and apparently was receiving unemployment compensation benefits. When his regular unemployment compensation benefits were exhausted, Claimant applied for EUC benefits. However, on July 19, 2010, Claimant then began working for the Lincoln Highway Veterinary Clinic (Employer) as a dog groomer. Both Claimant and Employer indicated on their Department of Labor and Industry questionnaires that Claimant was working as an independent contractor. Nonetheless, the Department of Labor and Industry's Office of UC Benefits found Claimant eligible for benefits because he was not self-employed as he was not free from direction or control in the performance of his dog grooming duties. Employer appealed this decision.
Section 4001(b) of the Act provides that a "State agency . . . will make payments of emergency unemployment compensation to individuals who—(1) have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year." 26 U.S.C. §3304(b).
Before the Referee, Angela Lewis (Mrs. Lewis), Employer's practice manager, testified that she informed Claimant that Employer was interested in hiring him as an independent contractor and Claimant "had no problems with that." (Hearing Transcript (H.T.) at 4). Claimant told Mrs. Lewis that he worked for other facilities and that he was only able to work for Employer on Mondays, Wednesdays and Fridays. Employer provided Claimant with a room, bathtub and shampoo in order to conduct his services, but otherwise Claimant provided his own equipment and supplies. Mrs. Lewis testified that Employer did not direct Claimant or oversee the performance of his dog grooming services. Claimant got his instructions directly from the clients and if any issues arose, they were handled directly between Claimant and his clients. Claimant was not on the employee list and did not clock in and out of work. Employer did not provide Claimant with any benefits or withhold taxes from his payments, and Claimant would receive a 1099 form at the end of the year. According to Mrs. Lewis, clients paid Employer for the grooming services, and Claimant then sent Employer invoices in order to receive his 50 percent commission.
Claimant testified that at the time of the hearing, he was still working as a dog groomer for Employer, was paid 50 percent commission for each pet he groomed, worked approximately 15 hours per week, and usually earned less than $200 per week. Claimant testified he was not performing dog grooming services for any other veterinary clinics and the commissions he received from Employer was his only income. Claimant denied telling Employer at the time he was hired that he was also working as a groomer for the Unionville Small Animal Association. He also denied telling Employer that he wanted to be paid "under the table." (H.T. at 10). Claimant testified that when he worked for PetSmart, he was considered an employee and he received a regular paycheck and a W2 tax form.
The Referee found that Claimant was engaged in an independently established trade as a pet groomer making him ineligible for benefits under Section 402(h) of the Law and correspondingly ineligible for EUC benefits. The Referee noted that Claimant and Employer entered into an independent contractor agreement at the time he was hired. While this was not dispositive, the Referee also noted that Claimant performed his grooming services with his own tools and set his own schedule. Employer did not directly supervise Claimant and did not direct the manner in which he performed his duties; rather, Claimant took instruction directly from his clients. In addition, Employer did not restrict Claimant from working for other clinics and did not give Claimant any benefits or withhold taxes from his payments. Given these facts, the Referee found Claimant was an independent contractor and reversed the determination of the Office of UC Benefits. Claimant appealed to the Board, which resolved all conflicts in the testimony in favor of Employer and affirmed the Referee's decision. This appeal followed.
This Court's scope of review is limited to determining whether there was a constitutional violation or error of law, and whether necessary findings of fact were supported by substantial evidence. Essick v. Unemployment Compensation Board of Review, 655 A.2d 669 (Pa. Cmwlth. 1995).
Claimant generally contends that the Board erred in determining that he was not entitled to EUC benefits because he was an independent contractor. However, Claimant did not specifically challenge any of the Board's findings in his petition for review or in his brief; therefore, these findings are conclusive on appeal. Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167 (Pa. Cmwlth. 1997). In addition, Claimant appears to raise estoppel and equity issues in his brief to this Court claiming that he was mislead by someone at the Allentown Unemployment Office that he would not jeopardize his unemployment benefits if he began working for Employer. However, Claimant failed to raise this issue before the Board or any issue for that matter, as his Petition for Appeal simply states, "I respectfully disagree with the decision rendered on October 22, 2010." We have repeatedly held that failure to raise an issue before the Board or in a petition for review, even by a pro se claimant, constitutes waiver of that issue. See McDonough v. Unemployment Compensation Board of Review, 670 A.2d 749, 750 (Pa. Cmwlth. 1996); Reading Nursing Center v. Unemployment Compensation Board of Review, 663 A.2d 270, 275 (Pa. Cmwlth. 1995) (citing Tri-State Scientific v. Unemployment Compensation Board of Review, 589 A.2d 305 (Pa. Cmwlth. 1991)).
In any event, the Board, which adopted the findings of the Referee, found that Claimant entered into an independent contractor agreement with Employer; Employer did not restrict Claimant from working for other clinics; Claimant set his own schedule and used his own tools; and Employer did not direct how Claimant performed his duties. Given these findings, and the fact that the Board resolved all conflicts in testimony in favor of Employer, the Board had no choice but to find that Claimant was an independent contractor and to deny benefits.
Based on the foregoing, Claimant has failed to properly preserve any issues for this Court's consideration. Accordingly, the decision of the Board is affirmed.
/s/_________
DAN PELLEGRINI, Judge Judge Leavitt concurs in the result only. ORDER
AND NOW, this 28th day of July, 2011, the order of the Unemployment Compensation Board of Review, dated December 23, 2010, is affirmed.
/s/_________
DAN PELLEGRINI, Judge