Opinion
No. 2400 C.D. 2011 No. 2401 C.D. 2011
11-29-2012
David Hatchigian, 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
Petitioner David Hatchigian (Claimant), acting pro se, petitions for review of two orders of the Unemployment Compensation Board of Review (Board), both dated October 26, 2011. The Board, affirming the decisions of a Referee, concluded that Claimant's pensions are deductible from emergency unemployment compensation (EUC) benefits for which he otherwise is eligible. As a result, the Board reduced his benefits to zero. The Board also concluded that Claimant had a non-fraud overpayment, which is subject to recoupment pursuant to Section 4005(b) of the Supplemental Appropriations Act of 2008 (EUC Act of 2008). We now 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.
As background, Claimant applied for and began receiving unemployment compensation benefits effective December 9, 2007, at a rate of $520 per week. Sometime around August 2008, he began receiving EUC benefits. It appears that Claimant again became eligible for regular unemployment compensation benefits, effective January 3, 2010, and his weekly benefit rate increased to $523 per week. He exhausted those benefits around May 2010. As a result of the cessation of his unemployment compensation benefits, Claimant activated his union pensions. Effective June 1, 2010, Claimant began receiving two different pensions, in the amounts of $631.20 and $300 per week (the sum of which exceeds the amount of his most recent weekly benefit rate). Claimant's base year employers contributed 100% of the funding of Claimant's pensions. Claimant maintains that he "involuntarily" activated his pensions, because he was compelled to do so by his economic circumstances. Claimant also contends that by the time he activated his pensions, the federal government extended EUC benefits, but the Department of Labor & Industry (Department) failed to inform him that he was eligible for EUC benefits under the extension. He contends that had he known about the extension of EUC benefits, he would not have activated his pensions. Moreover, he contends that he made repeated attempts to ascertain the status of his benefits. (Petitioner's brief at 11.)
The Board represents that the extension of EUC benefits was signed into law on July 22, 2010. (Board's brief at 5.)
Despite having activated his pensions, Claimant applied for and began receiving the extended EUC benefits. The Altoona UC Service Center (Service Center), however, issued two determinations, dated July 14, 2011, deducting pension benefits received by Claimant, thereby reducing his weekly benefit allowance to zero. The Service Center also determined that Claimant had a non-fraud overpayment. Claimant appealed. Following a hearing, a Referee issued two decisions, again reducing Claimant's weekly benefit allowance to zero as a result of his pensions and finding a non-fraud overpayment. Claimant then appealed to the Board, which issued two decisions affirming the Referee's decisions. Claimant now petitions this Court for review.
For claims weeks ending January 22, 2011, through May 28, 2011, Claimant received $9,975 in EUC benefits.
The Court granted the Board's request to consolidate the appeals.
On appeal, Claimant appears to argue that the Board committed an error of law by reducing his benefits by the amount of his pensions and by imposing a non-fraud overpayment, because the Department's failure to notify Claimant of his eligibility for extended EUC benefits in a timely manner triggered Claimant's decision to activate his pensions. Claimant contends that he accessed the pensions as a "last resort defensive measure when the benefits seemed to have been terminated" and that he was compelled solely by the Department's own inordinate delay in notifying him of his eligibility for extended EUC benefits, through no fault or omission of his own. (Petitioner's brief at 11.)
This Court's standard of review is 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Section 404(d)(2) of the Unemployment Compensation Law (Law) provides for deductions of pension benefits from weekly compensation rates, as follows:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(d)(2).
(i) In addition to the deductions provided for in clause (1), for any week with respect to which an individual is receiving a pension, including a governmental or other pension, retirement or retired pay, annuity or any other similar periodic payment, under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under subclause (ii).The pension offset contained in Section 404(d)(2) of the Law advances two legitimate government objectives: "(1) the promotion of the fiscal integrity of the unemployment compensation fund; and (2) [the] elimination of the duplicative 'windfall' benefits to those who, primarily because of their retirement eligibility, are receiving adequate wage replacement income and thus experiencing greater economic security than those less fortunate." General Motors Corp. v. Unemployment Comp. Bd. of Review, 948 A.2d 256, 260 (Pa. Cmwlth.), appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008) (alteration in original) (quoting McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955, 961 (Pa. Cmwlth. 2002)).
(ii) If the pension is entirely contributed to by the employer, then one hundred per centum (100%) of the pro-rated weekly amount of the pension shall be deducted. Except as set forth in clause (4), if the pension is contributed to by the individual, in any amount, then fifty per centum (50%) of the pro-rated weekly amount of the pension shall be deducted.
(iii) No deduction shall be made under this clause by reason of the receipt of a pension if the services performed by the individual during the base period or remuneration received for such services for such employer did not affect the individual's eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity or similar payment.
As pointed out by the Board, Claimant does not dispute the receipt of his pensions, the amount of his pensions, or that they meet the requirements for deduction of pension payments under Section 404(d)(2) of the Law. Regardless, Claimant argues that because the Department did not make him aware of his renewed eligibility for EUC benefits, his lack of knowledge somehow negates the application of Section 404(d)(2). There are, however, no provisions of the Law or regulations related thereto that allow the Service Center, a Referee, or the Board to negate the application of Section 404(d)(2).
Furthermore, we agree with the Board that the Department had no way of notifying Claimant of his eligibility for extended EUC benefits prior to the expiration of his benefits in May 2010 or prior to the activation of his pensions on June 1, 2010. The EUC program expired in May 2010, and the President did not sign into law the extension of EUC benefits until July 22, 2010. The Department had no control over the passage of federal legislation extending EUC benefits. Moreover, as noted by the Board, Claimant himself became aware of the extension in July 2010, as evidenced by the fact that he attempted to file for benefits at that time.
The Unemployment Compensation Extension Act of 2010, P.L. No. 111-205, enacted July 22, 2010.
Claimant cites Gill v. Unemployment Compensation Board of Review, 70 A.2d 422 (Pa. Super. 1950), in support of his argument that his "decision to prematurely activate his pension[s] amounted to a direct consequence of the [Department's] error," (Petitioner's brief at 12) such that he is entitled to relief from the adverse consequences of activating his pensions. In Gill, the Superior Court wrote: "[W]here a person is unintentionally misled by an officer who is authorized to act . . . , courts will relieve an innocent party of injury consequent on such misleading act, where it is possible to do so." Gill, 70 A.2d at 423. Claimant's reliance on Gill is misplaced. Gill involved a situation where the Court allowed the late filing of an appeal due to the claimant being misled by authorities as to the necessity to appeal within the statutory time period. Neither Gill nor the multitude of additional cases cited by Claimant (involving untimely appeals and the concept of nunc pro tunc appeals) involved a situation where a claimant sought to be granted benefits to which he was not statutorily entitled. Rather, those cases involved claimants seeking to be granted permission to appeal despite the expiration of the appeal period. Thus, those cases are distinguishable from the matter now before the Court. Moreover, we note that there is no evidence that the Department misled the Claimant as to his eligibility for benefits at the time he activated his pensions, because the legislation granting the extension was not enacted until approximately seven (7) weeks after Claimant activated his pensions.
Accordingly, we affirm the orders of the Board.
Other than arguing that Section 404(d)(2) of the Law should not be applied against him to offset his pensions, Claimant offers no additional reason (in either his petition for review or his brief) in support of his contention that the Board erred in affirming the determination of a non-fraud overpayment. Therefore, we need not address this issue further. --------
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 29th day of November, 2012, the orders of the Unemployment Compensation Board of Review are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge