Opinion
No. 578 C.D. 2014
07-24-2015
Lawrence V. Rossi, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Lawrence V. Rossi (Claimant) petitions for review of the March 7, 2014, order of the Unemployment Compensation Board of Review (UCBR) affirming a referee's decision to deny Claimant unemployment compensation (UC) benefits under section 509 of the Unemployment Compensation Law (Law). We vacate and remand for further proceedings.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §829. Section 509 of the Law states that "[a]ny decision made by the department or any referee or the [UCBR] shall not be subject to collateral attack as to any application claim or claims covered thereby or otherwise be disturbed, unless appealed from." 43 P.S. §829.
On July 22, 2012, Claimant, who had worked as a principal for Brandywine Heights Area School District (Employer), applied for UC benefits, beginning with waiting week ending July 28, 2012. (R., Item No. 3.) Also on July 22, 2012, Claimant filed a request to backdate his UC application for waiting week ending June 30, 2012, and compensable weeks July 7, 14, and 21, 2012. (R., Item No. 4.)
On August 7, 2012, the Department of Labor and Industry (Department) found Claimant eligible for UC benefits pursuant to section 402.1(1) of the Law, beginning with the waiting week ending July 28, 2012. (R., Item No. 3.) The Department concluded that although Employer offered Claimant a teaching position for the approaching academic quarter, the economic terms and conditions of the second academic period were substantially less than the terms and conditions of Claimant's employment in the first academic period. (Id.) Employer did not appeal. (Am. Appl. for Remission, ¶ 3.)
Added by the Act of July 6, 1977, P.L. 41, 43 P.S. §802.1(1).
Also on August 7, 2012, the Department issued a second determination denying Claimant's request to backdate his UC application. (R., Item No. 4.) The Department has no record of Claimant appealing this denial. (Am. Appl. for Remission, ¶ 6.) Claimant maintains that he appealed the backdate denial on August 22, 2012, via facsimile. (R., Item No. 9.)
On March 1, 2013, the Department conducted an oral interview with Claimant wherein Claimant stated that he started receiving sick pay on August 22, 2012, and stopped filing for UC benefits because he was neither able to nor available for work. (R., Item No. 5.)
On March 8, 2013, the Department mailed Claimant a letter "regarding your application for unemployment compensation" and requested information on Claimant's separation from employment. (R., Item No. 6.) Claimant did not respond to the letter. The Department also sent the same letter to Employer. Employer responded to the letter, stating that it received a letter from Claimant's doctor, indicating that as of August 22, 2012, Claimant was medically unable to work. However, the doctor did not provide details regarding Claimant's limitations. Employer placed Claimant on paid sick leave, using his accrued sick days through March 11, 2013, after which Claimant remained on a leave of absence. (R., Item No. 7.)
On March 25, 2013, the Department issued a notice of determination, concluding that Claimant was eligible for UC benefits under section 402(b) of the Law, 43 P.S. §802(b), but ineligible for UC benefits under section 401(d)(1) of the Law, 43 P.S. §801(d)(1), because Claimant was neither able to nor available for work due to his medical restrictions. The Department determined that Claimant was ineligible for UC benefits beginning with the compensable week ending August 25, 2012. (R., Item No. 8.)
On March 28, 2013, Claimant sent the Department a letter explaining that in the summer of 2012, he had appealed the Department's July 22, 2012, decision denying his request to backdate UC benefits but did not receive a response concerning his appeal. (R., Item No. 9.) Claimant included a copy of his August 22, 2012, petition for appeal from that determination, which Claimant had sent via facsimile, and a facsimile transmission verification report. (Id.)
The Department treated the March 28, 2013, letter as an appeal from the March 25, 2013, determination that found Claimant ineligible for UC benefits under section 401(d)(1) of the Law. (Am. Appl. for Remission, ¶ 13.) The Department sent a notice that a referee would conduct a hearing to consider Claimant's eligibility under sections 402(b) and 401(d)(1) of the Law. (R., Item No. 12.) The referee conducted a hearing on April 22, 2013. Claimant, who appeared pro se, consented to the referee determining his eligibility for benefits as of August 25, 2012. (N.T., 4/22/13, at 15.)
On April 24, 2013, the referee issued a decision and found that Claimant voluntarily accepted a demotion from principal to teacher for the 2012-13 school year. Because of a medical condition, Claimant did not return for the 2012-13 school year but did receive teacher pay through the week ending March 16, 2013. The referee also found that from August 25, 2012, until March 16, 2013, Claimant received pay from Employer, and thus, Claimant was not unemployed. The referee further determined that Claimant was ineligible for UC benefits pursuant to section 402(b) of the Law, effective August 25, 2012, because Claimant voluntarily left his employment without cause of a necessitous and compelling nature. Specifically, the referee determined that Claimant failed to supply Employer with adequate information concerning his medical leave of absence. (R., Item No. 14.) Neither party appealed the April 24, 2013, decision.
On June 7, 2013, Employer sent Claimant a letter informing Claimant that he was terminated from employment retroactive to March 12, 2013. (N.T., 10/11/13, at 35; Am. Appl. for Remission, ¶ 28.) Thereafter, on June 30, 2013, Claimant attempted to reopen his UC claim online, but the computer system precluded him from doing so. (N.T., 10/11/13, at 28; Am. Appl. for Remission, ¶ 31.) Department personnel informed Claimant that he could not file for UC benefits until his new benefit year started on July 21, 2013. (N.T., 10/11/13, at 40-41; Am. Appl. for Remission, ¶ 32.)
On July 21, 2013, Claimant filed a second application for UC benefits and requested that his August 7, 2012, prospective benefit determination be reopened for UC benefits because Employer fired Claimant effective March 12, 2013. (R., Item No. 25; N.T., 10/11/13, at 11-13.)
On August 26, 2013, the Department issued a determination denying Claimant's application, concluding that Claimant was ineligible for UC benefits under section 509 of the Law, because Claimant's July 21, 2013, application for UC benefits was based on the same separation from employment that was already ruled upon in the referee's April 24, 2013, un-appealed decision. (R., Item No. 19.)
Claimant appealed, and a referee conducted a hearing on October 11, 2013. At the hearing, Claimant's counsel argued that the referee's April 24, 2013, decision should not preclude Claimant from receiving UC benefits and that Claimant should be eligible for UC benefits beginning with waiting week ending March 17, 2013, because Claimant was discharged by Employer effective March 12, 2013, when he exhausted his sick pay. (N.T., 10/11/13, at 39, 47.) The referee issued a decision on October 29, 2013, concluding that because Claimant did not appeal the April 24, 2013, decision, it was final and binding. (R., Item No. 26.)
At the hearing, the referee also considered Claimant's appeal from two other Department determinations regarding Claimant's request to backdate UC benefits for weeks ending July 6, 13, and 20, 2013, and the Department's determination that Claimant's pension was deductible under section 404(d)(2) of the Law, 43 P.S. §804(d)(2). Claimant did not appeal those determinations to the UCBR and, as such, those issues are not before this court.
Claimant appealed to the UCBR alleging, inter alia, that the Department had improperly processed his March 28, 2013, appeal. (R., Item No. 27; Am. Appl. for Remission, ¶ 34.) On March 7, 2014, the UCBR affirmed the referee, stating that Claimant was attacking the referee's un-appealed April 24, 2013 decision, which the UCBR could not revisit. (R., Item No. 28.) Claimant petitioned this court for review. Employer, thereafter, filed an application for remission and an amended application for remission, which this court denied by order dated April 13, 2015.
On appeal, we initially address Claimant's argument that because the Department's un-appealed August 7, 2012, determination found Claimant eligible for benefits pursuant to section 402.1(1) of the Law, the Department could not thereafter issue a subsequent determination finding Claimant ineligible for benefits as of March 25, 2013. Claimant cites sections 501(a) and (e) of the Law, which provide:
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
(a) The department shall promptly examine each application for benefits and on the basis of the facts found by it shall determine whether or not the application is valid. Notice shall be given by the department in writing to the claimant and each base-year employer of the claimant, stating whether or not the claimant is eligible . . . .43 P.S. §821(a) and (e).
. . . .
(e) Unless the claimant or last employer . . . files an appeal with the [UCBR] . . . such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.
Claimant also relies on section 509 of the Law, which provides in relevant part:
Any decision made by the department or any referee or the [UCBR] shall not be subject to collateral attack as to any application claim or claims covered thereby or otherwise be disturbed, unless appealed from.
Subject to appeal proceedings and judicial review, any right, fact or matter in issue which was directly passed upon or necessarily involved in any decision of a referee or the [UCBR] or the Court and which has become final shall be conclusive for all purposes of this act and shall not be
subject to collateral attack as among all affected parties who had notice of such decision . . . .43 P.S. §829.
Here, Claimant's eligibility for benefits was different in each proceeding. Initially, on August 7, 2012, the Department found Claimant eligible for benefits pursuant to section 402.1(1) of the Law because the economic terms and conditions of the employment offered to Claimant for the second academic period were substantially less than the terms and conditions of Claimant's employment in the first academic period. Thereafter, on March 25, 2013, the Department, based on information obtained in its oral interview of Claimant and information provided by Employer, determined that Claimant was ineligible for benefits under section 401(d)(1) of the Law, because due to his health restrictions, Claimant was neither able to nor available for work. Thus, the March 25, 2013, determination did not collaterally attack the August 7, 2012, eligibility determination because they involved separate sections of the Law. See Feinsod v. Unemployment Compensation Board of Review, 624 A.2d 762, 764 (Pa. Cmwlth. 1993).
Moreover, the two decisions addressed different claim weeks, and eligibility for compensation is determined on a weekly basis. Abington School District v. Unemployment Compensation Board of Review, 533 A.2d 1100, 1104 (Pa. Cmwlth. 1987). The August 7, 2012, decision found Claimant eligible for benefits for waiting week ending July 28, 2012. The March 25, 2013, determination concluded that Claimant was ineligible for benefits beginning with compensable week ending August 25, 2012. "The Law recognizes the potential for a change in circumstances after the initial determination, which alters the appropriateness of that initial determination." Johnson v. Unemployment Compensation Board of Review, 723 A.2d 730, 732-33 (Pa. Cmwlth. 1998) (en banc). Accordingly, the UCBR did not err in issuing a subsequent determination that found that Claimant was no longer entitled to UC benefits due to a change in circumstances.
Next, Claimant contends that he is entitled to benefits as of March 12, 2013, when Employer terminated him from his position. However, we conclude that the record is insufficient to address this issue because neither the referee nor the UCBR addressed it. Moreover, the UCBR concedes that it erred in issuing its March 7, 2014, decision based on section 509 of the Law and that a hearing is necessary to determine Claimant's eligibility for benefits as of March 12, 2013.
Finally, as acknowledged by the UCBR, an evidentiary hearing is also necessary to determine whether Claimant timely appealed the Department's August 7, 2012, decision denying Claimant's request to backdate UC benefits. If Claimant's appeal was timely, then the UCBR shall decide the merits of Claimant's request to backdate benefits for waiting week ending June 30, 2012, and compensable weeks July 7, 14, and 21, 2012.
Accordingly, we vacate the UCBR's order that denied Claimant benefits based on section 509 of the Law and remand to the UCBR to:
hold additional proceedings with notice to all parties to determine 1) Claimant's eligibility for benefits as of March 12, 2013, when his termination was effective, and if found eligible, 2) the impact, if any, of Claimant's prior disqualification under [s]ection 402(b) [of the Law] and whether it needs to be purged under [s]ection 401(f) of the
Law. In addition, the [UCBR] will request the Department to process Claimant's appeal from the Department's August 7, 2012, determination denying him backdating.(Am. Appl. for Remission, ¶ 38.)
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 24th day of July, 2015, we hereby vacate the March 7, 2014, order of the Unemployment Compensation Board of Review and remand for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge