Opinion
No. 1155 C.D. 2011
02-07-2012
Yolonda Marsh, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Pro se claimant, Yolonda Marsh, petitions for review of the order of the Unemployment Compensation Board of Review that affirmed the referee's determination that benefits should be denied for the six-week period where Marsh failed to report wages earned while receiving benefits and imposition of a fraud overpayment in the amount of $1530. We affirm in part and reverse in part.
There does not appear to be any dispute that while receiving benefits pursuant to the Emergency Unemployment Act of 2008 (EUC Act), Marsh was employed by and received wages from Insurance Overload Staff, Inc. Specifically, over a six week period encompassing claim weeks ending August 23, 2008, through September 27, 2008, Insurance Overload Staff paid Marsh approximately $2331 in wages. Marsh failed to report these earnings to the unemployment compensation authorities. Upon learning that Marsh had unreported earnings, the Department of Labor & Industry, Office of UC Benefits sought further information from both Insurance Overload Staff and Marsh, upon which a notice of determination of overpayment of benefits was issued, finding that Marsh was not entitled to benefits received because she failed to report employment while filing for benefits. The Department also imposed a fraud overpayment under Section 4005 of the EUC Act.
Title IV of the Supplemental Appropriations Act of 2008, Act of June 30, 2008, P.L. 110-252, as amended, Sections 4001-4007, 26 U.S.C. § 3304 Note.
A hearing before a referee followed; Marsh did not attend, however. Based upon the employer's evidence of earnings during the time period at issue and the lack of evidence that Marsh had reported such earnings, the referee concluded that Marsh failed to make a valid application as required by Section 401(c) of the Unemployment Compensation Law, 43 P.S. § 801(c). The referee also concluded that a fraud overpayment was appropriate under the EUC Act. Marsh appealed and the Board affirmed, adopting the referee's findings and conclusions.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 401(c) provides that a claimant must make her "claim for compensation in the proper manner and on the form prescribed by the department." This court has held that Section 401(c) requires a claimant to disclose "all pertinent information," that is, information which would affect a "claimant's eligibility for benefits or the amount of benefits to which the claimant is entitled." Chishko v. Unemployment Comp. Bd. of Review, 934 A.2d 172, 176 (Pa. Cmwlth. 2007) (internal quotations and citations omitted). The failure to report wages earned constitutes a violation of Section 401(c). Id. at 177. Moreover, a violation of Section 401(c) results in total ineligibility. Id.
In doing so, the Board also denied Marsh's request for a remand due to her alleged late receipt of the hearing notice.
Construing Marsh's appeal papers liberally, the only issue preserved for appellate review is whether the imposition of a fraud overpayment is proper. Section 4005 provides:
While Marsh does not specifically object to the imposition of a fraud overpayment, she avers in both her petition for review and appellate brief that there was a "miscommunication" about the procedure for calling in and reporting employment. She also avers that she was given different information by different unemployment representatives. For instance, she states:
I really felt like it was very lack of communicaton between me and the customer service person. I did not no how it work when you get and job and collecting benefits that's why I call and ask question to see what the procedure was. She told me to stop or if you are working full-time hrs you suppose to stop calling and if it is part time. You can just put hours in never was told that but I no about it now. When I found out I was doing it wrong they sent me letters stating that they will be stopping my checks for about 3 or 4 month which they did. So when my checks was stop and I was not receiving nothing at the time. That's when I call back and talk to someone and this person (cust svcs) told me something about the procedure. Than the other person explain to me how the sistuaton work (procedure.) As long as I talk to different cust svcs people I sometime got the same procedure or I just felt like it was not explain propley to me. . . .
(a) In general.- If an individual knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such false statement or representation or of
such nondisclosure such individual has received an amount of [EUC] under this title to which such individual was not entitled, such individual-
(1) shall be ineligible for further [EUC] under this title in accordance with the provisions of the applicable State unemployment compensation law relating to fraud in connection with a claim for unemployment compensation; and
(2) shall be subject to prosecution under section 1001 of title 18, United States Code.
(b) Repayment.- In the case of individuals who have received amounts of [EUC] under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such [EUC] to the State agency, except that the State agency may waive such repayment if it determines that-
(1) the payment of such [EUC] was without fault on the part of any such individual; and
(2) such repayment would be contrary to equity and good conscience.
(c) Recovery by State agency.-
(1) In general.- The State agency may recover the amount to be repaid, or any part thereof, by deductions from any [EUC] payable to such individual under this title or from any unemployment compensation payable to such individual under any State or Federal law administered by the State agency or under any other State or Federal law administered by the State agency which provides for the payment of any assistance or allowance with respect to any week of unemployment, during the 3-year period after the date such individuals received the payment of the [EUC] to which they were not entitled, except that no single deduction may exceed 50 percent of the weekly benefit amount from which such deduction is made.
(2) Opportunity for hearing.- No repayment shall be required, and no deduction shall be made, until a
determination has been made, notice thereof and an opportunity for a fair hearing has been given to the individual, and the determination has become final.Sections 4005(a), (b), and (c) of the EUC Act, 26 U.S.C. § 3304 Note. Here, the referee stated:
The also record [sic] shows that claimant did not report the wages she earned while on active EUC claims status although she received benefits. Claimant's failure to follow claims in the proper manner renders her not eligible for benefits for such weeks.Referee's decision and order at 2. However, in affirming the imposition of a fraud overpayment under Section 4005(a), neither the referee nor the Board found that Marsh "knowingly" made a "false statement or representation of a material fact" or "knowingly . . . failed . . . to disclose a material fact." See Section 4005(a) (emphasis added). Both of the underlying decisions fail to address Marsh's state of mind when making her claim for benefits.
Under the EUC Act of 2008, if the claimant receives benefits due to failure to provide the proper information, a fraud overpayment is appropriate. In the instant case, claimant failed to report her wages as required by the law and therefore she is not entitled to the benefits she received during the claim weeks at issue.
Similarly, Section 804 of the Law provides that, "[a]ny person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him and interest . . . ." 43 P.S. § 874. In Chishko, this court opined that the word "fault" in Section 804(a) connoted "an act to which blame, censure, impropriety, shortcoming or culpability attaches." 934 A.2d at 177 (internal quotations omitted). --------
As this court has previously noted: "To find fault, the Board must make some findings with regard to a claimant's state of mind." Chishko v. Unemployment Comp. Bd. of Review, 934 A.2d 172, 177 (Pa. Cmwlth. 2007) [citing Kelly v. Unemployment Comp. Bd. of Review, 840 A.2d 469, 473 (Pa. Cmwlth. 2004)]. Absent such findings, the Board's order establishing a fraud overpayment must be reversed, and the case remanded for assessment under Section 4005(b) of the EUC Act.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 7th day of February, 2012, the order of the Unemployment Compensation Board of Review is reversed and remanded in part and affirmed in part. The Board's imposition of a fraud overpayment is reversed and the case is remanded for assessment under Section 4005(b) of the Emergency Unemployment Act of 2008, 26 U.S.C § 3304 Note; in all other respects, the Board's order is affirmed.
Jurisdiction relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge
Marsh's appellate brief, Statement of the Case (mistakes not noted). We construe her petition for review and brief to indicate that she inadvertently failed to report her earnings for the weeks at issue. As noted below, imposition of a fraud overpayment requires a finding of intent. Therefore, in light of Marsh's averments of mistake and misunderstanding, we will consider the issue.