Opinion
No. 2165 C.D. 2012
06-05-2013
Cindy A. Miller, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Cindy A. Miller (Claimant) petitions pro se for review of the October 15, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for unemployment benefits pursuant to sections 401(a), 404(c), and 4(l)(4)(8)(d) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§801(a), 804(c), and 753(l)(4)(8)(d). Section 401(a) of the Law provides that unemployment benefits shall be payable to any employee who is or becomes unemployed and who has, within her base year, been paid "wages for employment" as required by section 404(c) (rate and amount of compensation) of the Law. Section 4(l)(4)(8)(d) defines the word "employment" as not including work "in a facility conducted for the purpose of carrying out a program of . . . providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such . . . remunerative work." 43 P.S. §753(l)(4)(8)(d).
Claimant was employed by the Cambria County Association for the Blind and Handicapped, Inc. (Employer) from August 25, 2010, until January 9, 2012, as a sheltered workshop rope assembler earning a piece rate. (Board's Findings of Fact (F.F.) No. 3.) Claimant earned $18,580.97 from her work for Employer during 2011. (F.F. No. 5.) Employer primarily functions to provide employment for people with disabilities whose earning capacity is impaired and who cannot enter the competitive labor market, and it receives federal and state funding to do so. (F.F. Nos. 6-9.) At the time she was hired, Claimant had a physical disability involving a torn leg muscle and a missing toe. (F.F. No. 10.) Claimant was laid off by Employer on January 9, 2012.
Both the referee and the Board found that Claimant was issued a W-2 form in the amount of $18,588.97 by Employer for 2011. However, Claimant testified and the record reflects that Claimant earned $18,580.97. We conclude that this minor error was a typographical mistake and is harmless error.
Claimant applied for unemployment benefits beginning January 8, 2012. (F.F. No. 1.) On her application for unemployment benefits, Claimant established a base-year period from October 1, 2010, through September 30, 2011, during which her only employment was as a sheltered workshop rope assembler at a piece rate for Employer. (F.F. Nos. 2-4.) On January 13, 2012, the local service center issued a notice advising Claimant that she was ineligible for benefits because she had not earned wages from which to establish a benefit rate because her work for Employer did not qualify as "employment" under the Law.
Claimant, then represented by counsel, appealed the service center's determination. At a hearing on March 22, 2012, the referee took evidence examining the timeliness of Claimant's appeal. The referee held a second hearing on April 11, 2012, to address the merits. In support of her claim, Claimant testified that she worked for Employer during the relevant period, earned $18,580.97 in wages, and was laid off. (Notes of Testimony (N.T.) at 6.)
During proceedings before the agency, Claimant was represented by Jerome J. Kaharick, Esq.
Sherry Hofecker (Hofecker), Employer's Assistant Director of Rehabilitation, testified that Employer is a sheltered workshop which employs people with disabilities and that Employer receives state and federal funding. Hofecker testified that Employer does not pay into Pennsylvania's unemployment compensation fund for its disabled employees. Hofecker also testified that she informed Claimant that she would be ineligible for unemployment benefits if she was no longer employed by Employer for any reason and that Claimant signed forms acknowledging her ineligibility.
By decision dated April 12, 2012, the referee found that Claimant was employed as a participant in Employer's sheltered workshop program and that Employer provided her remunerative work for a physical disability. The referee held that Claimant's employment with Employer was exempt under section 4(1)(4)(8)(d) of the Law, and, therefore, Claimant had no earnings from employment for the purpose of establishing eligibility under sections 401(a) and 404(c) of the Law. The referee also held that Claimant timely appealed the service center's determination.
Claimant appealed the referee's order to the Board. By order dated July 19, 2012, the Board remanded the matter to the referee to conduct another hearing for the purposes of establishing: (1) whether Employer operates a facility for the purpose of employing individuals whose earning capacity is impaired by age, physical or mental disability, or injury; (2) whether Employer employs individuals who, because of their impairment, cannot be readily absorbed in the competitive labor market; and, (3) whether Employer has evidence to support any contentions that Claimant's employment was exempt as non-employment from the provisions of the Law providing that unemployed claimants are entitled to unemployment benefits.
Although Claimant asserted that the referee ignored testimony and that the findings of fact were not supported by the record, Claimant did not identify what testimony was allegedly ignored or which findings are fact were allegedly inaccurate. In addition, although Claimant's counsel initially advised the Board that he would submit a brief in support of her appeal, he later indicated that he would not and asked the Board to decide the case on the record. Thus, Claimant failed to challenge any findings or raise any legal issues on appeal to the Board.
The referee conducted a remand hearing on August 27, 2012. At this hearing, John Stahl (Stahl), Employer's Director of Rehabilitation, testified that Employer is certified by the federal Department of Labor and Industry as a vocational rehabilitation facility and licensed by the Pennsylvania Department of Public Welfare to operate as a vocational rehabilitation facility. (Employer's Exhibits 2, 3.) Stahl further testified that Employer employs disabled individuals who would otherwise be unemployable, and it certifies that a person is disabled before he or she is hired. Stahl testified that Employer contacted Claimant's physician prior to hiring Claimant and that Claimant's physician certified that Claimant had a severe disability that would preclude any type of gainful employment. (Employer's Exhibit 5.) Stahl also testified that Employer is a private, non-profit corporation and that its disabled workers, like Claimant, are employed in its workshop. Claimant did not testify or present any evidence in rebuttal.
By order dated October 15, 2012, the Board affirmed the referee's decision that Claimant was ineligible for benefits. The Board specifically concluded that the wages Claimant earned through her employment with Employer should not be included in her base-year wage calculation under sections 401(a) and 404(c) of the Law because her employment was exempted non-employment under section 4(1)(4)(8)(d) of the Law. The Board also affirmed the referee's determination that Claimant's appeal was timely.
Claimant filed a petition for review with this Court, arguing for the first time that her civil rights were violated because she was laid off and replaced by non-disabled workers. This argument is not addressed in Claimant's brief. Instead, in her brief, Claimant argues, also for the first time, that she is entitled to benefits because she worked for competitive wages and, therefore, received wages for employment for purposes of the Law.
Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Claimant argues that her yearly earnings, when divided by the number of hours a full-time employee works in a year, amount to $8.94 an hour, which is above the minimum wage in Pennsylvania of $7.25 an hour and, therefore, constitute wages paid for competitive employment rather than sheltered work.
Issues raised for the first time on appeal are waived. 2 Pa.C.S. §703; Pa.R.A.P. 551; Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (holding that an allegation of error not raised either before the referee or before the Board is waived for purposes of appeal); Wing v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981) (holding that an issue is waived if it is not raised before the administrative agency but is first raised before the Commonwealth Court). Neither of the issues presented to this Court was raised before the Board, and, thus, both are waived on appeal.
Similarly, issues raised in a petition for review but not addressed in an appellate brief are waived, and issues argued in a brief but not raised in a petition for review or fairly comprised therein are waived. McDonough v. Unemployment Compensation Board of Review, 670 A.2d 749 (Pa. Cmwlth. 1996) (holding that an issue set forth in the claimant's petition for review but not addressed in his brief was waived, and, relying on Pa.R.A.P. 1513, declining to consider an issue argued in the claimant's brief that was not raised in his petition for review). Therefore, even if Claimant had raised these issues before the Board, we would decline review.
Pa.R.A.P. 1513 provides that the petition for review must contain a general statement of the objections to the order. The Court in McDonough stated that "this Court will decline consideration of an issue contained in a petitioner's brief when such issue was not raised in the stated objections in the petition for review, nor fairly comprised therein in accordance with Pa.R.A.P. 1513." McDonough, 670 A.2d at 750.
Because Claimant failed to preserve any issues for our review, we dismiss her appeal.
Even if Claimant's arguments were presented for our review, we would affirm the Board's decision.
As noted above, section 4(l)(4)(8)(d) of the Law defines the word "employment" as not including work "in a facility conducted for the purpose of carrying out a program of . . . providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such . . . remunerative work." 43 P.S. §753(l)(4)(8)(d).
Because, under this provision, wages earned is not a factor in determining whether a claimant's work constitutes "employment" under the Law, the amount of wages that Claimant received from Employer is irrelevant. Moreover, Claimant does not challenge the Board's findings that Employer is a facility conducted for the purpose of providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market; and that Claimant was hired after she was medically certified as disabled. Therefore, the Board properly held that Claimant's work for Employer was exempted nonemployment under section (l)(4)(8)(d) of the Law rendering Claimant ineligible for benefits under sections 401(a) and 404(c) of the Law.
Furthermore, Claimant did not introduce any evidence to support her civil rights claim before the referee or the Board.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 5th day of June, 2013, Cindy A. Miller's petition for review is dismissed.
/s/_________
PATRICIA A. McCULLOUGH, Judge