Opinion
No. 1856 C.D. 2012 No. 1857 C.D. 2012
06-06-2013
Justin S. Myers, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Justin S. Myers (Claimant) petitions for review, pro se, of the August 15, 2012, orders of the Unemployment Compensation Board of Review (UCBR) affirming the decisions of a referee denying Claimant unemployment compensation (UC) benefits. The UCBR concluded that Claimant was ineligible for UC benefits under section 402(b) of the Unemployment Compensation Law (Law) because he quit his employment with Bliley Technology Inc. (Employer) without cause of a necessitous and compelling nature and that Claimant was subject to a fault overpayment and penalty weeks pursuant to sections 804(a) and 801(b) of the Law. We reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that an employee shall be ineligible for benefits during any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. §802(b).
43 P.S. §874(a).
43 P.S. §871(b).
Claimant started working for Employer as a full-time processor in 2006. (UCBR's Decision Nos. B-540333 and B-540334, Findings of Fact, No. 1.) In July 2009, Claimant filed for partial UC benefits because of decreased working hours. (Id., Findings of Fact, No. 4.)
On April 30, 2010, Claimant voluntarily terminated his employment to move out of state. (Id., Findings of Fact, No. 5.) Claimant filed for UC benefits, indicating to the UC service center that he was unemployed due to a lack of work. (Id., Findings of Fact, No. 6.) Claimant began receiving benefits. (Id., Findings of Fact, No. 7.)
On September 13, 2010, pursuant to section 302(a) of the Law, Employer filed two separate requests for relief from charges with the Department of Labor and Industry, a mechanism by which an employer may request that benefits it paid not be charged against its UC reserve account. On the forms, Employer indicated that Claimant quit his employment because he was moving out of state. On March 27, 2012, the local service center issued notices of determinations concluding that: (1) Claimant was ineligible for UC benefits pursuant to section 402(b) of the Law, (2) Claimant received a fault overpayment of benefits under section 804(a) of the Law, and (3) Claimant was subject to penalty weeks under section 801(b) of the Law. Claimant appealed to the referee, who conducted a hearing and affirmed the determinations of the local service center.
Added by section 4 of the Act of May 26, 1949, P.L. 1854, as amended, 43 P.S. §782(a). "[A]n Employer seeking relief from charges is requesting a tax exemption. Thus, strict construction is required." First National Bank of Bath v. Unemployment Compensation Board of Review, 619 A.2d 801, 803 (Pa. Cmwlth. 1992).
Claimant appealed to the UCBR, which credited the testimony of Employer's witness and concluded that Claimant was ineligible for benefits under section 402(b) of the Law. The UCBR also applied the fault overpayment and penalty week provisions of sections 804(a) and 801(b) of the Law. Specifically, the UCBR determined that Claimant received a fault overpayment of $2,604 for claim weeks ending May 8, 2010, through July 24, 2010, subject to recoupment, and also imposed a 14-week penalty. (UCBR's Decision No. B-540333 at 3.) The UCBR further concluded that Claimant received a fault overpayment of $4,940 for claim weeks ending August 7, 2010, through January 29, 2011, subject to recoupment, and imposed a 20-week penalty. (UCBR's Decision No. B-540334 at 3.) Claimant petitioned this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. On November 14, 2012, this court issued an order granting the UCBR's request to consolidate the petitions for review.
Procedurally, we observe that after his separation from Employer, Claimant applied for and received UC benefits. Based on the record before us, nothing indicates that Employer appealed the award of benefits. Rather, Employer initiated the matters before us by filing two requests for relief from charges. However, the filing of a request for relief from charges is a separate and distinct action from the filing of an appeal from an eligibility determination. A request for relief from charges will not serve as an appeal from an eligibility determination. First National Bank of Bath v. Unemployment Compensation Board of Review, 619 A.2d 801, 804 (Pa. Cmwlth. 1992).
We note that the UCBR's brief mischaracterizes the procedural history of this case, insinuating that these proceedings commenced when Claimant filed of an application for UC benefits that the local job center denied. (UCBR's Br. at 2.) Nowhere in its brief does the UCBR mention Employer's requests for relief from charges. --------
In determining that Claimant was ineligible for benefits under section 402(b) of the Law, the UCBR treated Employer's request for relief from charges as an appeal from an eligibility determination. This it cannot do. Employer's failure to appeal Claimant's receipt of UC benefits precludes Employer from doing so now in a request for relief from charges. Thus, the UCBR erred in concluding that Claimant was ineligible for benefits under section 402(b) of the Law and imposing a fault overpayment and penalty weeks based thereon.
Accordingly, we reverse the orders of the UCBR.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge President Judge Pellegrini concurs in the result only.
ORDER
AND NOW, this 6th day of June, 2013, we hereby reverse the August 15, 2012, orders of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge