No. 1848 C.D. 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Amy Hall (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated August 2, 2012. The Board affirmed with modification a Referee's decision, thereby denying Claimant benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) and denying Claimant emergency unemployment compensation (EUC) benefits pursuant to Section 4001 of the Emergency Unemployment Act of 2008 (EUC Act of 2008). The Board also imposed a fault overpayment under Section 4005 of the EUC Act of 2008. For the reasons set forth below, we affirm the Board's order.
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 is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.
Title IV of the Supplemental Appropriation Act of 2008, Public Law 110-252, 122 Stat. 2323, Section 4001, 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 unemployment compensation benefits from Pennsylvania, another state, the federal government, or Canada may be eligible for EUC benefits. Id. Eligibility requirements for receipt of regular unemployment compensation benefits are also applicable to EUC benefits, along with additional requirements imposed by the EUC Act of 2008. Id.
26 U.S.C. § 3304 note. 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.
Claimant applied for and began receiving unemployment compensation benefits after being separated from her employment as a certified nursing assistant (CNA) on a per-diem basis with Family to Family Healthcare (Employer). Claimant asserted lack of work as the reason for her separation from employment. The Erie UC Service Center (Service Center) issued a notice of determination, denying benefits pursuant to Section 402(b) of the Law and Section 4001(d)(2) of the EUC Act of 2008. The Service Center imposed a fraud overpayment pursuant to Section 4005 of the EUC Act of 2008 and assessed penalty weeks pursuant to Section 801(b) of the Law. Claimant appealed the determination.
Section 801(b) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 871(b). Section 801(b) of the Law provides:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act . . . may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week of improper payment. . . .
A Referee conducted a hearing, at which both Claimant and Employer provided testimony. Following the hearing, the Referee issued a decision and order, affirming the Service Center's denial of benefits based on Section 402(b) of the Law and affirming the Service Center's determination of fraud overpayment. The Referee, however, modified the determination by removing the penalty weeks. In so doing, the Referee issued the following findings of fact:
Due to a conflict regarding the nature of Claimant's separation from employment, i.e., whether there was a lack of work for Claimant or whether she abandoned her employment, the Referee considered both Section 402(b) of the Law, relating to voluntarily terminating employment without cause of a necessitous and compelling nature, and Section 402(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), relating to willful misconduct.
1. The Claimant was employed with Family to Family Healthcare as a Certified Nursing Assistant on a per-diem basis earning $9.00 to $10.00 per hour from December 21st, 2011, until January 11th, 2012, her last day of work.
2. The Employer is an agency that arranges for short-term assignments for CNAs, with approximately 25 active CNAs as employees.
3. In late December 2011, the Claimant performed a job for three days for the Employer, but then requested a change in assignment due to the driving distance of that case.
4. The Claimant accepted a second case with the Employer, which she agreed to try despite the lengthy driving distance.
5. On January 11, 2012, the second day of that assignment, the Claimant contacted the Employer to let them know the driving distance was too far for that assignment as well.
6. The Employer called the Claimant and left voicemails on January 13th, January 17th, January 22nd, and February 1st, 2012, all offering assignments to the Claimant.
7. The Claimant did not contact the Employer back to discuss any of those offers.
8. On February 15th, 2012, the Employer contacted the Claimant and left her a voicemail, inquiring whether or not she wanted to continue working for the Employer.
9. The Claimant never again contacted the Employer.
10. The Employer terminated the Claimant in their system due to job abandonment on February 20th, 2012.
11. The Claimant filed an application for unemployment compensation benefits with an effective date of October 31st, 2010, establishing a weekly benefit amount of $288.00 with a partial benefit credit of $116.00 for a combined amount of $404.00.
12. The Claimant filed for and received EUC benefits under that claim totaling $4,320.00 for claim
weeks ending January 14th through April 21st, 2012.
13. The Claimant reported her reason for the separation from employment as "lack of work" to the UC Service Center.
(Certified Record (C.R., Item No. 13.)
The Referee reasoned, in part:
In the instant case, it is clear that the Claimant simply stopped maintaining contact with the Employer. The Employer contacted the Claimant on five occasions for additional assignments after the Claimant had terminated two assignments after less than three days due to driving distance. The Claimant made no effort to return any of those calls to the Employer, nor did she attempt to contact the Employer in any manner after she quit the final placement on January 11, 2012. As such, the Referee finds that the Claimant abandoned her position.
. . .
There was no evidence presented to establish that the Claimant had cause of a necessitous and compelling nature to voluntarily terminate the employment. As such, benefits are denied in accordance with the provisions of Section 402(b) of the Law.
. . .
Here, as the Claimant has been determined to be ineligible for EUC benefits, the EUC benefits received for the claim weeks ending January 14th through April 21st, 2012, have been overpaid. Since the Claimant abandoned the position, yet reported her separation as "lack of work", the Referee finds the fraud provisions of Section 4005(a) of the [EUC Act] of 2008 appropriate to govern the recoupment of those benefits.
Claimant appealed to the Board. The Board affirmed, adopting the Referee's findings of fact and conclusions of law and incorporating them into its decision. (C.R., Item No. 15.) The Board specifically noted that it resolved the conflicts in testimony in favor of Employer and rejected Claimant's testimony that she did not receive messages from Employer.
Claimant filed a request for reconsideration with the Board, requesting that the Board consider additional evidence in the form of telephone records. (C.R., Item No. 16.) Claimant took the position that the records established that Employer did not attempt to call her on the days it stated, although Claimant provided no further explanation as to the information contained in the telephone records. By order dated September 6, 2012, the Board denied the request for reconsideration. (C.R., Item No. 18.) Claimant did not appeal the Board's denial of the request for reconsideration to this Court.
On appeal to this Court, Claimant essentially argues that the Board erred in crediting Employer's testimony that it attempted to contact Claimant regarding additional assignments and continued employment over Claimant's testimony that Employer never called her after she requested a new assignment. In support of her argument, Claimant contends that the telephone records that she submitted to the Board with her request for reconsideration establish that Employer's witness lied or made false statements regarding attempts made to contact Claimant. As a result, the Board should have credited her testimony and awarded her benefits with no determination of fault overpayments.
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. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d 1159, 1161 (Pa. Cmwlth. 1992).
In an unemployment compensation case, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). In making the credibility determinations, the Board "may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982). The appellate court's duty is to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). Claimant's argument essentially asks the Court to overturn the fact finder's credibility determination and reweigh the evidence. Here, the Board chose to accept the testimony of Employer as credible when it adopted and incorporated the Referee's findings and conclusions. We must decline, therefore, Claimant's invitation to revisit the Board's credibility determinations and reweigh the evidence on appeal.
With regard to Claimant's contention that the Board should have found in her favor based upon the telephone records that she submitted with her request for reconsideration, we note that Claimant did not appeal the Board's denial of her request for reconsideration. As a result, we cannot consider the telephone records at issue (as they are not properly part of the record before this Court), and we cannot consider whether the Board's failure to grant the request for reconsideration constituted an abuse of discretion.
The Board may grant a request for reconsideration or rehearing when good cause to do so exists. 34 Pa. Code §101.111(b). In determining if good cause exists, the Board considers if the party requesting the reconsideration "has presented new evidence or changed circumstances or whether it failed to consider relevant law." Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). An agency's denial of reconsideration is an appealable order. Keith v. Dep't of Pub. Welfare, 551 A.2d 333, 410-11 (Pa. Cmwlth. 1988). Because the decision to grant or deny a request for reconsideration is a matter of administrative discretion, the Court's review is limited to a determination of whether the agency committed an abuse of discretion. Id. at 411. --------
Accordingly, we affirm the order of the Board.
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 31st day of May, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge