86 A.3d 294

Jeffrey T. CASTELLO, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. Jeffrey T. Castello, Petitioner v. Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Nov. 15, 2013.

Decided Dec. 9, 2013.

Publication Ordered Feb. 6, 2014.

*295Thomas M. Castello, Pittsburgh, for petitioner.

Erin B. Lokhandwala, Assistant Counsel, Harrisburg, for respondent.

BEFORE: PELLEGRINI, President Judge, and COHN JUBELIRER, Judge, and FRIEDMAN, Senior Judge.

PELLEGRINI, President Judge.

Jeffrey T. Castello (Claimant) petitions for review of the orders of the Unemployment Compensation Board of Review (Board) affirming two decisions of a Referee, one of which found Claimant ineligible for Unemployment Compensation (UC) benefits under Section 401(c) of the Unem*296ployment Compensation Law (Law);1 imposing a fault overpayment under Section 804(a) of the Law;2 and assessing penalty weeks under Section 801(b) of the Law;3 and the other denying Emergency Unemployment Compensation (EUC) benefits under Section 4001(b) of Title IV of the Supplemental Appropriations Act of 2008 (EUC Act);4 and imposing a non-fraud overpayment under Sections 4005(b) and (e) of the EUC Act.5 We affirm.

Claimant filed an application for Pennsylvania benefits effective May 2011. During the claim weeks ending September 24, 2011, through October 29, 2011, Claimant reported $0.00 in earnings for each of the weeks and he received UC benefits totaling $3,384.00 for all of the weeks. However, Claimant was also paid weekly wages from Day & Zimmerman NPS, Inc. (Employer) ranging between $1,277.98 and $2,417.80 during those weeks, totaling $10,940.55. In addition, for the claim weeks ending December 24, 2011, through March 24, 2012, Claimant received $8,092.00 in EUC benefits. However, during that period, Claimant was also entitled to receive EUC benefits in Ohio totaling $2,280.00 based on a May 2010 application for benefits.

Based on the foregoing, a UC Service Center issued determinations: (1) denying *297UC benefits for the claim weeks ending September 24, 2011, through October 29, 2011; (2) imposing a fault overpayment of $3,384.00 in UC benefits based on his failure to make a valid claim for benefits for those claim weeks; (3) imposing a penalty of eight weeks of benefits based on the overpayment of benefits; (4) denying EUC benefits for the claim weeks ending November 12, 2011, through March 24, 2012, based on his remaining eligibility for Ohio EUC benefits; and (5) imposing a non-fraud overpayment of the $8,092.00 in EUC benefits.

Claimant appealed the determinations, but neither Claimant nor Employer appeared at the Referee’s hearing. Claimant’s counsel appeared at the hearing, and Claimant’s claim file was admitted into evidence without objection.

The Referee issued two decisions disposing of the appeals. With respect to Claimant’s eligibility for UC benefits, the Referee found that Claimant earned amounts between $1,277.98 and $2,417.80 for the weeks ending September 24, 2011, through October 29, 2011; and that he reported $0.00 earnings and received $3,384.00 in UC benefits for the weeks at issue. In finding Claimant ineligible, the Referee explained:

Section 401(c) of the Law provides that compensation shall be payable to a claimant if he had been employed and has made a valid application for benefits with respect to the benefit year for which compensation is claimed and has made a claim for compensation in the proper manner and on the form prescribed by the department. Where a claimant has intentionally failed to report his earnings, it has been determined that the claimant did not file a valid claim for benefits for the weeks at issue. The claimant was not present to testify whether or not he intentionally failed to report his earnings. However, the Referee takes judicial notice of the fact that, whether a claimant files his claims by telephone through the PAT system or over the Internet, the system asks the claimant whether he has worked for the weeks at issue. Only if the claimant states that he has not worked for those weeks will the system report $0.00 in earnings. Accordingly, the Referee finds that the claimant intentionally failed to report his earnings. The claimant did not file valid applications for benefits for the weeks at issue.

(Appeal No. 12-09-H-8782 at 2). Claimant appealed, and adopting and incorporating the Referee’s findings and conclusions, the Board added:

Additionally, the record does not contain sufficient competent testimony or evidence to contradict the Referee’s determination that, by his own fault of intentionally failing to report his earnings for the weeks ending September 24, 2011, through October 29, 2011, the Claimant received a total of $3,384.00 in benefits to which he was not entitled. The Referee properly imposed a fault overpayment and eight week penalty....

(Decision No. B-546682).

The Referee likewise affirmed the Service Center’s denial of EUC benefits and the Board affirmed on appeal. The Board found as fact that Claimant received $8,092.00 in EUC benefits for the weeks ending December 24, 2011, through March 24, 2012; and that the Department ruled that Claimant was ineligible for the com-pensable weeks ending November 12, 2011, through March 24, 2012, because he had eligibility on a prior UC claim in Ohio. As the Board explained, in relevant part:

Neither the Referee nor the Board has jurisdiction over unemployment compensation claims in Ohio. Moreover, as the *298Referee noted, the record contains no information regarding the amount of benefits, if any, that the claimant may be owed from Ohio. The claimant is disqualified from receiving benefits under Section 4001(b) of the [EUC Act] because he did not exhaust his regular UC benefits.

(Decision No. B-546684). Claimant then filed the instant appeals of the Board’s orders.6

Claimant first argues that the Board erred in affirming the fault overpayment of UC benefits because there is no evidence that he intentionally failed to report the wages that he was paid while receiving the UC benefits, and the Referee’s use of judicial notice to supply the facts to support such a finding of fault violates his due process rights.7

Section 804(a) of the Law provides that if a person receives unemployment compensation benefits by reason of his fault, he will be responsible for repaying the amount received in error plus interest. “The word ‘fault’ within the meaning of Section 804(a) of the Law connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches.” Amspacher v. Unemployment Compensation Board of Review, 84 Pa.Cmwlth. 447, 479 A.2d 688, 691 (1984). Conduct that is designed to improperly and intentionally mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. Greenawalt v. Unemployment Compensation Board of Review, 117 Pa.Cmwlth. 96, 543 A.2d 209, 211 (1988). For example, an intentional misstatement on an application for benefits can support a finding of fault under Section 804(a). Matvey v. Unemployment Compensation Board of Review, 109 Pa.Cmwlth. 591, 531 A.2d 840, 844 (1987). In order to find fault, the Referee or Board must make some findings with regard to a claimant’s state of mind. Greenawalt.

Truthfully divulging all pertinent information regarding one’s employment status is required so the unemployment compensation authorities may make an intelligent and well-informed decision as to a claimant’s eligibility for benefits and proper computation of such benefits. Amspacher, 479 A.2d at 690. This requirement, which is imposed upon all claimants, “assists in fulfilling the Commonwealth’s duty to protect the unemployment compensation fund against dissipation by those *299not entitled to benefits under the law.” Id. at 691.

It is undisputed that the certified record in this case shows that none of the $10,940.55 in wages that Claimant earned during the weeks ending September 24, 2011, through October 29, 2011 appears in his claim record. Nevertheless, Claimant asserts that because he never appeared at the hearing, there is not substantial evidence regarding his state of mind to support the Board’s finding of fault under Section 804(a). To the contrary, the claim record with zero reported income, coupled with the Referee’s notice of how zero reported income would appear in Claimant’s claim record, provides ample substantial evidence to support the finding that Claimant intentionally failed to report his earnings.

Moreover, it was not improper for the Referee to take judicial notice of the manner in which a claimant’s income is reported in the claim process and such notice did not violate Claimant’s due process rights. See Gleeson v. State Board of Medicine, 900 A.2d 430, 440 (Pa.Cmwlth.2006), appeal denied, 591 Pa. 685, 917 A.2d 316 (2007) (“[PJursuant to Section 35.173 of the General Rules of Administrative Policy and Procedure, 1 Pa.Code § 35.173, the agency head may take official notice of such matters as might be judicially noticed by the Courts of the Commonwealth. Here, the Board properly took judicial notice of its own records and, therefore, in so doing, did not violate Licensee’s due process rights.... ”); Seibert v. Unemployment Compensation Board of Review, 44 Pa.Cmwlth. 506, 403 A.2d 1369, 1371 (1979) (“[Ajppellant argues ... that the referee impermissibly took judicial notice of Bureau procedures regarding the recordation of claimant visits without any testimony by any Bureau representative as to such procedure and that she was therefore denied an impartial tribunal. We believe, however, that judicial notice is generally exercised when the fact is so well known that formal introduction of evidence in support of it is unnecessary. We also believe that Bureau employees do make notations on claimants’ cards when the required reporting visits are made and that this is a fact of which judicial notice may be taken.”) (citations omitted).

Finally, Claimant argues that the Board erred in affirming a non-fraud overpayment of Pennsylvania EUC benefits because it was based on an erroneous finding that he was entitled to receive additional Ohio UC benefits where the record shows that he was actually entitled to only receive additional Ohio EUC benefits.

However, as this Court has previously explained:

In the present matter, there are two benefit years — 2010 and 2012 — at issue. The United States Department of Labor (USDOL) published specific guidelines to determine which EUC benefits are to be paid in cases involving multiple benefit years. UIPL No. 23-08, Changes 1 and 3 provide that a claimant who exhausts benefits from a regular Unemployment Compensation claim must be paid any remaining benefits from a previously established EUC claim before benefits will be paid on an EUC claim resulting from the exhaustion of the most recent regular UC claim. UIPL No. 23-08, Change 3 specifically provides, “[a]s agents of the United States, the states and cooperating state agencies may not deviate from this guidance without the prior approval of the Department.” UIPL No. 23-08, Change 3 December 24, 2008 at 1.

Sweeney v. Unemployment Compensation Board of Review, 74 A.3d 1175, 1178 (Pa.Cmwlth.2013).

*300We agree with the Board that Claimant was required to exhaust the remaining $2,280.00 in Ohio EUC benefits due on his 2010 claim there before he could be eligible for any Pennsylvania EUC benefits due on his 2011 claim here. As a result, the Board did not err in determining that Claimant received a non-fraud overpayment in Pennsylvania EUC benefits because he was ineligible for such benefits for the compensable weeks ending November 12, 2011, through March 24, 2012, based on his continuing eligibility under the prior 2010 Ohio EUC claim.

Accordingly, the Board’s orders are affirmed.

ORDER

AND NOW, this 9th day of December, 2013, the orders of the Unemployment Compensation Board of Review, dated January 24, 2013, at Nos. B-12-09-H-8788 and B-12-09-H-8782, are affirmed.

Castello v. Unemployment Compensation Board of Review
86 A.3d 294

Case Details

Name
Castello v. Unemployment Compensation Board of Review
Decision Date
Dec 9, 2013
Citations

86 A.3d 294

Jurisdiction
Pennsylvania

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