Narducci v. Unemployment Comp. Bd. of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Narducci, :

Petitioner :

:

v. : No. 841 C.D. 2017

: Submitted: March 8, 2018

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED: April 4, 2018

John E. Narducci (Claimant) petitions for review of the

Unemployment Compensation Board of Review (Board) decision imposing a fault

overpayment of $14,768, and assessing 28 penalty weeks and a $2,215.20

monetary penalty pursuant to Section 804(a) of the Unemployment Compensation

Law1 (Law). Claimant contends that the Department of Labor and Industry

1

Section 804(a) of the Unemployment Compensation Law, Act of December 5, 1936,

Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a), provides:

Any 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 at the rate determined by the

Secretary of Revenue. . . .

(Department), through its Service Centers, did not have jurisdiction to reopen his

case ten months after unemployment compensation (UC) benefits were awarded to

find that he was ineligible for benefits and to impose fault overpayment and

penalties. In the event the Department did have jurisdiction, Claimant contends

that it improperly imposed a fault overpayment. For the following reasons, we

affirm.

I.

Claimant worked for PECO Energy (Employer) as a full-time service

distribution mechanic between June 10, 2002, and September 13, 2013. On

September 13, 2013, Claimant was suspended pending a job review due to an

incident in which he threw a bottle of hand soap at a fellow employee and was

escorted off the premises. On October 14, 2013, Employer sent Claimant a letter

discharging him as of October 11, 2013, based on his violation of safety rules and

“actions that were threatening, intimidating, and physically aggressive.” (Record

(R.) at Item No. 8, Referee’s Hearing: Transcript of Testimony w/Claimant

Exhibit, dated 10/17/2014.)

Before the discharge letter, on October 13, 2013,2 Claimant submitted

an online application for UC benefits indicating that the reason for separation from

his employment was due to lack of work. At some point between October 17,

2013, and October 19, 2013, Claimant received Employer’s October 14, 2013 letter

2

This was not recorded in the claim record until October 16, 2013.

2

notifying him that he had been discharged for cause. On October 17, 2013, the

Department mailed Employer a notification that Claimant had filed for benefits.3

On October 21, 2013, the Department sent Employer a Form UC-

44F(3), Notice of Financial Determination, that found Claimant financially eligible

for benefits,4 together with a Form UC-44FR, Request for Relief from Charges.

Nothing in the record indicates that the Department issued an official Notice of

Determination granting Claimant benefits or that the Department sent

questionnaires to either Claimant or Employer seeking information regarding the

claim.

On October 30, 2013, Claimant spoke to a Department representative,

explaining that he was confused about the requirement that he be able and

available for work in order to receive benefits. The Claimant, however, did not

correct the reason for his separation from employment in his claim record.

On November 5, 2013, Employer sent a letter to the Department’s

Charge Office (Charge Office) requesting relief of charges,5 stating, “[Claimant]

3

This notification is missing from the record.

4

Notice of Financial Determination (Form UC-44F) lists employers and the amount of

wages paid in each quarter of an employee’s base year. The Notice determines “financial

eligibility” for UC benefits based on the employee’s highest quarterly wages, total base-year

wages and credit weeks during the base year. It establishes a weekly benefit rate, partial

disability credit, maximum benefit entitlement and allowances for dependents. If an applicant is

financially ineligible, the determination tells the applicant the reason for ineligibility.

5

Pursuant to Section 302.1 of the Law, added by Section 3 of the Act of June 17, 2011,

P.L. 16, as amended, 43 P.S. § 782.1, an employer that has been assigned to pay compensation to

(Footnote continued on next page…)

3

was discharged for unacceptable and improper conduct. On 9/12/13 [he] threw a

bottle of water at an employee and threw a container of skin cleanser at an

employee that left a dent in the wall.” (R. at Item No. 3, Employer Separation

Information, November 5, 2013 letter.) It was not until December 16, 2013, that

the Department noted on Claimant’s claim record that Employer had requested a

relief from charges. Because of a staff shortage, the Department took no action

based on the information contained in that request. On January 22, 2014, the

Department placed a general annotation on the claim record indicating that

Employer discharged Claimant for cause but again took no action based on that

information. Claimant continued to receive benefits until April 19, 2014.

On July 30, 2014, Employer sent a letter to the Charge Office

protesting the Monthly Notice of Compensation Charged report requesting

investigation into Claimant’s matter and noting:

Our records indicate that, to date, no

determination/decision has been issued to the protested

claim on the separation issue. If a determination has

been issued[,] please forward a copy so that we may

complete our files. If a copy is not available, please

indicate to what address it was mailed.

(R. at Item No. 3, Employer Separation Information, July 30, 2014 letter.)

(continued…)

an employee may be relieved of charges for compensation in the event an individual was

discharged from the employer for willful misconduct connected with the work.

4

Prompted by Employer’s letter, on August 4, 2014, the Department,

for the first time, sent questionnaires to both Claimant and Employer. Based upon

this information, on August 21, 2014, the Department issued three determinations.

The first was a Notice of Determination that denied benefits under Section 402(e)

of the Law because Claimant was discharged for cause.6 The second was a Notice

of Determination Overpayment of Benefit (Fault or NonFault) which found that

Claimant had a fault overpayment of $14,768 representing the amount of UC

benefits he received. The third was a Notice of Determination issuing a 15%

penalty of $2,215.20 for over 28 penalty weeks pursuant to Sections 801(b)7 and

(c)8 of the Law. Claimant timely appealed the three determinations and a Referee

held a hearing.

6

43 P.S. § 802(e) provides that an employee is ineligible for any week:

In which his unemployment is due to his discharge or temporary

suspension from work for willful misconduct connected with his

work, irrespective of whether or not such work is “employment” as

defined in [the Law]. . . .

7

Section 801(b) of the Law provides in relevant part:

Whoever makes a false statement knowing it to be false, or

knowingly fails to disclose a material fact or increase any

compensation or other payment under [the Law]. . . may be

disqualified in addition to such week or weeks of improper

payments for a penalty period of five weeks and for not more than

one additional week for each such week of improper payment.

43 P.S. § 871(b).

8

Section 801(c) of the Law provides in relevant part:

Whoever makes a false statement knowing it to be false, or

knowingly fails to disclose a material fact to obtain or increase

(Footnote continued on next page…)

5

At the hearing, Claimant contended that because Employer did not

appeal within 15 days of Claimant’s grant of benefits, the Department did not have

jurisdiction to open the appeal ten months later. In his testimony, Claimant

acknowledged that he threw a container of hand soap at a coworker because his

coworker brought up a sensitive personal matter. He went on to testify that the

reason he filed for UC benefits before he had been formally discharged was

because he was not being paid and that he did not intentionally try to defraud or

willfully mislead anyone in his application. He further acknowledged that after

receiving the letter from Employer detailing the reason for his discharge, he did not

provide the Department with the true reason for his lack of work.

Following the hearing, the Referee affirmed the Notices of

Determination issued by the Service Center and, on appeal, the Board affirmed.

II.

Claimant then appealed to this Court, again arguing that the

Department did not have authority to reopen his UC claim in 2014 after approving

and paying him benefits in October 2013 because the issuance was a final

(continued…)

compensation or other payment under this act . . . and as a result

receives compensation to which he is not entitled shall be liable to

pay to the Unemployment Compensation Fund a sum equal to

fifteen per centum (15%) of the amount of the compensation.

43 P.S. § 871(c).

6

determination that Employer never appealed.9 The Board argued that it never

issued a final determination until August 2014. Claimant also contended that a

fault payment and penalties should not have been imposed.

In November 2015, this Court, through Judge Cohn Jubelirer, issued

an opinion vacating the Board’s decision and remanding for a determination as to

whether the Department had jurisdiction to issue the August 21, 2014

determinations.10 The opinion provided:

[N]either the Referee nor the Board made findings of fact

and conclusions of law with regard to the Service Center

determination dates, whether there was in fact a final

determination of Claimant’s eligibility made in October

2013 as argued by Claimant and, if so, on what basis that

determination could be reopened. . . .

This hole in the factual record is crucial for appellate

review of whether the Board had jurisdiction to issue the

August 21, 2014 determination that Claimant was

ineligible for benefits. If the Board is correct that no

Notice of Determination was issued in response to

Claimant’s application for benefits in October 2013,

Employer would have had no determination from which

to appeal until the Service Center issued its August 21,

2014 determination. Conversely, if a Notice of

Determination was issued in October 2013 or shortly

thereafter, the appeal period would have long since

9

Pursuant to Section 501(e) of the Law, an employer or claimant may appeal a notice of

determination regarding a claimant’s eligibility for UC benefits within 15 days of receiving

notice from the Department. 43 P.S. § 821(e).

10

Narducci v. Unemployment Compensation Board of Review, (Pa. Cmwlth., 104 C.D.

2015, filed November 4, 2015).

7

passed and the Board would have lacked subject matter

jurisdiction over Claimant’s eligibility for UC benefits.

Narducci v. Unemployment Compensation Board of Review, (Pa. Cmwlth., 104

C.D. 2015, filed November 4, 2015). Specifically, the Board was required to make

findings of fact and conclusions of law with regard to the Service Center

determination dates, whether there was, in fact, a final determination of Claimant’s

eligibility made in October 2013, and if so, upon what basis should the

determination be opened. We did not address the issue of whether the fault

overpayment should have been imposed.

In accordance with this order, the Referee, acting merely as a hearing

officer, held three additional hearings in this matter to complete the record as much

as possible and to take additional testimony. At the first hearing, the Referee took

the testimony of Blair Stuart (Stuart), a State Examiner for Unemployment

Compensation with the Department. In pertinent part, he testified:

Q: [A]ccording to you, this Determination was issued on

August 21[.] Do you know why it was not issued—it

looks like an [application] date of October 13, 2013. Do

you know why a Decision was not issued until more than

ten months later?

A: Yes.

Q: Why is that?

A: Our office here in Allentown did not receive any

notification from the Employer. That doesn’t necessarily

mean it wasn’t sent. But I’m just referring to our Service

Center in Allentown and our Adjudication Unit did not

receive any information until August 4 at 12:38 p.m.

8

That’s the first notification we received that Employer

was contesting [inaudible] or in this case a Relief from

Charge.

***

Q: So no Decision was made based upon information

that you had at the time in 2013?

A: Correct . . . .

***

A: We—because the Claimant built the claim on the

Internet and indicated to our knowledge that there was

lack of work. There was no notification of a separation

issue. Our first notification of that was through

information we received through Relief from Charge

Unit in Harrisburg . . . .

(R. at Item No. 17, Board Hearing – Remand: Transcript of Testimony, dated

12/4/2015, pp. 9-10.) When it was determined that several pertinent documents

were missing from the record, another hearing was scheduled. At the second

hearing, it was established that on November 5, 2013, Employer submitted a

Request for Relief from Charges recorded in the claim record on December 16,

2013.

Because the record was still not complete, a third hearing was held

where the parties entered a stipulation agreeing to the following pertinent facts:

6. A financial determination, form UC-44[F], was

generated by the Allentown UC Service Center on

October 17, 2013 and mailed to the claimant on October

21, 2013. As best as can be determined, the financial

9

determination, form UC-44F, that was generated in this

matter no longer exists in paper or electronic form.

***

7. On October 16, 2013 a form (UC-44F(3)) [Notice of

Financial Determination] was generated and mailed to

[Employer] on October 17, 2013 as well as Form

UC44(FR) Request for Relief From charges, as

[Employer] was also a base year employer . . . . As best

as can be determined, these forms that were generated in

this matter no longer exist in paper or electronic form . . .

.

8. A “Request for Wage and Separation Information”,

Form UC-45 was generated on October 16, 2013 and sent

to [Employer] on October 17, 2013 . . . .[11] As best as

can be determined, these forms that were generated in

this matter no longer exist in paper or electronic form.

11

34 Pa. Code § 63.53. Form UC-45 provides:

(a) When an employer receives Form UC-45, Notice of

Application and Request for Separation Information, or Form UC-

45A, Notice of Registration Renewal and Request for Separation

Information, he shall complete the form and return it to the local

public employment office designated on the form within 4 days

from the date on which the form is received.

(b) If an employer contemplates the separation at one time of a

large number of employes a local office manager may, at his

option, enter into an agreement with the employer to accept a list

showing the required information, in lieu of Forms UC-45 and UC-

45A.

There is nothing in the record indicating that Employer ever returned that form.

10

(R. at Item No. 31, Board Hearing – Remand: Transcript of Testimony w/

Claimant Exhibit, dated 5/27/2016, Stipulation of Fact.)

A year after the hearings, the Board issued a decision regarding the

questions on remand that it was instructed to answer – i.e., whether there was, in

fact, a final determination of Claimant’s eligibility made in October 2013 and, if

so, on what basis that determination could be reopened. As to whether there was a

final determination, the Board found that prior to August 2014, no final

determination on eligibility had been found. It stated:

10. On October 21, 2013, [Claimant] was found

financially eligible for benefits. Neither party appealed

this financial determination.

***

13. No written determination was issued by the

Department because the claimant indicated that he had

been laid off for lack of work and the Department

received no information from the employer to indicate

otherwise.

14. On November 5, 2013, the employer sent to the

Employer’s Charge Office a request for relief from

charges or a determination on the claimant’s eligibility,

asserting that the claimant had been terminated from

employment due to unacceptable and improper conduct.

15. The Department received the request for relief from

charges on December 16, 2013, but did not act on it.

Because of the recession at that time and lack of staff,

issues for claimants not receiving benefits took priority

over issues for claimants receiving benefits.

16. The Department continued to pay the claimant UC

benefits.

11

17. On July 30, 2014, the employer sent another letter to

the Employer’s Charge Office protesting the Monthly

Notice of Compensation Charged, noting that to date no

determination had been made on the claimant’s

separation eligibility.

(R. at Item No. 32, Board’s Decision and Order, dated 5/23/2017 (Ineligible

w/Fault Overpayment, Penalty Weeks, and 15% Penalty.)) It then found that

because Section 501 of the Law contains no time frame for the Department to issue

a determination, it was proper to issue the notice of determination denying benefits

and imposing the fault overpayment and penalties even though it was more than

ten months after the Department became aware that Claimant had been discharged

for cause. As a result, the Board again imposed a fault overpayment of $14,768

and assessed 28 penalty weeks and a $2,215.20 monetary penalty. This appeal

followed.12

III.

A.

On appeal, Claimant contends that the Board lacked jurisdiction to

issue a notice of determination denying benefits ten months after Claimant was

found to be eligible for benefits on October 21, 2013. He contends that there is

nothing in the record to suggest that Employer did not receive notification of that

benefits determination. Essentially arguing that this lack of evidence automatically

12

Our scope of review is limited to determining whether constitutional rights were

violated, whether an error of law was committed, or whether findings of fact were supported by

substantial evidence. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884

(Pa. Cmwlth. 1998).

12

creates a presumption that Employer did receive notice, Claimant contends that the

initial notice that the Department found Claimant eligible for benefits on October

21, 2013, triggered a duty on Employer to appeal the decision within 15 days as

required by Section 501(e) of the Law, 43 P.S. § 821(e).13 Because Employer did

not file an appeal within 15 days of the determination, Claimant contends that that

decision is final. In making that argument, he also cites to Section 509 of the Law,

which provides that “[a]ny decision made by the department or any referee or the

board shall not be subject to collateral attack as to any application claim or claims

covered thereby or otherwise be disturbed, unless appealed from.” 43 P.S. § 829.

Section 501 of the Law sets forth how benefits may be awarded and

denied, when a claimant or employer has to be notified of a determination and

when the Department loses jurisdiction to revise claims. Section 501(a)

13

This provision provides:

Unless the claimant or last employer or base-year employer of the

claimant files an appeal with the board, from the determination

contained in any notice required to be furnished by the department

under section five hundred and one (a), (c) and (d), within fifteen

calendar days after such notice was delivered to him personally, or

was mailed to his last known post office address, and applies for a

hearing, such determination of the department, with respect to the

particular facts set forth in such notice, shall be final and

compensation shall be paid or denied in accordance therewith.

43 P.S. § 821(e). A Service Center may issue a revised notice of determination within the appeal

period if no appeal has been filed. However, once the appeal period has expired, the

determination becomes final and the Board loses jurisdiction to consider the matter.

Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d

971 (Pa. Cmwlth. 2009).

13

specifically deals with what occurs when a claimant files an appeal. It provides,

among other things, that the Department shall “promptly examine each application

for benefits and on the basis of the facts found by it shall determine whether or not

the application is valid.” 43 P.S. § 821(a). Section 501(b) provides that notice

“shall be given in writing to the last employer of the claimant stating that an

application has been filed” by one of its employees seeking unemployment

compensation benefits, thus requiring that employer to provide information to the

Department regarding the circumstances of employee’s separation from

employment. 43 P.S. § 821(b).

When the employer has not timely filed information that a claimant is

not eligible for benefits, Section 501(c)(2) of the Law provides:

Notice of such determination need not be given to the

claimant if the claim is determined valid, but if the claim

is determined invalid, notice shall be given by the

department in writing to the claimant stating that the

claim is invalid and the reason therefor.

43 P.S. § 821(c)(2) (emphasis added).

Under Section 501(c)(3) of the Law, “notice of such determination”

need not be given to an employer unless the employer has provided information to

the Department that the claimant is ineligible for benefits. It provides:

Notice of such determination need not be given to any

base-year employer or last employer of the claimant

unless such base-year employer or last employer has

filed with the department information in writing

14

which might raise a question as to the eligibility of the

claimant for any reason other than his failure to

comply with the provisions of section four hundred

one (a), in which event notice shall be given as provided

herein.

43 P.S. § 821(c)(3) (emphasis added).

When the employer files with the Department information that raises a

question as to the eligibility of a claimant within 15 days, Section 501(c)(4)

provides:

[T]he department shall issue to such employer (i) a

notice in writing of its determination with respect to

each claim which is filed by the claimant for a week, the

first day of which is on or before the date on which such

information is filed, and (ii) a notice in writing of its

determination with respect to the first valid claim which

is filed by the claimant during the claimant’s benefit year

for a week, the last day of which is subsequent to the date

on which such information is filed.

43 P.S. § 821(c)(4) (emphasis added).

However, if the employer files information more than 15 days after

notice has been sent to it, that does not mean that the award of benefits cannot be

challenged and the Department is not required to send it a notice of determination.

Under Section 501(c)(5):

If an employer files with the department such

information more than fifteen days after notice required

under five hundred one (a) or (b) was delivered to him

15

personally, or was mailed to his last known post office

address, the department shall only issue to such employer

(i) a notice in writing of its determination with respect to

each claim which is filed by the claimant for a week, the

first day of which is within the thirty-day period which

immediately precedes the date on which such information

is filed, and (ii) a notice in writing of its determination

with respect to the first valid claim which is filed by the

claimant during the claimant’s benefit year for a week,

the last day of which is subsequent to the date on which

such information is filed.

43 P.S. §821(c)(5) (emphasis added).

Under Section 501(d) of the Law, the Department is required to notify

“any employer or claimant who has been notified as required under subsections (a)

and (c) of this section of any revision made in the determination as contained in the

original notice given to such employer or claimant.” 43 P.S. § 821(d). In other

words, the Department’s determination that Claimant was entitled to benefits is not

a final determination because the Department still has the ability to revise its

determination.

Section 501(e) of the Law provides that the Department can make

revisions regarding eligibility for benefits until the determination of eligibility or

ineligibility becomes “final” which is 15 days after written notice is delivered. It

provides:

Unless the claimant or last employer or base-year

employer of the claimant files an appeal with the board,

from the determination contained in any notice required

to be furnished by the department under section five

hundred and one (a), (c) and (d), within fifteen calendar

16

days after such notice was delivered to him personally, or

was mailed to his last known post office address, and

applies for a hearing, such determination of the

department, with respect to the particular facts set forth

in such notice, shall be final and compensation shall be

paid or denied in accordance therewith.

43 P.S. § 821(e); see also Garza v. Unemployment Compensation Board of Review,

669 A.2d 445, 447 (Pa. Cmwlth. 1995) (holding that a determination can be

revised before it becomes final as long as no appeal has been filed, and that “if a

determination is appealed within the 15 allotted days, it cannot then be revised

even though it does not become final.”).

To summarize, under Section 501 of the Law, when a claim is filed,

the following is to occur:

 Employer is to receive notice that a claim is filed,

and if it opposes the grant of benefits, employer should

provide information within 15 days as to why benefits

should not be granted.

 If an employer does not provide information

within 15 days giving reasons why the claim should not

be granted, the following is to occur:

 If the claim is facially valid, then benefits

can be granted without a notice of determination

being issued;

 If the claim is not facially valid and denied,

then a notice of determination is issued from which

a claimant can take an appeal.

 No notice of any determination is required to be

given to an employer who has not provided information

that the claimant is ineligible.

17

 If an employer files information after 15 days that

claimant should be declared ineligible for benefits, then

the employer is entitled to a notice of determination

regarding its challenge to claimant’s unemployment

eligibility.

 The Department has no time limit to make a

revision to an eligibility determination based on

employer’s information that a claimant is not eligible for

UC benefits.

In this case, the Department sent Employer notice on October 17,

2013, that Claimant had applied for UC benefits. Employer did not respond in 15

days with information that Claimant was ineligible for benefits. Because

Claimant’s application provided a facially valid reason for UC benefits to be

granted and Employer did not file a timely response, benefits could be awarded

and no notice of determination had to be given to either Claimant or Employer.

However, when Employer did provide information to the Charge Office that

Claimant should be considered ineligible for benefits on November 5, 2013, the

Department was required to issue a notice of determination of whether it still

intended to grant benefits or if it was revising the original determination to deny

benefits. Due to the Department’s inaction, Employer’s request was not addressed

until August 21, 2014, when the Department issued the three determinations that

found Claimant ineligible for benefits and imposed a fault overpayment and

penalties. However, because the Department does not have a specific time limit

during which it must issue notices of determination, it still had jurisdiction to issue

those revised notices.

18

B.

In his original appeal, Claimant contended that the Board incorrectly

imposed a fault overpayment because he supplied false information when applying

for compensation. Because we did not address that issue in the original opinion

before remand, we will address it now.

Section 804(a) of the Law provides that if a person receives

unemployment compensation benefits due to his or her “fault,” the claimant is

responsible for repaying the amount received in error plus interest. 43 P.S. §

874(a). “The word ‘fault’ within the meaning of 804(a) of the Law connotes an act

to which blame, censure, impropriety, shortcoming or culpability attaches.”

Amspacher v. Unemployment Compensation Board of Review, 479 A.2d 688, 691

(Pa. Cmwlth. 1984) (citing Summers v. Unemployment Compensation Board of

Review, 430 A.2d 1046 (Pa. Cmwlth. 1981)). Conduct that is designed to

improperly and intentionally mislead the UC authorities is sufficient to establish a

fault overpayment. Castello v. Unemployment Compensation Board of Review, 86

A.3d 294, 298 (Pa. Cmwlth. 2013). For example, an intentional misstatement on

an application for benefits can support a finding of fault under Section 804(a). Id.

In order to find fault, the Referee or Board must make some findings with regard to

a claimant’s state of mind. Id.

There is no dispute that Claimant reported that he was laid off from

work rather than that he was terminated for willful misconduct when he made his

application for UC benefits. Despite having received a letter from Employer

relieving him of his duties due to “actions that were threatening, intimidating, and

19

physically aggressive,” and despite having been escorted off the premises on the

day of his suspension, Claimant contends that his belief that he was laid off was

reasonable because he was sent home without being assigned additional hours,

which is consistent with being laid off. (R. at Item No. 8, Referee’s Hearing:

Transcript of Testimony w/Claimant Exhibit, dated 10/17/2014.) He also contends

that his belief was reasonable because he sought a legal opinion as to whether he

was eligible for UC benefits prior to making the claim. In addition, at the time he

made the application, he had not yet received the termination letter from Employer

that he had been terminated for willful misconduct; though he admits he signed for

benefits every two weeks between October 2013 and April 19, 2014, without

informing the Department of the true reason for his discharge.

However, the Board rejected the argument that Claimant reasonably

believed he was laid off, finding:

[W]hen filing for benefits, the claimant told the

Department that he was unemployed due to lack of work

even though he was aware that he had been suspended

due to the incident with the bottle of hand soap, was

escorted off the premises, and was later discharged. The

Board does not credit [Claimant’s] testimony that he

received the termination letter between October 17 and

19, 2013, after he filed his application on October 16,

given the timing of when he decided to file for benefits.

Even if he had not received the termination notice until

after he filed his application, the claim record shows that

the claimant spoke to a Department representative on

October 30, 2013, to correct an error involving reporting

his ability and availability to work, yet he did not correct

the reason for his unemployment. The delay, the fault

overpayment, and the penalties would have been avoided

if [Claimant] had been honest with the Department. The

Board concludes that the claimant knowingly and

20

intentionally misreported his reason for unemployment to

the Department in order to obtain benefits. Therefore the

fault overpayment, penalty weeks, and additional penalty

are appropriate.

(R. at Item No. 32, Board’s Decision and Order, dated 5/23/2017 (Ineligible

w/Fault Overpayment, Penalty Weeks, and 15% Penalty, p. 7.)) When a claimant

fails to disclose material facts to obtain or increase UC benefits, a finding of fault

overpayment is proper. Summers, 430 A.2d at 1048.

The Board is the ultimate fact finder in UC cases and has the sole

discretion to determine the credibility of witnesses, resolve conflicts in the

evidence and is free to accept or reject the testimony of any witness in whole or in

part. See Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383,

1385 (Pa. 1985). The Board was empowered not to accept Claimant’s testimony

that he had a reasonable belief that he was laid off rather than terminated, and it is

not within this Court’s authority to disturb the Board’s credibility findings.

Accordingly, for the foregoing reasons, the Board’s decision is

affirmed.

__________________________________

DAN PELLEGRINI, Senior Judge

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Narducci, :

Petitioner :

:

v. : No. 841 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 4th day of April, 2018, the Unemployment

Compensation Board of Review’s order dated May 23, 2017, is affirmed.

__________________________________

DAN PELLEGRINI, Senior Judge