            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David L. Wetzel,                             :
                       Petitioner            :
                                             :
               v.                            : Nos. 1911, 1912 C.D. 2016
                                             : Submitted: December 1, 2017
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: January 4, 2018


               In this consolidated appeal, David L. Wetzel (Claimant) petitions for
review from the Unemployment Compensation Board of Review’s (Board) orders
affirming the decisions of the Referee to deny Trade Readjustment Allowance
(TRA) benefits to Claimant due to ineligibility under Section 233(a)(1) of the
Trade Act of 1974 (Trade Act)1 and a non-fault, non-recoupable overpayment
under Section 804(b)(1)(iii)(C) of the Unemployment Compensation Law (Law).2


      1
          Section 233(a)(1) of the Trade Act of 1974, as amended, 19 U.S.C. § 2293(a)(1).

      2
        Section 804(b)(1)(iii)(C) of the Unemployment Compensation Law, Act of December 5,
1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(b)(1)(iii)(C).
For the following reasons, we affirm the Board’s decision regarding TRA
ineligibility,3 and reverse and remand the Board’s decision regarding
unemployment compensation (UC) overpayments.4


                                              I.
               Claimant was laid off from his job at Baldwin Hardware Corporation
on December 6, 2013, when that company permanently closed due to foreign
competition. This made him eligible for benefits under the Trade Act5 which
provides for the payment of TRA benefits to workers adversely affected by unfair
or injurious import competition6 as well as UC benefits. The state UC bureaus
administer the program and determine a worker’s eligibility for TRA benefits.
Bushofsky v. Unemployment Compensation Board of Review, 626 A.2d 687, 690
n.1 (Pa. Cmwlth. 1993).


               On December 8, 2013, Claimant applied for and was paid UC benefits
for 26 claim weeks between February 15, 2014, and August 8, 2014. On March 5,
2014, Claimant filed an application under the Trade Act and the Department of
Labor and Industry (L&I) found Claimant eligible for the 26 claim weeks between


      3
        Board Decision No. B-592446. The appeal from this order is docketed at No. 1911
C.D. 2016.

      4
        Board Decision No. B-592447. The appeal from this order is docketed at No. 1912
C.D. 2016.

      5
          Trade Act of 1974, as amended, 19 U.S.C. §§ 2101 – 2497b.

      6
          See 19 U.S.C. § 2272.



                                              2
August 30, 2014, and February 21, 2015. Claimant also filed a TRA claim for the
claim week ending February 28, 2015.


                Upon the expiration of that UC benefit year, on December 7, 2014,
Claimant filed a new application for UC benefits. The UC Service Center found
Claimant to be eligible and he received benefits for the weeks ending December
20, 2014, through February 28, 2015. The total he received in UC benefits for
those weeks was $3,817. However, on March 10, 2015, Claimant informed the
local UC Service Center that he had not worked since December 6, 2013, and it
found Claimant ineligible for UC benefits. See Section 4(w)(2) of the Law.7
Because Claimant was not entitled to those benefits, on March 26, 2015, L&I
issued a Notice of Determination of Overpayment of Benefits, finding a non-fault
determination of overpayment of UC benefits in the amount of $3,817.8




       7
           Section 4(w)(2) provides:

                An application for benefits filed after the termination of a
                preceding benefit year by an individual shall not be considered a
                Valid Application for Benefits within the meaning of this
                subsection, unless such individual has, subsequent to the beginning
                of such preceding benefit year and prior to the filing of such
                application, worked and earned wages in “employment” as defined
                in this act in an amount equal to or in excess of six (6) times his
                weekly benefit rate in effect during such preceding benefit year.

43 P.S. § 753(w)(2).

       8
         We affirmed this determination in Wetzel v. Unemployment Compensation Board of
Review, (Pa. Cmwlth., No. 1328 C.D. 2015, filed February 9, 2016).



                                                3
                On May 6, 2016, L&I denied Claimant’s request for TRA benefits for
the claim week beginning February 28, 2015. The denial explained that while a
claimant can receive up to 52 weeks of TRA benefits, the 26 weeks he received of
UC benefits were counted against that total, making him eligible for 26 weeks of
TRA benefits. Because Claimant had received 26 weeks of TRA benefits, he was
ineligible for further weeks under Section 233(a)(1) of the Trade Act.9


                On May 9, 2016, L&I issued another Notice of Determination of
Overpayment of Benefits stating that because Claimant received $3,817 in UC
benefits to which he was not entitled, L&I offset Claimant’s TRA eligibility for the
claim weeks ending December 20, 2014, through February 21, 2015, against that
amount and reduced Claimant’s non-fault, non-recoupable overpayment to $537.
Claimant appealed the L&I decision that there had been an overpayment as well as
the L&I decision that Claimant was ineligible for further TRA benefits.




       9
           Section 233(a)(1) of the Trade Act provides:

                The maximum amount of trade readjustment allowances payable
                with respect to the period covered by any certification to an
                adversely affected worker shall be the amount which is the product
                of 52 multiplied by the trade readjustment allowance payable to the
                worker for a week of total unemployment (as determined under
                section 2292(a) of this title), but such product shall be reduced by
                the total sum of the unemployment insurance to which the worker
                was entitled (or would have been entitled if he had applied
                therefor) in the worker’s first benefit period described in section
                2291(a)(3)(A) of this title.

19 U.S.C. § 2293(a)(1).



                                                 4
              Following a hearing, the Referee issued two decisions. The first,
decided June 23, 2016, affirmed the UC Service Center’s finding of ineligibility
for TRA benefits for the claim week ending February 28, 2015, because, under
Section 233(a)(1) of the Trade Act, 19 U.S.C. § 2293(a)(1), a claimant’s
entitlement to 52 weeks of TRA benefits is reduced by the number of weeks he
receives UC benefits. The Referee reasoned that since Claimant received 26 weeks
of UC benefits under the 2013 application, Claimant was limited to receiving 26
weeks of TRA benefits, all of which he received with claim week ending February
21, 2015.


              The second decision, dated June 28, 2016, affirmed the UC Service
Center’s determination that it was proper to reduce the overpayment amount of UC
benefits by offsetting Claimant’s TRA benefits. The decision also affirmed the
imposition of a non-fault, non-recoupable overpayment10 in the amount of $537 as
calculated under Section 804(b)(1)(iii)(C) of the Law. 43 P.S. § 874(b)(1)(iii)(C).


              Claimant appealed both of the Referee’s decisions to the Board. On
September 20, 2016, the Board issued two separate orders, adopting the Referee’s
findings and affirming both decisions. Claimant requested reconsideration of both
decisions, but was denied. This appeal followed.11


       10
         Had a non-fault overpayment been assessed instead, recoupment from future benefits
payable within a three-year period following the benefit year at issue would be allowed. 43 P.S.
§ 874(b)(1).

       11
         In reviewing a Board decision, our scope of review is limited to determining whether
the Board violated any constitutional rights or committed an error of law, or whether substantial
(Footnote continued on next page…)
                                               5
                                                II.12
                 Although Claimant appeals the Board’s order affirming the June 23,
2016 Referee decision finding Claimant ineligible for TRA benefits for the claim
week ending February 28, 2015, he does not address this issue in his brief.13 The



(continued…)

evidence supports the necessary findings of fact. Key v. Unemployment Compensation Board of
Review, 687 A.2d 409, 411 n.2 (Pa. Cmwlth. 1996).

       12
           In a separate motion, the Board asserts that we should either strike Claimant’s brief or
dismiss his appeal because Claimant failed to engage in any meaningful discussion of the issue
he raises. See Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa.
Cmwlth. 1998). However, it is well settled that when analyzing the claims of pro se litigants, we
afford their filings liberal construction. Mueller v. Pennsylvania State Police Headquarters, 532
A.2d 900 (Pa. Cmwlth. 1987). Here, given the context of his appeal and the statements
contained in his brief, it is obvious that Claimant is asserting that no overpayment should be
imposed at all because the overpayment was not his fault. Accordingly, we deny the Board’s
motion.

       13
            While not developed in Claimant’s brief, we agree with the Referee that:

                 The Trade Act . . . provides for payment of 52 weeks of basic
                 trade readjustment allowances. Under Section 233(a)(1), a
                 claimant’[s] entitlement is reduced by the number of weeks he
                 receives UC benefits.

                 In the present case, the claimant received 26 weeks of UC benefits
                 under the 2013 application.          Accordingly, the claimant’s
                 entitlement to TRA benefits was reduced to 26 weeks. The
                 claimant received 26 weeks of TRA benefits ending with the claim
                 week ending February 21, 2015. Therefore the claimant had
                 exhausted his TRA benefits prior to the claim week at issue and
                 benefits will be disallowed under Section 233(a) of the Trade Act,
                 as amended.

(Record (R.) at No. 10, Referee’s Decision/Order – TRA dated 6/23/16.)


                                                 6
only issue that Claimant raises is that no overpayment should be imposed at all
because the overpayment was not his fault.


              At the outset, we note that we are perplexed that there was any TRA
benefits available to offset any overpayment in UC benefits because the Referee’s
decision of June 23, 2016, which the Board adopted, specifically states that
Claimant received all the benefits to which he was entitled – 26 weeks in UC
benefits and 26 weeks of TRA benefits.14 Assuming, though, that there were
unpaid weeks of TRA benefits for which he was eligible, the question then is
whether the Board properly ordered that the UC benefits overpayment should be
offset by Claimant’s remaining TRA eligibility.


              Section    804(b)(1)(iii)(C)        of   the   Law   provides     that   when
overcompensation is paid, even if the claimant is not at fault, it can be recouped
from any future UC benefits paid within three years of the benefit year. 43 P.S. §
874(b)(1)(iii)(C). Specifically, it provides:

              (b)(1) Any person who other than by reason of his fault
              has received with respect to a benefit year any sum as
              compensation under this act to which he was not

       14
          Finding of Fact No. 4 of the Referee’s June 23, 2016 decision denying the claim for
TRA benefits for claim week beginning February 28 states, “The claimant filed for and received
UC benefits for the 26 claim weeks ending between February 15, 2014 and August 8, 2014.” (R.
at No. 10, Referee’s Decision/Order – TRA dated 6/23/16.)

       Finding of Fact No. 6 of the same decision states, “The claimant filed for and received
$323 in TRA benefits for the 26 claim weeks ending between August 30, 2014 and February 21,
2015.” Id.



                                              7
                entitled shall not be liable to repay such sum but shall be
                liable to have such sum deducted from any future
                compensation payable to him with respect to such
                benefit year, or the three-year period immediately
                following such benefit year, in accordance with the
                provisions of this paragraph. . . .

                (iii) In the absence of misrepresentation or non-disclosure
                of a material fact, no recoupment shall be had if such
                overpayment is created by reason of:

                                               ***

                      (C) a subsequent determination that the person’s
                base year wages were not earned in employment as
                defined in this act.


Id. The problem is that this provision only allows recoupment from future UC
benefits and does not mention any recoupment from TRA benefits.


                We addressed a similar issue in Burley v. Department of Public
Welfare, 773 A.2d 230 (Pa. Cmwlth. 2001).                    In that case, the Pennsylvania
Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA),
held that “Act 534”15 benefits, which provide full salary during periods of disability
for state mental institution employees injured by institutional inmates, can be used
to offset any overpayment of UC benefits awarded to a claimant. We reversed
because nothing in Act 534 authorized a deduction from an employee’s salary for
UC benefits, though it does provide for a deduction from workers’ compensation
(WC) benefits.16 Because Act 534 specifically contemplated a possible offset from

      15
           Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. §§ 951 – 952.

      16
           As pertinent, Section 1 of Act 534, 61 P.S. § 951, provides:
(Footnote continued on next page…)
                                                 8
WC benefits but not UC benefits, we reversed the Board’s decision and held that
DPW was not entitled to deduct the overpayment amount from that claimant’s Act
534 benefits.


             In our holding, we explained that while Act 534 has a provision to
permit offset for any WC benefits, it did not contain a similar provision relating to
UC benefits. Accordingly, we relied upon the principle of statutory construction
that where certain things are specifically designated in a statute, all omissions are
understood as exclusions.       Latella v. Unemployment Compensation Board of
Review, 459 A.2d 464 (Pa. Cmwlth. 1983). Similarly, in this case, while Section
804(b)(1)(iii)(C) of the Law, 43 P.S. § 874(b)(1)(iii)(C), permits offset from future
UC benefits, it does not provide for the use of TRA benefits to offset any UC
overpayments.


             However, because we are unsure that the TRA benefits for the claim
weeks ending December 20, 2014, through February 21, 2015, were used to offset
the UC overpayment due to the fact that Claimant had already received those TRA
benefits, we remand the matter to the Board to make that determination. If there


(continued…)


             During the time salary for such disability shall be paid by the
             Commonwealth of Pennsylvania any workmen’s compensation
             received or collected for such period shall be turned over to the
             Commonwealth and paid into the General Fund, and if such
             payment shall not be so made, the amount so due the
             Commonwealth shall be deducted from any salary then or
             thereafter becoming due and owing.


                                            9
are, in fact, any TRA payments for which Claimant is eligible, then the Board is
directed to order that Claimant be paid those amounts. If there were not any TRA
payments for which Claimant is eligible, the Board is directed to treat those
overpayments as no-fault, non-recoupable consistent with its findings used to treat
the $537 remaining after it had used the purported TRA offset.


            Accordingly, we affirm the Board’s order finding Claimant ineligible
for TRA benefits for the claim week ending February 28, 2015. We reverse the
Board’s order finding that it was proper to offset the UC overpayment with TRA
eligibility, and we remand this matter to the Board to make a determination if any
TRA benefits have been used as an offset and, if they had, order payment of those
benefits.



                                      ____________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David L. Wetzel,                         :
                   Petitioner            :
                                         :
            v.                           : Nos. 1911, 1912 C.D. 2016
                                         :
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :




                                     ORDER


            AND NOW, this 4th day of January, 2018, the Unemployment
Compensation Board of Review (Board) order of September 20, 2016, Decision No.
B-592446, is affirmed. The Board order of September 20, 2016, Decision No. B-
592447, is reversed, and we remand this matter to the Board with further proceedings
consistent with this decision. The Board’s Application for Summary Relief or in the
Alternative an Application for Relief in the Form of a Motion to Strike Petitioner’s
Brief and to Dismiss His Appeal is denied.


            Jurisdiction relinquished.



                                         ____________________________________
                                         DAN PELLEGRINI, Senior Judge
