          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jon Galante,                             :
                           Petitioner    :
                                         :
                     v.                  :   No. 1962 C.D. 2015
                                         :   SUBMITTED: April 1, 2016
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :




BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                             FILED: July 14, 2016



               Claimant Jon Galante, appearing pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s order that unemployment compensation benefits were payable
to Claimant in the amount of $59.00 per week from December 10, 2011, through
February 18, 2012, and which modified the referee’s order to provide that an
overpayment to Claimant was not a fault overpayment but, rather, a non-fault
overpayment. We affirm.
               The referee, affirmed by the Board,1 found as follows.

                     1.    The claimant filed an application for
               unemployment compensation benefits with an effective
               date of October 16, 2011 establishing a weekly benefit
               amount of $210, partial benefit credit of $84 and a
               combined amount of $294.

                     2.     The claimant filed for and received
               unemployment compensation benefits as listed in the
               following table:


Claim Week               Reported                   Actual Earnings        UC Benefits Paid
                         Earnings
10/29/2011               0.00                       $90.00                 Waiting Week
12/10/2011               0.00                       $239.13                           $210
12/17/2011               0.00                       $239.13                           $210
12/24/2011               0.00                       $239.13                           $210
12/31/2011               0.00                       $239.13                           $210
1/7/2012                 0.00                       $239.13                           $210
1/14/2012                0.00                       $239.13                           $210
1/21/2012                0.00                       $239.13                           $210
1/28/2012                0.00                       $239.13                           $210
2/4/2012                 0.00                       $239.13                           $210
2/11/2012                0.00                       $239.13                           $210
2/18/2012                0.00                       $239.13                           $210

                      3.    The wages listed in the actual earnings
               column were earned by the claimant during the weeks
               listed from Moniteau School District.

                     4.     The claimant signed a contract with the
               Moniteau School District to be the [a]ssistant basketball
               coach for the 2011-2012 school year.


    1
       The Board adopted and incorporated the referee’s findings of fact and conclusions of law
except that it deleted any reference to a fault overpayment, finding record evidence of Claimant’s
fault insufficient.



                                                2
                   5.     The claimant was paid a salary of $3587 for
             the basketball season.

                  6.  The basketball season officially begins in
             Mid-November and ends after the final game.

                  7.    The final game for the 2011-12 school year
             was February 23, 2012.

                     8.   The claimant did not report his coaching
             wages when filing for unemployment benefits as he
             attributed his earnings to the entire year and did not
             report the result as they were less than his partial benefit
             credit.

(Referee’s Decision, mailed February 6, 2015, at 1-2, Findings of Fact Nos. 1-8.)

             The referee then reasoned that Claimant received unemployment
compensation benefits to which he was not entitled because he failed properly to
report his earnings. The referee also reasoned, however, that Claimant was not
ineligible to receive partial unemployment compensation benefits, determining in
this regard that Claimant was overpaid due to his own fault as follows:


Claim Week                   Payable                      Overpaid
10/26/2011                   Valid Waiting Week           $0
12/10/2011                   $59                          $153
12/17/2011                   $59                          $153
12/31/2011                   $59                          $153
1/7/2012                     $59                          $153
1/14/2012                    $59                          $153
1/21/2012                    $59                          $153
1/28/2012                    $59                          $153
2/4/2012                     $59                          $153


                                          3
2/11/2012                   $59                          $153
2/18/2012                   $59                          $153


(Referee’s Decision, mailed February 6, 2015, at 3.)
             On appeal, as set forth above, the Board affirmed the referee’s
decision, but with a modification regarding the $1,530.00 fault overpayment. The
Board specifically stated that it “credits the claimant’s testimony that because he
was paid one lump sum for coaching, he forgot he was getting paid at the time he
filed for benefits. Therefore, a non-fault payment is established.” (Board’s
Decision, mailed April 9, 2015, at 1.)
             Afterward, the Board granted Claimant’s request for reconsideration
and vacated its order. By decision mailed September 9, 2015, however, the Board
reinstated its decision mailed April 9, 2015. In doing so, the Board reasoned that,
“after giving careful consideration to all of the testimony and issues raised in the
claimant’s written argument[, the Board] finds the employer’s testimony credible
that the basketball season is not a year round position, and furthermore, that the
claimant failed to establish that the additional activities he performed before and
after the season were mandated under his coaching contract[.]” (Board’s Decision,
mailed September 9, 2015, at 1.) Claimant’s petition for review to this Court
followed.
             On appeal here, Claimant first argues that, pursuant to his
employment contract, his wages as an assistant basketball coach were distributed
in one lump sum, which he earned over a fifty-two week period. Thus, Claimant
contends, he owes no money to the unemployment compensation authorities
because his annual salary of $3,587.00, divided by fifty-two weeks, results in a




                                         4
weekly salary of $68.98, which is below the partial benefit credit of $84.2 In
support of his position, Claimant asserts that “[n]owhere in the contract does it
state [that he] was to be paid for 10 weeks for 2011-12 like [Employer’s witness]
testified.” Claimant’s brief at 12.3
               Unfortunately for Claimant, however, his employment contract is not
contained in the original record certified to this Court by the unemployment
compensation authorities.4 Moreover, the referee, affirmed by the Board,
determined based on Employer’s witness’s testimony, that payment for Claimant’s
position was seasonal.5 (Notes of Testimony (N.T.), Telephone Hearing of January
29, 2015, at 14). The law is clear that, in an unemployment compensation
proceeding, the Board is the ultimate fact finder, with the power to resolve
evidentiary conflicts and witness credibility. Curran v. Unemployment Comp. Bd.
of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2001). Because the Board did not
accept Claimant’s version of the facts, Claimant’s first argument lacks merit.



    2
      A partial benefit credit is defined in part as “that part of the remuneration, if any paid or
payable to an individual with respect to a week for which benefits are claimed under the
provisions of this act, which is not in excess of thirty per centum (30%) of the individual’s
weekly benefit rate or six dollars whichever is the greater.” Section 4(m.3) of the Unemployment
Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. §753(m.3).
    3
      The record reflects that the witness to whom Claimant refers is Deb Mihalek, Moniteau
School District’s “confidential secretary of payroll.” (Notes of Testimony (N.T.), Telephone
Hearing of January 29, 2015, at 1).
    4
      While referred to by the referee and Claimant respectively as Exhibit #9 (N.T., Telephone
Hearing of January 29, 2015, at 5-6 and 14), the Board asserts in its brief that, “notably, neither
party submitted the actual contract into the record.” (Board’s brief at 12). Claimant does not
contend otherwise.
    5
      Ms. Mihalek was the only witness to offer testimony to this effect. For example, in
response to Claimant’s question why she stated that his pay was for ten weeks rather than the
whole year, Ms. Mihalek stated that it was because “the basketball season is not for the full
school year.” (N.T., Telephone Hearing of January 29, 2015, at 14.)



                                                5
               Next, Claimant asserts that the referee conducted the hearing
improperly because she interrupted him on multiple occasions, thereby prohibiting
him from making and completing statements and from asking and completing
questions that would have allowed him “the opportunity to disallow the hearsay.”
(Claimant’s brief at 20). While Claimant did not specifically raise the issue of the
referee’s failure to afford him a proper hearing in his petition for review to this
Court, we are able to address this issue from the certified record and thus will do
so. Pa. R.A.P. 1513(d).
               In this regard, having read the notes of testimony, which are nearly
twenty-six pages long, we note that the referee reminded the parties of their rights,
(N.T., Telephone Hearing of January 29, 2015, at 2), gave Claimant the
opportunity to cross-examine the School District’s sole witness, (id. at 11-15),
gave Claimant the opportunity to testify on his own behalf, (id. at 18-21) and gave
Claimant the chance to offer additional information, (id. at 23.) When asked if
there was “[a]nything else,” however, Claimant specifically replied: “Nope.” (Id.)
Moreover, we note that the School District’s witness’s testimony regarding how
Claimant was paid was by definition not hearsay, because she was the payroll
secretary called to testify at the hearing regarding her specific knowledge of the
subject. Finally, it has long been the law of this Commonwealth that a layperson
who chooses to represent himself in a legal proceeding assumes, to a reasonable
extent, the risk that his lack of legal prowess and training will be his undoing.
Stugart v. Unemployment Comp. Bd. of Rev., 85 A.3d 606, 609 (Pa. Cmwlth.
2014). The referee was not required to show Claimant any deference beyond that
which she would have shown him had he had an attorney, id., and from our review
of the record, we are satisfied that Claimant in this matter received all the
deference that he was due. For these reasons, Claimant’s second argument also
lacks merit.

                                          6
Accordingly, we affirm the order of the Board.




                         _____________________________________
                         BONNIE BRIGANCE LEADBETTER,
                         Senior Judge




                           7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jon Galante,                            :
                        Petitioner      :
                                        :
                   v.                   :   No. 1962 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


               AND NOW, this 14th day of July, 2016, the order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
