            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas J. George,                           :
                     Petitioner             :
                                            :
       v.                                   : No. 702 C.D. 2019
                                            : SUBMITTED: December 13, 2019
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                  FILED: April 13, 2020

       Thomas J. George (Claimant) petitions for review, pro se, of the May 16, 2019
Order of the Unemployment Compensation Board of Review (Board) affirming the
Referee’s decision to deny Claimant unemployment compensation (UC) benefits.
The Board concluded that Claimant was financially ineligible for UC benefits under
Section 401(a) of the Unemployment Compensation Law because Claimant had
insufficient base-year wages outside of his highest quarter.1 We affirm the Board’s
Order.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(a). Section 401(a) of the Law provides in relevant part:

       Compensation shall be payable to any employee who is or becomes unemployed
       and who . . . [h]as, within his base year, been paid wages for employment as
       required by section 404(c) of th[e Law] [and] . . . not less than thirty-seven per
                                          Background
       Claimant filed an application for UC benefits in Pennsylvania, effective
December 11, 2018, thereby establishing Claimant’s base year as July 1, 2017
through June 30, 2018.2 Bd.’s Finding of Fact (F.F.) No. 1.3 Claimant had three
different employers during his base year: Alcoa; Sherpa, LLC (Sherpa); and
Resources Connection, LLC (Resources Connection). Id. No. 2.



       centum (37%) of the employee’s total base year wages have been paid in one or
       more quarters, other than the highest quarter in such employee’s base year.

43 P.S. § 801(a).

       2
          A claimant’s “base year” is defined as “the first four of the last five completed calendar
quarters immediately preceding the first day of an individual’s benefit year.” Section 4(a) of the
Law, 43 P.S. § 753(a). Under Section 4(d) of the Law, the “calendar quarter” used to determine a
claimant’s base year is the “period of three consecutive calendar months ending on March thirty-
first, June thirtieth, September thirtieth[,] or December thirty-first, or the equivalent thereof.” 43
P.S. § 753(d). For the purpose of computing base-year wages, wages are allocated to the quarter
in which they are paid, rather than to the quarter in which the claimant performed the work. Section
4(x) of the Law, 43 P.S. § 753(x).

          In his brief, Claimant points out that both the Referee and the Board used an incorrect
effective date for his UC application, because he filed his application on November 11, 2018, not
December 11, 2018. See Record (R.) Item No. 1 (noting an application for benefits date of
“11/11/18”); Notes of Testimony (N.T.), 1/28/19, at 2 (wherein the Referee states that Claimant’s
“application filed 11/11/18 required a base year, beginning July 1, [20]17 and ending June 30[],
2018”); see also 34 Pa. Code § 65.42 (“An application for benefits is effective on the first day of
the calendar week in which the application is filed . . . .”). However, even with this apparent
typographical error, Claimant’s base year for determining his financial eligibility in Pennsylvania
is still the same, because November and December both fall within the same calendar quarter. See
43 P.S. § 753(d).

       3
         The Board largely adopted the Referee’s factual findings, but it modified the dollar
amounts in Finding of Fact Numbers 10 and 11 based on the evidence of record. Bd.’s Order,
5/16/19, at 1. The Board also added one of its own factual findings. Id. These modifications and
additions to the factual findings are incorporated into the above discussion.



                                                  2
      Claimant worked for Alcoa in Pennsylvania during the third quarter of (3Q)
2017 and earned gross wages in the amount of $27,162.86. Id. No. 3. Claimant
worked for Sherpa in North Carolina during the fourth quarter of (4Q) 2017 and
earned gross wages of $13,754. Id. No. 5.4 Claimant also worked for Sherpa in
North Carolina during the first quarter of (1Q) 2018 and earned gross wages of
$17,566.68.     Id.   Finally, Claimant worked for Resources Connection in
Pennsylvania during the second quarter of (2Q) 2018 and earned gross wages in the
amount of $5,410.80. Id. Nos. 3, 4. At the time he filed his UC application in
Pennsylvania, Claimant resided in Pennsylvania. See R. Item No. 1.
      In May 2018, Claimant filed an application for UC benefits in North Carolina,
establishing a base year of January 1, 2017 through December 31, 2017. Bd.’s F.F.
No. 6; N.T., 1/28/19, Ex. 1.       The North Carolina unemployment authorities
determined that Claimant was eligible for UC benefits based on wages paid to him
in 1Q, 2Q, 3Q, and 4Q 2017. Bd.’s F.F. No. 6. In establishing this claim, North
Carolina used Claimant’s wages from Alcoa in 1Q, 2Q, and 3Q 2017 (earned in
Pennsylvania) and from Sherpa in 4Q 2017 (earned in North Carolina). Id. Nos. 7,
8. North Carolina paid UC benefits to Claimant in the amount of $350 per week for
12 weeks, which was the maximum number of benefit weeks that Claimant was
eligible to collect UC benefits from North Carolina. Bd.’s Order, 5/16/19, at 1.
      For his Pennsylvania UC claim, Claimant had available Pennsylvania wages
from Resources Connection in the amount of $5,410.80,which were paid in 2Q 2018.
Bd.’s F.F. No. 9. Claimant also had available wages from 1Q 2018 transferred from
North Carolina in the amount of $17,767.50. Id. No. 10; Bd.’s Order, 5/16/19, at 1.


      4
         Claimant resided in North Carolina during his employment with Sherpa. See N.T.,
1/28/19, Exs. 2-4.


                                           3
Claimant’s base-year wages for the Pennsylvania claim totaled $23,178.30. Bd.’s
F.F. No. 11; Bd.’s Order, 5/16/19, at 1.
       On November 28, 2018, the local UC Service Center issued a Notice of
Financial Determination, finding Claimant financially ineligible for UC benefits.
See N.T., 1/28/19, at 2. Claimant timely appealed to the Referee, who held an
evidentiary hearing on January 28, 2019.5 Claimant appeared with a non-legal
representative and testified on his own behalf. None of Claimant’s employers
appeared.6
       At the hearing, Claimant entered into evidence several documents showing
Claimant’s wages from his three employers during his base year of July 1, 2017
through June 30, 2018. N.T., 1/28/19, at 4-6. Claimant testified that when he applied
for UC benefits in North Carolina in May 2018, North Carolina used wages from his
employment with Alcoa in Pennsylvania during 3Q 2017 to establish his financial
eligibility in North Carolina. Id. at 7. Claimant testified that “after [his] 12 weeks
of unemployment were up in North Carolina,” he was not eligible to file for
extensions under North Carolina law, for the following reason:


       5
         The Notice of Financial Determination issued to Claimant is not included in the record.
At the hearing, the Referee stated:

       [The Department of Labor and Industry (Department)] . . . did[ not] send us a copy
       of the [Notice of Financial] Determination, but I believe the one that was appealed
       was dated 11/28/2018, which found that the Claimant did not financially qualify
       for [UC] benefits; specifically, finding that he had insufficient wages outside the
       high[est] quarter to establish financial eligibility.

N.T., 1/28/19, at 2.

       6
         In response to the Notice of Hearing, Resources Connection sent a letter to the Referee
with Claimant’s wage information, but stated that it would not participate in the hearing. R. Item
No. 6.


                                                4
      Since I do not live in North Carolina, I had not lived in North Carolina
      in the past six months or my last wages were not earned in North
      Carolina, . . . I was ineligible to file an extension [in North Carolina,]
      and [the North Carolina unemployment authorities told me] to file a
      claim in Pennsylvania for up to 14 weeks and North Carolina would
      transfer those wages back up to Pennsylvania. That’s what a
      representative from North Carolina told me.

                                         ...

      . . . [S]o long as I had kept an accurate work search record and I was
      able to document that, which I had, and/or I had no criminal activity, I
      would be eligible for extensions of benefits for . . . up to a total of 26
      weeks. So, an additional . . . 14 weeks, but I would have to, every four
      weeks, actually apply for extensions.

Id. at 8-9 (emphasis added). When asked which wages he was told would be
transferred to Pennsylvania, Claimant replied, the “[t]hird quarter of 2017 and [the]
fourth quarter of 2017.” Id. at 8. Claimant testified that he exhausted his 12 weeks
of UC benefits in North Carolina as of November 10, 2018, the day before he filed
his UC application in Pennsylvania. Id. at 9.
      Following the hearing, the Referee determined that Claimant’s wages during
his base year were insufficient to establish his financial eligibility for UC benefits
under Section 401(a) of the Law. The Referee concluded as follows:

      The Referee considered [C]laimant’s argument that he had other wages
      during the base[-year] period. However, as reflected in the findings,
      these wages were utilized to establish [C]laimant’s eligibility for [UC]
      benefits in . . . North Carolina. Accordingly, they could not be used
      again to establish financial[] eligibility in Pennsylvania. A review of
      North Carolina law revealed that [C]laimant’s wages in the last two
      quarters of his base year ([3Q and 4Q] 2017) would have been used by
      North Carolina to establish a benefit rate and [the] duration of payments
      when he filed his claim [in North Carolina] in May 2018. Therefore,
      the Referee must conclude that th[ose] wages have been previously



                                          5
      used for unemployment purposes and are not available for this
      [Pennsylvania] claim.

Ref.’s Order, 2/1/19, at 2-3 (emphasis added). The Referee determined that without
his 3Q and 4Q 2017 wages, Claimant was financially ineligible for UC benefits
because he had insufficient base-year wages outside of his highest quarter under
Section 401(a) of the Law. Therefore, the Referee affirmed the Service Center’s
determination.
      Claimant timely appealed to the Board, which adopted the Referee’s findings
of fact and conclusions of law, with modifications. See supra note 3. In concluding
that Claimant was financially ineligible for UC benefits, the Board specifically
applied the Department’s regulation at 34 Pa. Code § 65.133 (emphasis added),
which states:

      For the purposes of this subchapter, benefit credit shall be deemed to
      be unavailable whenever benefits have been exhausted, terminated or
      postponed either for an indefinite period or for the entire period in
      which benefits would otherwise be payable, or whenever benefits are
      affected by the application of a seasonal restriction.

Applying this regulation to Claimant’s application for UC benefits, the Board
concluded:

      North Carolina used wages from Sherpa LLC and wages [C]laimant
      earned in Pennsylvania during [1Q, 2Q, 3Q, and 4Q] 2017 to determine
      [C]laimant’s eligibility and concluded that [C]laimant was eligible for
      [12] weeks of UC benefits at $350.00 per week. [C]laimant thereafter
      received [12] weeks of benefits from North Carolina at $350.00 per
      week, thereby exhausting his benefits in North Carolina. Therefore,
      [C]laimant had no available credits left from the four quarters in 2017
      that could be used in calculating his financial eligibility in
      Pennsylvania . . . . The wages used by North Carolina cannot be used
      again in calculating [C]laimant’s financial eligibility in Pennsylvania.



                                         6
Bd.’s Order, 5/16/19, at 1-2 (emphasis added). Therefore, the Board affirmed the
Referee’s decision. Claimant now petitions this Court for review.7
                                            Analysis
       On appeal, Claimant asserts that the Board “capriciously disregarded”
Claimant’s “uncontradicted evidence[,] . . . which clearly established that he had
available credits left from his four . . . quarters in 2017 that could have been used in
calculating his financial eligibility in Pennsylvania.”               Claimant’s Br. at 6-7.
Specifically, Claimant argues that the Board ignored his unrefuted testimony that,
after he exhausted his benefits in North Carolina, the North Carolina unemployment
authorities advised him “to file a claim in Pennsylvania for up to 14 weeks and North
Carolina would transfer th[e] wages [from 3Q and 4Q 2017] back up to
Pennsylvania.” N.T., 1/28/19, at 8. Thus, Claimant contends that he had 14 weeks
of available benefit credits that could have been used to establish his financial
eligibility in Pennsylvania.
       In support of this assertion, Claimant relies exclusively on the Department’s
regulation at 34 Pa. Code § 65.132(a), which governs interstate claims for UC
benefits. Section 65.132(a) provides:

       If a claimant files a claim against a state, and it is determined by the
       state that the claimant has available benefit credits in that state, then
       claims shall be filed only against that state as long as benefit credits are


       7
          A claimant has the burden of proving his or her financially eligibility for UC benefits.
Pagliei v. Unemployment Comp. Bd. of Review, 37 A.3d 24, 26 (Pa. Cmwlth. 2012). Where, as
here, the party with the burden of proof was the only party to present evidence and did not prevail
before the Board, our scope of review is limited to determining whether the claimant’s
constitutional rights were violated, whether the Board committed an error of law, or whether the
Board capriciously disregarded competent evidence. Unangst v. Unemployment Comp. Bd. of
Review, 690 A.2d 1305, 1307 n.3 (Pa. Cmwlth. 1997).



                                                7
       available in that state. Thereafter, the claimant may file claims against
       any other state in which there are available benefit credits.

34 Pa. Code § 65.132(a) (emphasis added).8 Claimant, however, overlooks 34 Pa.
Code § 65.133(a), which explains when benefit credits become “unavailable” for
purposes of interstate claims. The regulation at 34 Pa. Code § 65.133(a) (emphasis
added) states that “benefit credit[s] shall be deemed to be unavailable whenever
benefits have been exhausted, terminated or postponed either for an indefinite period
or for the entire period in which benefits would otherwise be payable.”
       Here, Claimant filed a UC application in North Carolina in May 2018,
establishing a base year for his North Carolina claim of January 1, 2017 through
December 31, 2017. N.T., 1/28/19, Ex. 1; Bd.’s F.F. No. 6. The North Carolina
unemployment authorities determined that, under North Carolina law, Claimant was
entitled to UC benefits in the amount of $350 per week for a maximum of 12 weeks.
Bd.’s Order, 5/16/19, at 1. Claimant testified that he exhausted his 12 weeks of
North Carolina benefits as of November 10, 2018. N.T., 1/28/19, at 9. Under 34 Pa.
Code § 65.132(a), Claimant would be permitted to file a subsequent UC claim in
Pennsylvania only if he had “available benefit credits” in Pennsylvania. The Board
found that, under 34 Pa. Code § 65.133(a), because North Carolina had used all of


       8
          The Department’s regulations do not define “benefit credits” as used in the context of
interstate claims. See 34 Pa. Code § 61.1. However, Section 4(m.3) of the Law defines “partial
benefit credit” as follows:

       “Partial Benefit Credit” means 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 [Law], which is not in excess of thirty per centum (30%) of
       the individual’s weekly benefit rate or six dollars whichever is the greater. Such
       partial benefit credit if not a multiple of one dollar ($1) shall be computed to the
       next higher multiple of one dollar ($1).

43 P.S. § 753(m.3).


                                                8
Claimant’s wages from 2017, including those earned in Pennsylvania, to determine
his financial eligibility in North Carolina, and because Claimant exhausted his
benefit credits in North Carolina, “[C]laimant had no available credits left . . . that
could be used in calculating his financial eligibility in Pennsylvania.” Bd.’s Order,
5/16/19, at 1.
      Claimant contends that the Board disregarded his unrefuted testimony that the
North Carolina unemployment authorities told him he had “14 weeks” of available
benefit credits from “the four quarters of 2017” that could have been used to
establish his financial eligibility in Pennsylvania. Claimant’s Br. at 7. However,
even accepting as true Claimant’s testimony that he was told that he had 14 weeks
of available benefit credits for use in Pennsylvania, the Board correctly determined,
based on the evidence of record, that he did not have available benefit credits. See
Bd.’s Order, 5/16/19, at 1. In any event, the only relevant calendar quarters for
determining Claimant’s financial eligibility in Pennsylvania were the calendar
quarters in his Pennsylvania base year – that is, 3Q and 4Q 2017 and 1Q and 2Q
2018. Bd.’s F.F. No. 1; see 43 P.S. § 753(a), (d). Thus, even if Claimant had
available benefit credits from the “four quarters of 2017,” there is no record evidence
establishing that such credits fell within his Pennsylvania base year, which included
only the latter two quarters of 2017.
      Moreover, it is undisputed that North Carolina used Claimant’s wages from
3Q and 4Q 2017 to determine his eligibility for UC benefits in that state, Bd.’s F.F.
Nos. 7, 8; N.T., 1/28/19, Exs. 1, 2, and those two quarters also fell within Claimant’s
base year for his Pennsylvania claim. Under Pennsylvania law, when a claimant’s
quarterly wages are used to determine his or her eligibility for UC benefits in a prior
base year, they “cannot be used again to calculate [the c]laimant’s eligibility in [a]



                                          9
subsequent application for UC benefits.” Logan v. Unemployment Comp. Bd. of
Review, 103 A.2d 451, 453 (Pa. Cmwlth. 2014); see Lewis v. Unemployment Comp.
Bd. of Review, 454 A.2d 1191, 1193 (Pa. Cmwlth. 1983) (“[W]e would doubt that
the legislature intended a claimant to be entitled to use the same quarter’s wages
twice – i.e.[,] for two successive benefit years.”). Consequently, because North
Carolina used Claimant’s wages from 3Q and 4Q 2017 to establish his financial
eligibility for UC benefits in that state, we conclude that Claimant could not use
those same quarterly wages to establish his financial eligibility in Pennsylvania.9




        9
          In its brief filed with this Court, the Board also asserts that “[f]ederal law prohibits wages
used to determine claimant’s financial eligibility in one [s]tate from being used again to establish
[his or her] financial eligibility in another [s]tate.” Bd.’s Br. at 5. In support of this argument, the
Board cites numerous federal regulations governing the filing of combined-wage claims under an
interstate arrangement. Id. at 7-10; see 20 C.F.R. § 616.1 (stating that under an interstate
arrangement, “an unemployed worker with covered employment or wages in more than one [s]tate
may combine all such employment and wages in one [s]tate, in order to qualify for benefits or to
receive more benefits”). However, neither the Referee nor the Board relied on federal combined-
wage-claim law in concluding that Claimant was financially ineligible for UC benefits in
Pennsylvania, and the record before this Court does not indicate whether Claimant elected to file
a combined-wage claim in North Carolina. See 20 C.F.R. § 616.7 (setting forth the requirements
for a claimant who “elect[s] to file a [c]ombined-[w]age [c]laim”).

        Nonetheless, even if Claimant elected to file a combined-wage claim in North Carolina,
we would still conclude that Claimant was prohibited from using his wages from 3Q and 4Q 2017
to establish his eligibility for UC benefits in Pennsylvania, since those wages were already used to
establish his eligibility in North Carolina. See 20 C.F.R. § 616.10 (“Employment and wages which
have been used under [an interstate] arrangement for a determination of [UC] benefits which
establishes a benefit year shall not thereafter be used by any [s]tate as the basis for another
monetary determination of [UC] benefits.”) (emphasis added). The federal regulations further
provide that “a claimant will not be considered to have unused benefit rights based on a benefit
year which the claimant has established under a [s]tate or [f]ederal [UC] law if[] . . . [t]he claimant
has exhausted his/her rights to all benefits based on such benefit year.” 20 C.F.R. § 616.7(b)(1)
(emphasis added). As explained above, because Claimant exhausted his benefit rights under North
Carolina law before filing his Pennsylvania UC claim, he did not have unused benefit rights
available to establish his eligibility for benefits in Pennsylvania.


                                                  10
      This Court will disturb the Board’s “adjudication for a capricious disregard of
evidence . . . only where the [Board] has refused to resolve conflicts in the evidence,
has not made essential credibility determinations[,] or has completely ignored
overwhelming evidence without comment.” HPM Consulting v. Unemployment
Comp. Bd. of Review, 185 A.3d 1190, 1196-97 (Pa. Cmwlth. 2018); see Wise v.
Unemployment Comp. Bd. of Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015)
(stating that capricious disregard “occurs where the fact[]finder willfully and
deliberately disregards competent and relevant evidence that one of ordinary
intelligence could not possibly have avoided in reaching a result”). Contrary to
Claimant’s assertion on appeal, the Board did not ignore Claimant’s evidence
without comment or refuse to resolve conflicts in the evidence. Rather, it is evident
from the Board’s decision that it considered all of Claimant’s testimonial and
documentary evidence in determining his financial eligibility for UC benefits in
Pennsylvania. The Board specifically relied on that evidence in modifying the
Referee’s factual findings and in making its own additional factual finding. See
supra note 3. Despite Claimant’s testimony that he was told that “North Carolina
would transfer th[e] wages [from 3Q and 4Q 2017] back up to Pennsylvania,” N.T.,
1/28/19, at 8, the Board explained that, under the Department’s regulations, those
wages could not be used again to calculate his financial eligibility in Pennsylvania.
Bd.’s Order, 5/16/19, at 1. Therefore, based on our review of the record, we
conclude that the Board did not capriciously disregard competent evidence.
                                     Conclusion
      Because Claimant exhausted his available benefit credits in North Carolina
before filing his Pennsylvania claim, and because North Carolina used Claimant’s
wages from 3Q and 4Q 2017 to calculate Claimant’s financial eligibility for UC



                                          11
benefits in North Carolina, those wages could not be used again to establish
Claimant’s financial eligibility for UC benefits in Pennsylvania. Accordingly, we
affirm the Board’s Order.10


                                             ________________________________
                                             ELLEN CEISLER, Judge




       10
           We note that Claimant devotes the majority of his appellate brief to arguing that the
Board violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. See Claimant’s Br. at 8-13. However, Claimant does not raise a
constitutional challenge in either his Petition for Review or his Statement of Questions Involved
on appeal. Therefore, we conclude that he has waived this claim. See Oliver v. Unemployment
Comp. Bd. of Review, 29 A.3d 95, 98 (Pa. Cmwlth. 2011) (stating that where claims that
constitutional rights were violated are not raised in a claimant’s petition for review, they are
waived); Pa. R.A.P. 2116(a) (“No question will be considered [on appeal] unless it is stated in the
statement of questions involved or is fairly suggested thereby.”).


                                                12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas J. George,                 :
                    Petitioner    :
                                  :
     v.                           : No. 702 C.D. 2019
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                 ORDER


     AND NOW, this 13th day of April, 2020, the Order of the Unemployment
Compensation Board of Review, dated May 16, 2019, is hereby AFFIRMED.


                                  __________________________________
                                  ELLEN CEISLER, Judge
