                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul D. Asturi,                               :
                     Petitioner               :
                                              :   No. 218 C.D. 2015
              v.                              :
                                              :   Submitted: July 17, 2015
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: September 3, 2015


              Paul D. Asturi (Claimant) petitions for review of the December 11, 2014
order of the Unemployment Compensation Board of Review (Board), which affirmed
a referee’s decision that Claimant was ineligible for benefits under sections 401,
401(c), 4(u), and 404(d) of the Unemployment Compensation Law (Law)1 and

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§801,
801(c), 753(u), and 804(d). Section 401 of the Law simply states that “[c]ompensation shall be
payable to any employe who is or becomes unemployed. . . .” 43 P.S. §801. Section 401(c)
requires the employee to make a “valid application for benefits” in order to receive such
compensation. 43 P.S. §801(c). Section 4(u) states that:

              An individual shall be deemed unemployed (I) with respect to any
              week (i) during which he performs no services for which
              remuneration is paid or payable to him and (ii) with respect to which
(Footnote continued on next page…)
assessed a fault overpayment in the amount of $3,682.00 under section 804(a) of the
Law.2 The referee further imposed sixteen penalty weeks and a financial penalty in
the amount of $552.30 under sections 801(b) and (c) of the Law.3
               The underlying facts are not in dispute. Claimant originally worked full-
time for the Commonwealth, but for reasons not apparent in the record, his position
either ended or was eliminated.           On May 19, 2013, Claimant filed a claim for
unemployment compensation benefits, establishing a weekly benefit rate of $263.00
and a partial benefit credit of $79.00, for a total of $342.00. Claimant later accepted a
part-time position with the Pennsylvania Department of Transportation (Employer),
earning $16.69 per hour.              Nevertheless, Claimant continued receiving full
unemployment compensation benefits.               In filing his bi-weekly claims, Claimant
repeatedly denied that he was working and reported zero earnings.
               In early 2014, the Department of Labor and Industry’s Bureau of
Unemployment Compensation Benefits and Allowances (Bureau) initiated an
investigation into Claimant’s earnings by sending Employer a form entitled

(continued…)

               no remuneration is paid or payable to him, or (II) with respect to any
               week of less than his full-time work if the remuneration paid or
               payable to him with respect to such week is less than his weekly
               benefit rate plus his partial benefit credit.

43 P.S. §753(u). Finally, section 404(d) allows for the payment of partial compensation. 43 P.S.
§804(d).

       2
         43 P.S. §874(a). This section provides for the recoupment of any compensation paid to
“[a]ny person who by reason of his fault has received any sum as compensation under this act . . . .”

       3
         43 P.S. §§871(b), (c). These sections provide for the imposition of penalty weeks as well
as a penalty in the amount of 15% of the compensation paid against any person who makes a false
statement or knowingly fails to disclose a material fact to obtain compensation under the Law.



                                                 2
“Employer Inquiry Notice,” requesting a detailed statement of Claimant’s earnings in
the third quarter of 2013. Employer returned the form, which revealed that Claimant
earned in excess of $342.00 per week for the weeks ending July 6, 2013, through
October 5, 2013.4 In a “Claimant Questionnaire,” Claimant stated that he believed
that the wages he earned did not need to be reported because they were below the
total of his weekly benefit rate and partial benefit credit.
                Thereafter, the Department of Labor and Industry (Department) issued
separate notices of determination disapproving Claimant’s claims for the weeks
ending July 6, 2013, through October 5, 2013; concluding that Claimant failed to file
a valid application for benefits for each of these weeks; and concluding that Claimant
intentionally provided false information to the Bureau which resulted in a fault
overpayment of $3,682.00 in unemployment compensation benefits. The Department
further imposed upon Claimant sixteen penalty weeks and a 15% financial penalty in
the amount of $552.30.


      4
          Specifically, the form reflected that Claimant earned the following wages:

                June 30 to July 6               $400.50 + $91.66 (holiday pay)
                July 7 to July 13               $484.61
                July 14 to July 20              $564.71
                July 21 to July 27              $516.65
                July 28 to August 3             $520.65
                August 4 to August 10           $416.52 + $96.12 (holiday pay)
                August 11 to August 17          $510.65
                August 18 to August 24          $484.61
                August 25 to August 31          $400.50 + $96.12 (holiday pay)
                Sept. 1 to Sept. 7              $548.69
                Sept. 8 to Sept. 14             $484.61
                Sept. 15 to Sept. 21            $464.58 + $88.11 (civil leave)
                Sept. 22 to Sept. 28            $508.63
                Sept. 29 to Oct. 5              $484.61



                                                  3
            Claimant appealed, alleging that he was confused as to the procedure for
filing for benefits while working part-time, that he believed he was acting in
accordance with the Pennsylvania Unemployment Compensation Handbook (UC
Handbook), and that he never knowingly sought to defraud the Department.
Claimant stated that he would reimburse the Department if he was overpaid, but he
did not believe that the penalty weeks and financial penalty were appropriate. A
hearing was scheduled and held before the referee on October 9, 2014.
            Stephen Martin, a human resource analyst for Employer, testified that
the wage information previously submitted by Employer accurately reflected
Claimant’s wages for the weeks ending July 6, 2013, through October 5, 2013.
Martin also stated that Claimant continues to work part-time for Employer at a rate of
$16.69 per hour.
            Claimant testified that he was not disputing the overpayment, but that he
was disputing the Department’s conclusion that he acted knowingly and with the
intent to defraud. Claimant again cited his confusion with the UC Handbook and its
explanation of benefits while working part-time.
            Upon questioning by the referee, Claimant admitted that each time he
filed a claim he was asked if he was working and he responded in the negative.
Claimant stated that he was confused by the process, and he referenced a situation in
the previous year where he filed for unemployment compensation benefits, responded
incorrectly to a question asked by the Department, and had to wait several weeks
before he received his check. Claimant denied that he failed to report his earnings
because he wanted the money. Instead, Claimant explained he became a father in
2013, had a family to support, and could not afford any delay in the receipt of his
benefits at that time. Claimant testified that he “didn’t want to take any chances on



                                          4
doing something wrong and not getting, you know, what I needed.” (Notes of
Transcript, October 9, 2014, at 7.)
              The referee held that Claimant was ineligible for benefits for the weeks
ending July 6, 2013, through October 5, 2013, under sections 401, 401(c), 4(u), and
404(d) of the Law and assessed a fault overpayment in the amount of $3,682.00 under
section 804(a) of the Law. The referee also imposed sixteen penalty weeks and a
financial penalty in the amount of $552.30 under sections 801(b) and (c) of the Law.
              Claimant appealed to the Board, which adopted the decision of the
referee. The Board specifically discredited Claimant’s testimony that he did not
knowingly or intentionally fail to report his earnings due to alleged confusion.
              On appeal to this Court,5 Claimant argues that the Board erred in
assessing a fault overpayment as well as sixteen penalty weeks and a 15% financial
penalty. We disagree.
              In relevant part, section 804(a) of the Law states as follows:

              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
              as provided by section 806 of the act of April 9, 1929 (P.L.
              343, No. 176), known as "The Fiscal Code," per month or
              fraction of a month from fifteen (15) days after the Notice
              of Overpayment was issued until paid.
43 P.S. §874(a). Sections 801(b) and (c) provide that:


       5
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124,
1127 n.4 (Pa. Cmwlth. 2010).



                                              5
             (b) Whoever makes a false statement knowing it to be false,
             or knowingly fails to disclose a material fact to obtain or
             increase any compensation or other payment under this act
             or under an employment security law of any other state or
             of the Federal Government or of a foreign government, may
             be disqualified in addition to such week or weeks of
             improper payments for a penalty period of two weeks and
             for not more than one additional week for each such week
             of improper payment: Provided, That no additional weeks
             of disqualification shall be imposed under this section if
             prosecution proceedings have been instituted against the
             claimant because of such misrepresentation or non-
             disclosure. The departmental determination imposing
             penalty weeks under the provisions of this subsection shall
             be subject to appeal in the manner provided in this act for
             appeals from determinations of compensation. The penalty
             weeks herein provided for shall be imposed against any
             weeks with respect to which the claimant would otherwise
             be eligible for compensation, under the provisions of this
             act, which begin within the four year period following the
             end of the benefit year with respect to which the improper
             payment or payments occurred.

             (c) Whoever makes a false statement knowing it to be false,
             or knowingly fails to disclose a material fact to obtain or
             increase compensation or other payment under this act or
             under an employment security law of the Federal
             Government 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(b), (c).
             In the present case, Claimant admitted that when he filed his claims for
the weeks ending July 6, 2013, through October 5, 2013, he repeatedly stated that he
was not working, when in fact he had been working in a part-time position with
Employer. Indeed, Martin testified that Claimant continues to work for Employer in
this position.   Additionally, the evidence of record reveals that during this
employment, Claimant’s weekly part-time earnings exceeded $342.00, the total of his


                                         6
weekly benefit rate plus his partial benefit credit, thereby rendering him ineligible for
unemployment compensation benefits for the weeks at issue.
              Claimant did not dispute the earnings evidence reflected in the record.
Moreover, the Board specifically discredited Claimant’s testimony that he was
confused regarding the process and did not knowingly or intentionally fail to report
his earnings.    The law is well settled that in unemployment compensation
proceedings, the Board is the ultimate fact-finder, empowered to determine the
weight and credibility of the evidence, resolve conflicts in the evidence, and is free to
reject even uncontradicted testimony. Ellis v. Unemployment Compensation Board of
Review, 59 A.3d 1159, 1164 (Pa. Cmwlth. 2013); Curran v. Unemployment
Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).
              Because substantial evidence supports the Board’s determination that
Claimant knowingly or intentionally made false statements in submitting his bi-
weekly claims, the Board did not err in assessing a fault overpayment or in imposing
the penalty weeks and financial penalty.
              Accordingly, the order of the Board is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul D. Asturi,                    :
                   Petitioner      :
                                   :    No. 218 C.D. 2015
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                ORDER


            AND NOW, this 3rd day of September, 2015, the order of the
Unemployment Compensation Board of Review, dated December 11, 2014, is
hereby affirmed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
