           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



John E. Narducci,                             :
                                              :
                            Petitioner        :
                                              :
              v.                              :   No. 104 C.D. 2015
                                              :
Unemployment Compensation                     :   Submitted: August 7, 2015
Board of Review,                              :
                                              :
                            Respondent        :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                    FILED: November 4, 2015


       John E. Narducci (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming a UC
Referee’s (Referee) Decision finding Claimant ineligible for benefits pursuant to
Section 402(e) of the UC Law (Law),1 assessing fault overpayment liability under

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) of the Law provides: “an employe shall be ineligible for compensation
for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension
from work for willful misconduct connected with his work.” 43 P.S. § 802(e).
Section 804(a) of the Law2 for compensable weeks October 26, 2013 through April
19, 2014, and imposing penalties pursuant to Section 801(b) and 801(c) of the
Law.3 On appeal, Claimant argues that the Board did not have the authority to re-
open his UC claim months after he was awarded UC benefits because PECO
(Employer) did not timely appeal the receipt of benefits. Because the Board did
not make findings necessary for our appellate review of the issues raised in this




       2
           Section 804(a) provides, in relevant part:

       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.

43 P.S. § 874(a).

       3
           Section 801(b) states, 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 any compensation or other payment
       under this act . . . 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.

43 P.S. § 871(b). According to Section 801(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 . . . 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).



                                                      2
matter, we are constrained to vacate the Board’s Order and remand this matter for
further proceedings in accordance with this opinion.


      Claimant was employed as a full-time service distribution mechanic for
Employer from June 10, 2002 to September 13, 2013. (Referee Decision, Findings
of Fact (FOF) ¶ 1.)      Claimant was suspended pending an investigation on
September 13, 2013.      (FOF ¶ 3.)     Claimant admitted, when questioned by
Employer, that he threw a hand soap bottle at a coworker. (FOF ¶ 5.) Employer
discharged Claimant by letter dated October 14, 2013 for his “violation of safety
rules and [his] actions that were threatening, intimidating, and physically
aggressive.”   (FOF ¶ 6; Discharge Letter, October 14, 2013, R.R. at 1a.)
Claimant’s discharge was effective October 11, 2013. (Discharge Letter, October
14, 2013, R.R. at 1a.) Claimant filed an internet claim for UC benefits on October
13, 2013 indicating that he was laid off by Employer. (Hr’g Tr. at 19, 22, R.R.
34a, 37a.)


      Thereafter, Claimant began receiving UC benefits beginning with the
compensable week of October 26, 2013. (Claim Record, R. Item 1.) However, the
certified record does not contain a Notice of Determination regarding Claimant’s
eligibility for UC benefits. On November 5, 2013, Employer sent a letter to the
Department of Labor and Industry’s (Department) “Employer’s Charge Section
Office” stating that the letter was “in response to form UC 44FR, Request for
Relief from Charges, dated October 21, 2013 with an application date of October
13, 2013.” (Employer Separation Information, Dated 8/12/2014 (Separation
Information), Letter from Employer to Department, November 5, 2013, R. Item 3.)


                                         3
Therein, Employer requested “relief of benefit charges and/or a determination on
[C]laimant’s eligibility” because “[C]laimant was discharged for unacceptable and
improper conduct.”4          (Separation Information, Letter from Employer to
Department, November 5, 2013.)


       On July 30, 2014, Employer sent a letter to the Allentown UC Service
Center (Service Center), wherein Employer references “UC-640, Monthly Notice
of Compensation Charged” notifying Employer of benefit charges to Employer’s
account, and requested an investigation into Claimant’s claim for UC benefits.
(Separation Information, Letter from Employer to Service Center, July 30, 2014,
R. Item 3.)     In addition, Employer directs the Service Center to Employer’s
November 5, 2013 correspondence protesting Claimant’s claim and states that “no
determination/decision has been issued to the protested claim on the separation
issue. . . Please issue a credit adjustment if you determine an error has occurred.”
(Separation Information, Letter from Employer to UC Service Center, July 30,
2014.)


       On August 6, 2014, the Service Center sent Claimant a letter regarding his
application for UC benefits and requested information pertaining to Claimant’s
separation from employment in order to determine his eligibility for benefits.

       4
         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 assigned to pay compensation to an employee
may, upon request from the Department, obtain relief from charges for compensation under
limited circumstances. “Under Pennsylvania law, an Employer seeking relief from charges is
requesting a tax exemption.” First National Bank of Bath v. Unemployment Compensation
Board of Review, 619 A.2d 801, 803 (Pa. Cmwlth. 1992).



                                              4
(Request for Claimant Separation Information (No Response), R. Item 2.) The
record does not contain any response from Claimant to the Service Center’s
request for information. The Service Center also sent Employer a letter requesting
information pertaining to Claimant’s separation from employment, to which
Employer responded that Claimant had been discharged for violating certain
standards of conduct. (Separation Information, Letter from Service Center to
Employer, August 6, 2014; Employer’s Response.)


      Based on the information received from Employer, the Service Center issued
three notices. First, on August 21, 2014, the Service Center issued a Notice of
Determination finding Claimant ineligible for benefits under Section 402(e) of the
Law beginning with the waiting week ending October 19, 2013.           (Notice of
Determination, R.R. at 2a.) Second, on August 21, 2014, the Service Center
determined that Claimant had received $14,768 in UC benefits to which he was not
entitled and issued a “Notice of Determination Overpayment of Benefit (Fault or
NonFault)” (Notice of Overpayment).         (Notice of Overpayment, R.R. at 9a.)
Third, on August 20, 2014, the Service Center issued a determination penalizing
Claimant for twenty-eight weeks of UC benefits and determined that Claimant was
“liable to pay a penalty of $2,215.20, [fifteen percent] of the amount of the
overpaid benefits [Claimant] received.” (Notice of Determination 15% Penalty,
R.R. at 7a.)


      Claimant appealed the determinations. In the Petition for Appeal Claimant,
inter alia, challenged the timing of the August 21, 2014 Notice of Determination
finding Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law.


                                        5
(Claimant’s Petition for Appeal from Determination w/Attachments, Dated
9/5/2014 (Petition for Appeal), R.R. at 12a-14a.) Claimant pointed out that he was
found eligible for UC benefits in October 2013 and that neither Employer nor the
Department challenged his eligibility at that time. (Petition for Appeal, R.R. at
14a.)


        A hearing was held before the Referee. Claimant testified on his own behalf
and Employer presented the testimonies of its Human Resources Manager and
Manager of Corporate Security.       The hearing began with Claimant’s counsel
raising his concern that the Service Center’s determination of ineligibility was
untimely and violated Claimant’s rights. (Hr’g Tr. at 1, R.R. at 16a.) In his
testimony Claimant admitted that, in September 2013, he “side-armed” a hand soap
container at a coworker in response to the coworker touching upon a sensitive
subject and that Claimant had warned the coworker against mentioning the subject
on numerous occasions. (Hr’g Tr. at 19, R.R. at 34a.) Claimant further testified
that he did not think he was fired from his position when Employer suspended him
on September 13, 2013. (Hr’g Tr. at 20, R.R. at 35a.) After almost thirty days on
suspension, Claimant sought the advice of an attorney who told Claimant that, in
the attorney’s opinion, Claimant had been laid off. (Hr’g Tr. at 22, R.R. at 37a.)
Claimant subsequently filed for UC benefits on October 11 or 13, 2013 indicating
that he was laid off by Employer. (Hr’g Tr. at 19, 22, R.R. at 34a, 37a.) Claimant
then received a letter dated October 14, 2013, postmarked October 15, 2013,
stating that his “employment is being terminated effective October 11, 2013 based
on [Claimant’s] violation of safety rules and [his] actions that were threatening,
intimidating, and physically aggressive.” (Hr’g Tr. at 20-21, R.R. at 35a-36a;


                                         6
Discharge Letter, R.R. at 1a.) Claimant testified that he took no action upon
receiving the discharge letter to alert the Service Center as to the reasons for his
termination. (Hr’g Tr. at 22, R.R. at 37a.)


        Based on the evidence presented, the Referee made the following findings of
fact:

        1. The claimant was employed full-time as a service distribution
           mechanic, earning $41.83 an hour. The claimant was employed
           from June 10, 2002 to September 13, 2013, his last day of work.
        2. During the claimant’s employment, the employer received a report
           that the claimant had engaged in workplace violence.
        3. On September 13, 2013, the employer suspended the claimant
           pending investigation.
        4. On September 16, 2013, the employer began an investigation.
        5. When questioned, the claimant admitted to throwing a hand soap
           bottle at a coworker.
        6. On October 14, 2013, the employer discharged claimant by letter
           due to the incident.


(FOF ¶¶ 1-6.) The Referee concluded that: (1) Employer “has shown [C]laimant
was discharged for willful misconduct in accordance with the law;” (2)
“[C]laimant provided false and misleading information in order to receive benefits,
and is therefore at fault for the overpayment that accrued due to his receiving
benefits;” and (3) Claimant should be penalized fifteen percent of the amount
overpaid. (Referee Decision at 2.) Accordingly, the Referee affirmed the Service
Center’s determinations. The Referee did not address Claimant’s contention that
Employer’s challenge to his eligibility to receive UC benefits was untimely.
Claimant appealed the Referee’s Decision to the Board. Upon review, the Board



                                          7
adopted the Referee’s findings of fact and conclusions of law and affirmed the
Referee’s Decision. (Board Order.) Claimant now petitions this Court for review.5


       On appeal to this Court, Claimant first argues that the Board did not have the
authority to re-open his UC claim in 2014 after a final determination of his
eligibility was made in October 2013. Claimant contends that Employer must file
a timely appeal with the Board to challenge the Service Center’s eligibility
determination. Claimant argues that, because he was determined to be eligible for
benefits in October 2013 and Employer did not raise the issue with the Service
Center until July 30, 2014, Employer should be estopped from challenging his
eligibility.


       The Board argues that the determinations before it for adjudication were the
Service Center’s determinations issued in August 2014, from which Claimant filed
an appeal. Further, the Board notes in its brief on appeal to this Court that the
Service Center never issued a determination in 2013 concerning Claimant’s
eligibility for benefits based on Claimant’s separation from Employer and, as such,
there was nothing Employer could appeal.


       Section 501(a) of the Law provides that, upon receiving an application for
UC benefits, the Department must

       5
         This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of facts are
supported by substantial evidence. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa.
2014).



                                               8
       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. Notice shall be given by the department in writing to the
       claimant and each base-year employer of the claimant, stating
       whether or not the claimant is eligible under section four hundred
       and one (a),[6] and, if declared eligible thereunder, the weekly benefit
       rate and the maximum amount of compensation payable. . .

43 P.S. § 821(a) (emphasis added). Notice that an application for UC benefits has
been filed must also be given to the claimant’s last employer. Section 501(b) of
the Law, 43 P.S. § 821(b). Under Section 501(c)(1) of the Law, the Department is
required to “promptly examine each claim . . . for compensation and on the basis of
the facts found by it shall determine whether or not the claim is valid.” 43 P.S. §
821(c)(1). The Department is required to provide notice to the claimant if his or
her claim is determined to be invalid and to provide notice to the employer if the
employer provided information in writing to the Department raising a question
regarding the claimant’s eligibility for any reason other than his or her failure to
comply with Section 401(a) of the Law. Section 501(c)(2), (3) of the Law, 43 P.S.
§ 821(c)(2), (3). Pursuant to Section 501(e), an employer or a claimant may appeal
the initial notice of determination regarding the claimant’s eligibility for UC
benefits within fifteen days of receiving the notice from the Department. 43 P.S. §
821(e).7 Should the Department issue a revised notice of determination without an

       6
         43 P.S. § 801(a). Section 401(a) of the Law provides that “[c]ompensation shall be
payable to any employe who is or becomes unemployed, and who . . . [h]as, within his base year,
been paid wages for employment as required by” the Law. Id.

       7
           Section 501(e) of the Law 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
                                                                              (Continued…)
                                                 9
appeal being taken, such revision must occur within the fifteen day appeal period.
Garza v. Unemployment Compensation Board of Review, 669 A.2d 445, 447 (Pa.
Cmwlth. 1995). Section 509 of the Law 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. Thus, if no revision occurs and no appeals are
taken within fifteen days of the determination of eligibility, “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, 974 (Pa. Cmwlth. 2009).


       Here, the record shows that Claimant applied for UC benefits on October 13,
2013 and began receiving benefits as of October 26, 2013. However, Claimant’s
application for benefits is not in the record. In addition, there is no indication in
the record whether Employer received notice that an application had been filed by
Claimant, as required by Section 501 of the Law, or a notice that the Service
Center determined Claimant eligible for benefits in October 2013. We note that
the Board contends in its brief that the Service Center made its first determination
on Claimant’s eligibility on August 21, 2014. However, neither the Referee nor
the Board made findings of fact and conclusions of law with regard to the Service

       (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) (emphasis added).

                                               10
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. It is well-settled that we may not
infer findings of fact not made by the Board and not supported by the evidence.
Tundel v. Unemployment Compensation Board of Review, 404 A.2d 434, 435 (Pa.
Cmwlth. 1979). As such, we cannot find, given the lack of documentation in the
certified record, whether the Board’s assertion is correct that a determination
regarding Claimant’s eligibility was not issued until August 21, 2014.


      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 passed and the Board would have lacked subject matter
jurisdiction over Claimant’s eligibility for UC benefits.


      The Board is “required to make findings which are ‘. . . necessary to resolve
the issues raised by the evidence and which are relevant to a decision.’” Harris v.
Unemployment Compensation Board of Review, 473 A.2d 251, 252 (Pa. Cmwlth.
1984) (quoting Cicco v. Unemployment Compensation Board of Review, 432 A.2d
1162, 1164 (Pa. Cmwlth. 1981) (emphasis omitted)). When the Board’s findings



                                         11
are inadequate for purposes of appellate review, this Court must remand the matter
to the Board. Id.


      Because the Board did not make findings necessary for our review of the
matters on appeal, we vacate the Board’s Order and remand this matter for further
proceedings consistent with this opinion.




                                            ________________________________
                                            RENÉE COHN JUBELIRER, Judge




                                        12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



John E. Narducci,                       :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 104 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                         Respondent     :


                                      ORDER

      NOW, November 4, 2015, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby VACATED
and this matter is REMANDED for proceedings consistent with this opinion.

      Jurisdiction relinquished.


                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
