               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adrian Lee Canty,                              :
                              Petitioner       :
                                               :
                 v.                            :   No. 2310 C.D. 2015
                                               :   No. 2487 C.D. 2015
Unemployment Compensation                      :   Submitted: May 27, 2016
Board of Review,                               :
                    Respondent                 :



BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: July 28, 2016



                 Petitioner Adrian Lee Canty (Claimant), acting pro se, petitions for
review of two orders of the Unemployment Compensation Board of Review
(Board).       The Board affirmed as modified an Unemployment Compensation
Referee’s (Referee) decisions, in which the Referee concluded that Claimant was
ineligible for both unemployment compensation benefits under Section 401(c) of
the Unemployment Compensation Law (Law)1 and emergency unemployment
compensation (EUC) benefits under Section 4001(b) of the Emergency




       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(c).
Unemployment Compensation Act of 20082 (EUC Act). The Board also affirmed
the Referee’s imposition of a fault overpayment pursuant to Section 804(a) of the
Law3 in the amount of $3,720, as well as imposing a fraud overpayment pursuant
to Section 4005(a) of the EUC Act4 in the amount of $3,810. We now affirm.



       2
          Title IV of the Supplemental Appropriations Act of 2008, Pub. L. No. 110-252,
122 Stat. 2323, 26 U.S.C. § 3304 note. EUC benefits are federally funded and were created by
Congress pursuant to the EUC Act of 2008. McKenna v. Unemployment Comp. Bd. of Review,
981 A.2d 415, 417 (Pa. Cmwlth. 2009). The EUC benefits programs are administered by the
states. Id. In Pennsylvania, unemployed claimants who are not eligible for regular
unemployment compensation benefits from Pennsylvania, another state, the federal government,
or Canada may be eligible for EUC benefits. Id. Eligibility requirements for receipt of regular
unemployment compensation benefits are also applicable to EUC benefits, along with additional
requirements imposed by the EUC Act of 2008. Id.
       3
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 874(a). Section 804 of the Law provides that a claimant who, by reason of fault, receives
unemployment compensation benefits to which the claimant is not entitled must repay the
amount he or she received with interest.
       4
          Title IV of the Supplemental Appropriation Act of 2008, Pub. L. No. 110-252,
122 Stat. 2323, 26 U.S.C. § 3304 note. Section 4005 of the EUC Act, relating to fraud
overpayments, provides in relevant part:
       (a)      IN GENERAL.—If an individual knowingly has made . . . a false
       statement or representation of a material fact, . . . and as a result of such
       false statement or representation or of such nondisclosure such individual
       has received an amount of emergency unemployment compensation under
       this title to which such individual was not entitled, such individual—
              (1)     Shall be ineligible for further emergency unemployment
              compensation under this title in accordance with the provisions of
              the applicable State unemployment compensation law relating to
              fraud in connection with a claim for unemployment compensation;
              ...
       (b)    REPAYMENT.—In the case of individuals who have received
       amounts of emergency unemployment compensation under this title to
       which they were not entitled, the State shall require such individuals to
       repay the amounts of such emergency unemployment compensation to the
(Footnote continued on next page…)
                                                2
             The record shows that, on March 31, 2011, unemployment
compensation authorities (UC authorities) received a claim for unemployment
compensation benefits purportedly filed by Claimant, which UC authorities
granted.   (Certified Record (C.R.) Item No. 1.)             Thereafter, UC authorities
continued to receive and pay bi-weekly claims filed in Claimant’s name. (Id.)
During the relevant time period when UC authorities received these claims for
benefits, Claimant was employed by the Philadelphia Corp. for the Aging
(Employer), where she remained employed until April of 2012. (Id.) Claimant
was earning wages while employed, yet the claims for benefits indicated that
Claimant had no earnings. (Id.) In addition, UC authorities also received and paid
claims for EUC benefits later in the year 2011. (Id.)
             From June 15, 2015, to June 25, 2015, the Harrisburg UC Overflow
Center (Service Center) issued Claimant a total of six notices of determinations.
(C.R., Item No. 4.) Three of those determinations, issued on June 15, 2015:
(1) denied Claimant unemployment compensation benefits for the weeks ending
June 11, 2011, through September 17, 2011; (2) established a fault overpayment in
the amount of $3,720, pursuant to Section 804(a) of the Law; and (3) denied
Claimant eligibility for EUC benefits beginning compensable week ending
September 24, 2011, through December 31, 2011, pursuant to Section 4001(b) of

(continued…)
      State agency, except that the State agency may waive such repayment if it
      determines that—
             (1)   The payment of such emergency unemployment
             compensation was without fault on the part of any such individual;
             and
             (2)    Such repayment would be contrary to equity and good
             conscience.


                                             3
the     EUC      Act.      (Id.)         Two       more   determinations,    issued   on
June 16, 2015: (1) established a fraud overpayment in the amount of $3,810,
pursuant to Section 4005 of the EUC Act; and (2) assessed a seventeen-week
penalty period due to the EUC overpayment with an accompanying penalty
of 15% of the EUC overpayment, totaling $571.50. (Id.) Lastly, the sixth and
final determination, issued June 25, 2015, assessed a seventeen-week penalty
period due to the unemployment compensation overpayment received and imposed
a     penalty   of   15%   of      the   unemployment     compensation      overpayment,
totaling $558, pursuant to Sections 801(b) and 801(c) of the Law,5 respectively.
(Id.)
                On June 22, 2015, and June 25, 2015, Claimant filed two separate
appeals—one for the determinations relating to unemployment compensation
benefits and the other for the determinations relating to the EUC benefits received.
(C.R., Item Nos. 6-7.) A Referee consolidated these appeals and conducted a
hearing on July 14, 2015.           (C.R., Item No. 8.)       Claimant challenged the
determinations largely by asserting that she did not recall filing for the benefits at
issue. (Id.) Following the hearing, the Referee issued two decisions and orders.
(C.R., Item No. 11.) In the first decision and order, which related solely to
unemployment compensation benefits, the Referee affirmed the Service Center’s
denial of unemployment compensation benefits and also affirmed the Service
Center’s determination of a fault overpayment in the amount of $3,720, with an
accompanying 15% penalty, totaling $558. (C.R., Item No. 11.) The Referee,



        5
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 871(b) and (c).


                                               4
however, modified the determination by removing the seventeen-week penalty
period. (Id.) In doing so, the Referee issued the following findings of fact:
             1.    The claimant filed an initial claim for
                   Unemployment Compensation benefits with an
                   effective date of March 13, 2011.

             2.    The claimant’s weekly benefit rate is $254 and her
                   partial benefit credit is $102.

             3.    During the below listed weeks the claimant was
                   employed by Philadelphia Corp for the Aging.

             4.    When filing for Unemployment Compensation
                   benefits for compensable weeks ending
                   June 11, 2011 through September 17, 2011 the
                   claimant reported $0 earnings to the UC Service
                   Center.

             5.    The claimant had actual and potential earnings for
                   compensable weeks ending June 11, 2011 through
                   September 11, 2011 in amount[s] which ranged
                   from $658 per week to $658.03 per week.

             6.    The claimant was, or should have been, aware that
                   she was required to report her earnings to the UC
                   Service Center when filing for benefits for the
                   weeks at issue in this appeal.

(Id.)
             In concluding that Claimant was ineligible for unemployment
compensation benefits and that a penalty was proper, the Referee reasoned, in part:
             By failing to report her earnings to the UC Service
             Center the claimant failed to file a valid claim for
             benefits. Accordingly, benefits for compensable weeks
             ending June 11, 2011 through September 17, 2011 are
             disallowed in accordance with Section 401(c) of the Law.
             Because the claimant is ineligible for benefits for the
             weeks at issue in this appeal she has an overpayment in
             the amount of $248 per week for compensable weeks
                                          5
             ending June 11, 2011 through September 17, 2011 for a
             total overpayment in the amount of $3,720. The Referee
             is in agreement with the UC Service Center that the
             claimant’s overpayment be recouped in accordance with
             the provisions of Section 804(a) of the Law.
             In addition, the claimant shall be assessed a 15% penalty
             in the amount of $558 in accordance with Section 801(c).
             However, no penalty weeks shall be assessed and
             Section 801(b) of the Law is inapplicable.

(Id.)
             In the second decision and order, pertaining solely to EUC benefits,
the Referee affirmed the Service Center’s denial of EUC benefits and also affirmed
the Service Center’s determination of a fraud overpayment in the amount
of $3,810. (C.R., Item No. 11.) The Referee, however, modified the determination
by removing the 15% overpayment penalty totaling $571.50 and seventeen-week
penalty period. (Id.) In doing so, the Referee issued the following findings of fact:
             1.    On July 17, 2015 a Referee’s Decision/Order
                   appeal number 15-09-I-1321 was issued which
                   affirmed the UC Service Center determinations by
                   denying benefits to the claimant under
                   Section 401(c) of the Law and assessing the
                   claimant an overpayment and a 15% penalty in
                   accordance with Sections 804(a) and 801(c) of the
                   Law.
             2.    As a result, the claimant has not exhausted all of
                   her rights to regular UC benefits.

(Id.) The Referee reasoned:
             As outlined in the findings of fact of this decision, a
             Referee’s Decision/Order was issued which affirmed UC
             Service Center determination by denying benefits to the
             claimant in accordance with Section 401(c) of the Law
             and assessing the claimant an overpayment and
             a 15% penalty in accordance with Sections 804(a) and
             801(c). Accordingly, the claimant has not exhausted all
             of her rights to regular UC benefits and is ineligible for
                                         6
               EUC benefits for compensable weeks ending
               September 24, 2011 through December 31, 2011 in
               accordance with Section 4001(b) of the EUC Act.
               Because the claimant is ineligible for EUC benefits for
               the weeks at issue in this appeal she has an overpayment
               in the amount of $254 per week for compensable weeks
               ending      September         24,      2011       through
               December 31, 2011 for a total overpayment in the
               amount of $3,810.
               The Referee is in agreement with the UC Service Center
               that the claimant’s overpayment be recouped in
               accordance with the fraud provisions of the EUC Act.
               However, the Referee will not impose penalty weeks or
               a 15% penalty. Accordingly, Sections 4005(a)(1) of the
               EUC Act and Sections 801(b) and 801(c) of the PA UC
               Law are inapplicable.
(Id.)
               Claimant appealed to the Board. The Board modified and affirmed,
adopting the Referee’s findings of fact and conclusions of law and incorporating
them into its decision. (C.R., Item No. 13.) As to the Referee’s decision regarding
unemployment compensation benefits, the Board affirmed the denial of benefits in
addition to affirming the fault overpayment in the amount of $3,720. (Id.) The
Board, however, modified the decision by removing the imposition of
the 15% overpayment penalty totaling $558.6 (Id.) As to the Referee’s decision

        6
         The Board found the 15% penalty pursuant to Section 801(c) of the Law to be
inapplicable. The Board stated as follows:
        “Clearly, an overt misrepresentation made by the claimant that he [sic] was not
        working when he [sic] earned wages is the basis for a fault overpayment.
        However, the additional 15% monetary penalty under Section 801(c) of the Law
        was not in place when these claims were filed. Section 801(c) was added to the
        Law by [the Act of October 23, 2013, P.L. 637], effective October [23], 2013. As
        such, the Board finds the additional 15% penalty inappropriate here.”
(C.R., Item No. 13.)


                                               7
regarding EUC benefits, the Board affirmed without modification. (Id.) The
Board specifically noted that it discredited Claimant’s testimony that she could not
recall filing for benefits, and that there was an “overt misrepresentation” made by
Claimant in regards to her employment status. (Id.) Claimant now petitions this
Court for review.7
              On appeal,8 Claimant argues that the Board’s finding that Claimant
was the one to file these claims is not supported by substantial evidence.9
Claimant also argues that the Board erred as a matter of law in concluding that
Claimant received an overpayment subject to recoupment.
              First, we will address Claimant’s argument that substantial evidence
does not exist to support the Board’s finding that Claimant filed the unemployment
compensation claims. Substantial evidence is defined as relevant evidence upon
which a reasonable mind could base a conclusion.                 Johnson v. Unemployment
Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether
there is substantial evidence to support the Board’s findings, this Court must examine
the testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support a

       7
         This Court granted the Board’s request to consolidate the appeals by Order dated
January 7, 2016.
       8
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       9
          Although Claimant does not specifically challenge any particular findings of fact, this
Court will analyze whether any findings that found Claimant to be the individual to file for
benefits are supported by substantial evidence.


                                               8
finding of fact can only be made upon examination of the record as a whole. Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s
findings of fact are conclusive on appeal only so long as the record taken as a whole
contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359,
365 (Pa. 1984). “The fact that [a party] may have produced witnesses who gave a
different version of the events, or that [the party] might view the testimony
differently than the Board is not grounds for reversal if substantial evidence
supports the Board’s findings.”       Tapco, Inc. v. Unemployment Comp. Bd. of
Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence
exists in the record that could support a contrary conclusion, it does not follow that
the findings of fact are not supported by substantial evidence.             Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             In regards to the claims for unemployment compensation benefits and
EUC benefits, Claimant contends that she has no knowledge of the claims filed on
her behalf, and as such, should not bear the consequences of these filings.
(Petitioner’s Brief at 7.) Claimant supports this position by stating that during the
time these filings occurred, she was not living in the state of Pennsylvania, as she
had to relocate to New Jersey due to familial issues. (Id.) Further, Claimant states
that she does not recall giving any family members permission to file any of these
claims on her behalf. (Id.)
             During the hearing, Claimant testified to having no recollection of
filing the claims for unemployment compensation benefits and EUC benefits.
(C.R., Item No. 10, at 8.) When questioned by the Referee, Claimant continued to
state that she has no recollection of filing for benefits, in addition to stating that no




                                           9
one but her would have filed for claims on her behalf. (Id.) The hearing transcript
provides the following between Claimant and the Referee:
            R:     Okay. Now, according to the documents from the
                   UC Service Center, when you filed for benefits for
                   these weeks, June 11th, 2011 through September 17th,
                   2011, you reported that you had no earnings.
            C:     To be honest, I don’t even remember filing that. I
                   don’t remember from 2011 up until this point.
            R:     Well, do you remember filing for benefits while you
                   were working?
            C:     No, I did [sic] not.
            R:     Okay. Well, who else would have filed [inaudible]?
            C:     I don’t know. I only use to file Worker’s [sic]
                   Compensation and my Unemployment – I’m the
                   only person that would file anything for myself.
            R:     Okay. Then, you filed it. So, why didn’t you report
                   your earnings when you were filing for these
                   benefits?
            C:     I don’t even remember reporting them, sir.
            R:     I don’t remember is not a good answer. We know
                   you did. It’s your Claim. You have a PIN number.
                   You had to have done it, unless you gave somebody
                   your PIN number and they did it for you.
            C:     I don’t know if anybody had my PIN number.
            R:     Did you give you PIN number to someone?
            C:     Not that I can recall.
            R:     All right. Then, you did. Now, I’ll go back
                   to 2011. You’re telling me that you filed for benefits
                   for all these weeks while you were working, and you
                   don’t recall now that you did that?
            C:     I absolutely don’t remember. I’ve been through a lot
                   over these past four or five years, and no, I don’t
                   remember.

(Id.)

                                            10
             Katherine Stabulas, the unemployment compensation representative
responsible for issuing the original notices of determinations, testified:
             R:     When you did this investigation did you find any
                    evidence that it was not Ms. Canty who actually filed
                    for these benefits?
             KS:    No, we would not have evidence . . . we would have
                    no way of knowing if it wasn’t the Claimant who
                    filed. She gets the money that was put into either her
                    own – either her debit card or direct deposit.
             R:     Ok. Well, do you have any evidence that would
                    suggest that in [Claimant’s] defense someone would
                    file for these benefits?
             KS:    No there was no evidence to that at all.

(Id.)
             It is well settled that in unemployment compensation cases, the Board
is the ultimate fact finder and is, therefore, entitled to make its own determinations
as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd.
of Review, 501 A.2d 1383, 1385 (Pa. 1985). In making credibility determinations,
the Board “may accept or reject the testimony of any witness, in whole or in part.”
Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa.
Cmwlth. 1982). The appellate court’s duty is to examine the testimony in the light
most favorable to the party in whose favor the Board has found, giving that party
the benefit of all inferences that can logically and reasonably be drawn from the
testimony. Taylor, 378 A.2d at 831.
             Here, Claimant’s argument essentially asks the Court to overturn the
fact finder’s credibility determination and reweigh the evidence.            The Board
expressly discredited Claimant’s testimony and found “no credible evidence in the
record that someone else filed for benefits for [C]laimant,” when it adopted and
incorporated the Referee’s findings and conclusions. (C.R., Item No. 13.) We
                                          11
must, therefore, decline Claimant’s invitation to revisit the Board’s credibility
determinations and reweigh the evidence on appeal.        Thus, we conclude that
substantial evidence exists to support the Board’s finding that Claimant filed for
benefits.
            Second, we address Claimant’s argument that the Board erred in
concluding that Claimant received an overpayment subject to recoupment.
Claimant’s entire argument on this issue is predicated on her version of the facts,
i.e., that she did not file for benefits.    The Board, however, did not accept
Claimant’s version. Instead, it found that she filed for and received benefits to
which she was not entitled. As such, we conclude that the Board did not err in
concluding that Claimant received an overpayment subject to recoupment.
            Accordingly, we affirm the orders of the Board.




                               P. KEVIN BROBSON, Judge




                                        12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adrian Lee Canty,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 2310 C.D. 2015
                                    :   No. 2487 C.D. 2015
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 28th day of July, 2016, the orders of the
Unemployment Compensation Board of Review are hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
