             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Job A. Williams,                               :
                             Petitioner        :
                                               :
                      v.                       :    No. 626 C.D. 2016
                                               :    Submitted: March 10, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: June 27, 2017


       Job A. Williams (Claimant) petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board), which affirmed a
Referee’s decision finding Claimant liable for a fault overpayment pursuant to
Section 804(a) of the UC Law (Law)1 because Claimant provided misleading
information about his separation from his employment in order to obtain benefits.2
On appeal, Claimant argues the Board erred in concluding that his statements were

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 874(a).
       2
         The Referee found Claimant ineligible for UC benefits pursuant to Section 402(b) of the
Law, 43 P.S. § 802(b), because he voluntarily quit his employment without cause of a
necessitous and compelling nature. Claimant did not challenge this determination.
misrepresentations meant to mislead the UC Authorities and his receipt of benefits
for the weeks involved was the result of those statements.          Claimant also
challenges finding of fact 25, asserting it is a conclusion of law without factual
foundation. For the reasons that follow, we affirm.
      The underlying facts found by the Board are not disputed and are
summarized as follows. Claimant worked as a cook for River House Bar & Grill
(Employer) from July 10, 2015, until September 30, 2015. Initially, Claimant
averaged 82 hours biweekly, but, beginning in early September, he was sent home
early due to lack of business, which reduced his average hours to 56 hours
biweekly. On September 26, 2015, a day he was sent home early, Employer’s
President asked Claimant how he felt about leaving early; Claimant responded it
felt like he was losing money. President said he could not afford to pay people to
stand around and do nothing. Claimant asked “if he was going to be laid off,” but
President did not respond and walked away. (Referee Decision, Findings of Fact
(FOF) ¶ 8.) Claimant worked September 27 through 30, 2015, but was no call/no
show on October 3, 2015, which Employer considered a voluntary quit. Claimant
called Employer prior to its opening on October 4 and 5, 2015, to discuss his hours
with his supervisors, but no one answered. Claimant made no attempt to contact
his supervisors directly or go to the restaurant to discuss the issue. Claimant
returned his uniforms and picked up his last paycheck on October 9, 2015, but did
not discuss his lack of hours. At no point was Claimant advised he was laid off or
separated from his position due to lack of work.




                                         2
        On October 5, 2015, Claimant filed an additional claim for benefits based on
his separation from Employer,3 indicating his separation was due to a lack of work,
and he began receiving benefits. Employer submitted its response to Claimant’s
claim on October 23, 2015, stating Claimant had voluntarily quit on October 3,
2015.       Claimant submitted answers on various questionnaires and in an oral
interview, explaining he was “claiming lack of hours” because Employer sent him
home early on multiple occasions and did not respond to his attempts to resolve the
issue. (Record of Oral Interview, R. Item No. 3.) Based on this information, the
Local UC Service Center (Local Service Center) issued Notices of Determination
finding Claimant ineligible for benefits pursuant to Section 402(b) and that he had
a fault overpayment pursuant to Section 804(a).4 Claimant appealed. A hearing
was held before the Referee, at which Claimant, represented by counsel, testified
and Employer’s Office Manager testified.
        The Referee found Claimant received a total of $1,603 in benefits for the
claim weeks ending in October 3, 2015, through November 14, 2015. The Referee
also found Claimant “omitted a material fact or deliberately withheld information
from the UC Service Center in order to obtain” those benefits. (FOF ¶ 25.) The
Referee explained that Claimant reported his separation as based on a lack of work,
although Claimant admitted “he was not told that he was laid off due to a lack of
work.” (Referee Decision at 3.) The Referee concluded, therefore, Claimant
“provided misleading information in order to obtain . . . benefits to which he was


        3
          Claimant had an approved claim for benefits, effective July 5, 2015, from his separation
from a different employer, which is not at issue.
        4
          The Local Service Center concluded Claimant had a fault overpayment because he
failed to report his earnings from Employer while receiving benefits for his prior separation of
employment.



                                                3
not entitled.” (Id.) Due to this misleading information, the Referee determined the
overpayment was the fault of Claimant and was recoupable under Section 804(a).
Claimant appealed to the Board. Upon review, the Board found the Referee’s
determination proper under the Law, adopted the findings of fact and conclusions
of law as its own, and affirmed. Claimant now petitions this Court for review. 5
       On appeal, Claimant first argues it is unclear that the reason he gave for his
separation, lack of work, factored into his eligibility because there was no written
decision on his eligibility for the October 5, 2015 claim – he just began receiving
benefits.6 He asserts the alleged misrepresentations or misleading information
were not communicated to the Local Service Center until after he had already
begun receiving benefits. This argument is unpersuasive.
       During his oral interview, Claimant was asked about reopening his “claim
for Lack of [W]ork on 10/05/15,” and Claimant did not dispute this was the reason
he used when filing the October 5, 2015 claim. (Record of Oral Interview, R. Item
No. 3.) Because lack of work is a reason for being separated from employment
that would not render a claimant ineligible, the payment of benefits began without


       5
           “The Court’s review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, whether a practice or procedure of the Board
was not followed or whether the findings of fact are supported by substantial evidence in the
record.” W. and S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331, 334 n.2
(Pa. Cmwlth. 2006).
        6
          Claimant also mentions the change in rationales for finding the fault overpayment given
in the Notice of Determination and the Referee’s Decision. However, Claimant did not
challenge this in his appeal to the Board and, therefore, to the extent he may be arguing this was
error, the issue is waived. Tri-State Scientific v. Unemployment Comp. Bd. of Review, 589 A.2d
305, 307 (Pa. Cmwlth. 1991). The Board appears to attempt to revive the first reason as an
additional basis for finding a fault overpayment. (Board’s Br. at 7-10, 15.) This was not a
reason the Board gave for the fault overpayment and, therefore, cannot be asserted as a new basis
before this Court.



                                                4
notice to Claimant pursuant to Section 501(c)(1) and (2) of the Law, 43 P.S. §
821(c)(1), (2).7 It was not until Employer responded to Claimant’s application on
October 23, 2015, that questions regarding Claimant’s eligibility arose. At that
time, the Local Service Center began its investigation and Claimant made
additional representations about the reason for his separation being lack of work.
Accordingly, Claimant did receive benefits as a result of his initial assertion, on
October 5, 2015, that his separation was due to lack of work.
       Claimant also challenges finding of fact 25, which states “Claimant omitted
a material fact or deliberately withheld information from the UC Service Center in
order to obtain [UC] benefits.” (FOF ¶ 25.) Claimant asserts this is really a
conclusion of law without factual foundation because it does not say which
material fact was omitted or what information Claimant inappropriately withheld.
A reading of the entire decision, including finding of fact 22 (finding Claimant was
not told he was separated or laid off from work due to lack of work) and the
rationale for finding a fault overpayment, provides ample factual foundation for
what material fact Claimant omitted or withheld from the Local Service Center.
       Claimant additionally asserts he did not deliberately misrepresent the reason
for his separation or intend to mislead the UC authorities, but had difficulty
discerning the questions posed and believed he could claim lack of work because
his hours had been reduced. Claimant argues the Board did not make the requisite
finding regarding his mental state, but simply adopted the reasoning that he misled
the UC authorities when he stated his separation was due to lack of work because

       7
         Section 501(c)(1) and (2) provide “[t]he department shall promptly examine each claim
for waiting week credit and each claim for compensation and on the basis of the facts found by it
shall determine whether or not the claim is valid” and “[n]otice of such determination need not
be given to the claimant if the claim is determined valid.” 43 P.S. § 821(c)(1), (2).



                                               5
he was not told he was laid off, a very narrow interpretation of that phrase.
Claimant contends similar circumstances have been found not to support a fault
overpayment, Cruz v. Unemployment Compensation Board of Review, 531 A.2d
1178, (Pa. Cmwlth. 1987), and the same result should be reached here.
      The Board acknowledges that “Claimant’s state of mind is important to
establish a fault overpayment,” (Board’s Br. at 7 citing Fugh v. Unemployment
Compensation Board of Review, 153 A.3d 1169 (Pa. 2017)), and argues his intent
can be inferred from circumstantial evidence surrounding his separation and
application for benefits. The Board asserts Fugh and Cruz are distinguishable
because, unlike in those cases, it did not credit Claimant’s testimony about his
confusion over the phrase lack of work, but found he deliberately withheld
information from and provided misleading information to the Local Service Center
to obtain benefits. Additionally, citing certain notations in Claimant’s claim record
and the UC Handbook purportedly mailed to Claimant on July 6, 2015, which is
not a part of the certified record but of which it asks this Court to take judicial
notice, the Board argues Claimant’s intent to mislead and misinform the Local
Service Center is apparent.
      Section 804(a) states, in relevant part, “[a]ny 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 . . . a sum equal to the amount so received by him.”
43 P.S. § 874(a) (emphasis added). Fault, within the meaning of Section 804(a), is
“more than a voluntary act.” Daniels v. Unemployment Comp. Bd. of Review, 309
A.2d 738, 741 (Pa. Cmwlth. 1973). It has been defined as “‘an act to which blame,
censure, impropriety, shortcoming or culpability attaches.’” Cruz, 531 A.2d at
1180 (quoting Smith v. Unemployment Comp. Bd. of Review, 500 A.2d 186, 189



                                          6
(Pa. Cmwlth. 1985)). Fault includes “blameworthy conduct beyond the strictures
of ‘fraud’” and includes “knowing recklessness or gross negligence.” Fugh, 153
A.3d at 1176. “To find fault, the Board must make some findings with regard to
[the c]laimant’s state of mind.”         Greenawalt v. Unemployment Comp. Bd. of
Review, 543 A.2d 209, 211 (Pa. Cmwlth. 1988). Intent may be ascertained through
circumstantial evidence. Cochran v. Commonwealth, 450 A.2d 756, 759 (Pa.
Cmwlth. 1982).
       Initially, we address the Board’s request that we take judicial notice,
pursuant to Rule 201(b)(2) of the Pennsylvania Rules of Evidence, Pa. R.E.
201(b)(2),8 of the UC Handbook, which it asserts was mailed to Claimant on July
6, 2015. Citing In re Schulz’ Estate, 139 A.2d 560, 563 (Pa. 1958), the Board
argues we may take judicial notice of the UC Handbook even though it was not a
part of the record developed before the Referee.
       “Judicial notice itself does not necessarily establish a fact. . . . Judicial notice
of a fact, when correctly taken, constitutes evidence, which like any evidence, may
be rebutted.” HYK Constr. Co., Inc. v. Smithfield Twp., 8 A.3d 1009, 1017 (Pa.
Cmwlth. 2010) (citing In re D.S., 622 A.2d 954, 957-58 (Pa. Super. 1993)). “If the
evidence derived from judicial notice remains unrebutted, it may support a finding
of fact.” D.S., 622 A.2d at 958. However, courts should not “tak[e] judicial notice
of something that was neither noticed below nor supported by evidence.” Id. at
959 (citing Commonwealth v. Kittleberger, 616 A.2d 1 (Pa. Super. 1992)). Here,
because the UC Handbook was not presented as evidence and the Referee was not


       8
         Rule 201(b)(2) permits a court to “judicially notice a fact that is not subject to
reasonable dispute because it: . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Pa. R.E. 201(b)(2).



                                               7
requested to take notice thereof, Claimant had no opportunity to rebut that
evidence or the contention that he received a copy. Unlike the UC Handbook here,
in In re Schulz’ Estate the appellate court took judicial notice of judicial records in
other judicial proceedings. We will not take judicial notice of the UC Handbook
but will rely only on what is included in the record certified to us on appeal. See
HYK Constr. Co., Inc., 8 A.3d at 1017 (“An appellate court may consider only the
facts which have been duly certified in the record on appeal.”).
      We now address Claimant’s contention that it was error for the Board to
conclude that he deliberately withheld information and provided misleading
information because the record demonstrates that, like the claimant in Cruz, he was
confused by the phrase “lack of work.” In both Fugh, which was decided after
Claimant filed his appellate brief, and Cruz, the claimants applied for benefits
citing lack of work as the reason for their separations, although both testified they
had resigned from their positions for other reasons.          The claimant in Fugh
explained she selected lack of work because she misunderstood what it “really
meant” and believed it meant the employer “had cut [her] hours.” Fugh, 153 A.3d
at 1171-72. The Board credited the claimant’s testimony that she made a mistake
and found there was “no evidence [she] intentionally failed to disclose information,
or that she made false statements.” Id. The claimant in Cruz stated she “believed
she could terminate her employment when she did because it was a ‘slow’
season . . . . [and] concluded, therefore, that her separation was due to lack of
work.” Cruz, 531 A.2d at 1180. Reviewing the record, this Court held there was
no culpable conduct on the claimant’s part and would not fault the claimant
because of her confusion, “which was possibly due to a communication problem.”
Id.



                                          8
      Claimant, here, testified that he chose lack of work because Employer had
reduced his hours, Employer had not replied to his attempt to discuss the issue, and
the other reasons for separation available, “quit” or “leave of absence,” were not
applicable. (Hr’g Tr. at 12, R. Item 9; Record of Oral Interview, R. Item No. 3.)
His answers to the questions on various documents also suggest some confusion.
(See Claimant Questionnaire (stating “No” he did not “Quit” or take a “Leave of
Absence” but also that “the reason [he] quit [his] job or took a leave of absence”
was “Lack of Work”), R. Item 3.) He explained he did not intend to mislead or
withhold information and responded truthfully and to the best of his ability. (Hr’g
Tr. at 12-13.) However, Claimant also testified he asked Employer about being
laid off after being sent home early, he admitted he was never told he was laid off
or separated due to lack of work, he acknowledged that, other than twice calling
before the restaurant opened, he did not attempt to discuss the issue with his
supervisors responsible for his scheduling, and he stated there was no explanation
for his being no call/no show on October 3, 2015, two days before he filed the
claim at issue here. (Id. at 8, 14-16.)
      Unlike in Fugh or Cruz, there is no finding that Claimant was confused or
mistaken, that he acted without culpability, or that there was not any evidence that
he intentionally failed to provide information. Rather, the Board determined that
Claimant “omitted a material fact or deliberately withheld information from the
[Local] Service Center” and “provided misleading information in order to obtain
UC benefits to which he was not entitled.” (FOF ¶ 25; Referee Decision at 3
(emphasis added).) In doing so, the Board, acting in its role as fact finder, did not
credit Claimant’s testimony that he did not intend to mislead or withhold
information or the record evidence suggesting he may have been confused. It is



                                          9
well-settled the Board is responsible for making credibility determinations and “is
free to reject the testimony of any witness, even uncontradicted testimony.” Russo
v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010).
Thus, Fugh and Cruz are distinguishable and do not require a different result.
      The Board’s finding that Claimant’s conduct was deliberate satisfied its
obligation to make a finding about Claimant’s state of mind. Greenawalt, 543
A.2d at 211. That finding of intent is supported by circumstantial evidence in the
record. “[W]here a fair reading of the record establishes that an [UC] claimant
withheld information” or provided misleading information “that was material to his
eligibility the record clearly establishes fault of claimant warranting recoupment of
benefits paid to him under Section [804](a) of the Law.” Ryan v. Unemployment
Comp. Bd. of Review, 547 A.2d 1283, 1286 (Pa. Cmwlth. 1988).
      Here, a fair reading of the record, and all of the reasonable inferences
deducible therefrom, in the light most favorable to the prevailing party, United
States Banknote Co. v. Unemployment Compensation Board of Review, 575 A.2d
673, 674 (Pa. Cmwlth. 1990), establishes Claimant’s intent to deliberately
withhold information and provide misleading information to the UC Authorities in
order to obtain benefits. In claiming his separation was for a lack of work, while
knowing: he was never told he was laid off or separated from his employment for
that reason; he made only minimal efforts to actually speak with his supervisors
about the issue before filing his claim for benefits; and he had been no call/no
show on October 3, 2015, without explanation, Claimant withheld information that
clearly was material to a determination on his eligibility. Moreover, although his
hours had been reduced, Claimant knew Employer continued to schedule him to
work, and there had been no discussions of his being laid off due to a lack of work



                                         10
other than some questioning by Claimant. Notwithstanding this, Claimant asserted
his separation was due to a lack of work, which resulted in the Local Service
Center paying him benefits until the proper determination of his eligibility based
on all the information related to his separation was issued. Fault under Section
804(a) requires some “blameworthy conduct” upon which culpability attaches.
Fugh, 153 A.3d at 1176; Cruz, 531 A.2d at 1180. Given Claimant’s knowledge of
the full circumstances surrounding his separation from his employment, Claimant’s
representations that it was due to a lack of work which Employer would not
resolve, constitutes blameworthy conduct. Therefore, there was no error in the
Board’s conclusions that Claimant received benefits to which he was not entitled
due to his own fault and, consequently, that those benefits are recoupable pursuant
to Section 804(a).
      Accordingly, the Board’s Order is affirmed.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Job A. Williams,                        :
                        Petitioner      :
                                        :
                   v.                   :   No. 626 C.D. 2016
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


      NOW, June 27, 2017, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
