             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cathy Martin,                                   :
                               Petitioner       :
                                                :
                v.                              :   No. 1354 C.D. 2018
                                                :   Submitted: March 29, 2019
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :

BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: July 25, 2019

                Cathy Martin (Claimant), representing herself, petitions for review of
an order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s decision finding her ineligible for unemployment compensation
(UC) benefits under Section 402(b) of the Unemployment Compensation Law1 (UC
Law) based on her voluntary resignation from employment with Evoqua Water
Technologies (Employer) without a necessitous and compelling reason. On appeal,2
Claimant contends she had a necessitous and compelling reason to quit her job, and
she challenges the nature of her separation from Employer. She also argues the
referee and the Board lacked jurisdiction to consider Employer’s purported appeal


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) of the UC Law provides “[a] employe shall be ineligible for compensation
for any week . . . [i]n which [her] unemployment is due to voluntarily leaving work without cause
of a necessitous and compelling nature . . . .” Id.

       2
           We have reordered Claimant’s issues on appeal.
of the UC Service Center’s notice of determination finding Claimant not ineligible
for benefits under Section 402(b) of the UC Law, because Employer was only
requesting a relief from charges and not filing an appeal. Upon review, we vacate
the Board’s order.


               Because the issue of whether the referee, and thus the Board, had
jurisdiction to consider Employer’s purported appeal of the UC Service Center’s
eligibility determination is dispositive of this appeal, a detailed discussion of the
facts pertaining to Claimant’s voluntary resignation from employment is
unnecessary.


               Briefly, by way of background, Claimant worked for Employer as a
full-time Payroll Manager from November 7, 2016, to January 12, 2018,3 although
Employer initially hired Claimant to work as a Human Resources (HR) Generalist.
According to Claimant, she resigned her employment in late November 2017
because Employer substantially and unilaterally changed the terms and conditions
of her employment when it hired her as an HR Generalist and later changed her
duties and job title to Payroll Manager, assigned her duties at Employer’s HR Shared
Services call center, and moved its office location from Warrendale, Pennsylvania,
to downtown Pittsburgh, Pennsylvania.


               Claimant subsequently applied for UC benefits. On February 23, 2018,
a UC Service Center issued a notice of determination, finding Claimant not ineligible
for benefits under Section 402(b) of the UC Law on the ground she had a necessitous

       3
         Claimant entered into an agreement with Employer to continue working until January 12,
2018, in exchange for a severance package.


                                              2
and compelling reason for voluntarily quitting her job because Employer unilaterally
changed the terms and conditions of her employment that were established at the
time of hire. The notice of determination provided the last day to appeal was March
12, 2018, and included detailed appeal instructions. Certified Record (C.R.), Item
No. 7. The appeal instructions provided that an appeal must be filed with the
Department of Labor and Industry (Department) within 15 days of the mailing date
of the determination and that the determination becomes final unless a timely appeal
is filed. Id. at 1. The instructions further noted that any appeal filed by mail should
be sent to the Duquesne UC Service Center at 14 North Linden Street, Duquesne,
PA 15110-1067. Id. at 2. Finally, the instructions advised, in pertinent part, the
following:

       CONTRIBUTING BASE YEAR EMPLOYER: This is not a
       determination on relief from charges. However, this determination may
       affect a request for relief from charges.

        An appeal to a Claimant’s eligibility and a request for relief from
         charges MUST BE FILED SEPARATELY.

        For procedures and time limits for requesting relief from charges, see
         Form UC-44FR previously sent to you with the Claimant’s Notice of
         Financial Determination[4] or contact the Employers’ Charge
         Section . . . .

       A REQUEST FOR RELIEF FROM CHARGES, WHETHER
       GRANTED OR NOT, WILL HAVE NO EFFECT ON THIS
       DETERMINATION.


       4
          Neither Form UC-44FR nor Claimant’s Notice of Financial Determination, Form UC-
44F, are included in the certified record. However, the claim record indicates that the Department
mailed Form UC-44F to Claimant on February 12, 2018, and that Claimant received benefits after
the UC Service Center issued its eligibility determination regarding Claimant’s separation from
employment. Certified Record (C.R.), Item No. 1, at 1-2. Because the parties do not refer to or
rely on these forms, their absence from the record does not hinder our review of this matter.


                                                3
Id. at 3 (emphasis in original).
               Employer, through its representative Equifax, mailed a letter on
February 27, 2018, within the 15-day appeal period, to the Employer Charge Unit at
P.O. Box 67504, Harrisburg, PA 17106-7504, stating as follows:

       This is in reference to form UC[-]44,[5] Notice of Determination, dated
       February 23, 2018[,] which allows benefits to the above individual. We
       respectfully request a redetermination based on the following
       information.

       We respectfully request a relief of charges[6] as [C]laimant
       voluntarily quit for personal reasons.

       Continuing work was available. Our records indicate [C]laimant quit
       without good cause attributable to [E]mployer. [C]laimant’s reason
       was personal in nature and not within [E]mployer’s ability to control.
       Therefore[,] [E]mployer’s account should not be charged. Please note,
       this is not a request for an appeal; it is a request for a noncharge.

C.R., Item No. 8 (bold and underline emphasis added). The date stamp on the letter
indicates “Employer Services” received the letter on March 1, 2018, and then,
apparently, transferred the letter to the Duquesne UC Service Center, which received
the letter on April 6, 2018.7 Also included with the letter in the certified record is a
Petition for Appeal form, which states “See Attached” as the reason for the appeal


       5
        A notice of determination, Form UC-44, addresses a claimant’s eligibility for benefits
based on her separation from employment. See Dep’t of Cmty. & Econ. Dev. v. Unemployment
Comp. Bd. of Review, 847 A.2d 229, 231 n.5 (Pa. Cmwlth. 2004).

       6
         “[A]n [e]mployer seeking relief from charges is requesting a tax exemption. Thus, strict
construction is required.” First Nat’l Bank of Bath v. Unemployment Comp. Bd. of Review, 619
A.2d 801, 803 (Pa. Cmwlth. 1992).

       7
         A photocopy of the envelope containing the letter also bears a date stamp with this date.
C.R., Item No. 8.


                                                4
and bears a date stamp indicating the Pittsburgh Referee Office (referee office)
received the Petition for Appeal form on April 13, 2018. The referee office issued
a notice of hearing the same day indicating the primary issue to be considered at the
hearing was whether Claimant was ineligible for benefits under Section 402(b) of
the UC Law. C.R., Item No. 10.


               Claimant appeared at the referee hearing, with counsel, and was the
only witness to testify. Despite being notified of the date, time, and place of the
hearing, Employer and its representative Equifax did not appear. At the start of the
hearing, Claimant’s counsel objected to all correspondence from Equifax on the
basis of hearsay, including Referee Exhibit C (the February 27, 2018 Equifax letter),
which the referee sustained, but only to the extent the letter contained hearsay. In
doing so, the referee reasoned Employer was not there to provide testimony and
evidence on the issue of the reason for Claimant’s separation. However, the referee
admitted the letter to demonstrate Equifax filed a timely8 and valid appeal on behalf
of Employer. Notes of Testimony (N.T.) at 4. Claimant then testified regarding her
duties with Employer and the changes that occurred over the course of her
employment up until her resignation.


               Following the hearing, the referee issued a decision reversing the UC
Service Center’s determination and denying benefits under Section 402(b) of the UC


       8
          Regarding timeliness of the February 27, 2018 Equifax letter, i.e., Employer’s “appeal,”
the referee determined that, given the absence of an official U.S. postmark, the postage meter mark
bearing the date February 27, 2018, was sufficient to establish the timeliness of the appeal. Notes
of Testimony at 2; see 34 Pa. Code § 101.82(b)(1)(ii) (providing that where no official U.S. Postal
Service postmark or other proof of mailing, the date of the postage meter mark on the envelope
will serve as filing date). Claimant does not challenge this on appeal.


                                                5
Law, concluding Claimant failed to sustain her burden under that section. Notably,
the referee did not discuss the validity of Employer’s appeal in his decision.


              Claimant appealed to the Board and requested permission to file a brief,
which the Board granted. Claimant’s counsel filed the brief largely reiterating
Claimant’s arguments made throughout these proceedings, namely that she had a
necessitous and compelling reason to quit her job because Employer substantially
and unilaterally changed the terms and conditions of her employment. The Board
ultimately affirmed the referee’s decision denying benefits but made its own findings
of fact and conclusions of law. The Board concluded Claimant failed to establish
she had a necessitous and compelling reason to quit her job. Like the referee, the
Board also did not discuss the validity of Employer’s appeal in its decision.
Claimant, now representing herself, appeals to this Court.


              On appeal,9 Claimant asserts that the referee and the Board lacked
jurisdiction to consider Employer’s purported appeal of the UC Service Center’s
eligibility determination, because Employer was only requesting a relief from
charges, not filing an appeal. Specifically, she argues the UC Service Center, the
referee, and the Board erred by accepting and considering the February 27, 2018
Equifax letter as Employer’s “appeal” because Equifax sent it to the Employer
Charge Unit, which is not the office to which appeals are sent, and the letter is not
the correct document to appeal an eligibility determination. She claims that after the


       9
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014).



                                              6
Employer Charge Unit received the letter on March 1, 2018, an employee of that
office filed an appeal on behalf of Employer, and a hearing ensued before a referee
despite that the letter explicitly stated Employer was not appealing the UC Service
Center’s determination. She points out that neither Employer nor Equifax appeared
at the referee hearing because Employer was only requesting a relief from charges.
In addition, she observes Equifax likely knew that a request for relief from charges
is different from an appeal of an eligibility determination given the explicit language
in the letter that “this is not a request for an appeal; it is a request for a noncharge.”
Claimant’s Br. at 20-22; C.R., Item No. 8. The Board counters, in a footnote, that
Claimant waived the issue based on her failure to raise it in her appeal to the Board.
We disagree.


             Although the Board correctly observes that Claimant did not raise the
issue in either her petition for appeal or her brief to the Board, see C.R., Item Nos.
14, 16, it is well-settled that jurisdictional matters may be raised sua sponte by this
Court even if, as here, a party fails to raise the issue below.              Darroch v.
Unemployment Comp. Bd. of Review, 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993).


             Section 501(e) of the UC Law, 43 P.S. §821(e), provides, in relevant
part, that a party must appeal a notice of determination within 15 calendar days of
the mailing date of the determination. The statutory time limit for filing an appeal
of a determination is mandatory; if no appeal is filed within 15 days of the
determination’s mailing date, the determination becomes final, and the referee and
the Board lose jurisdiction to consider the matter further. Pa. Tpk. Comm’n v.
Unemployment Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009)



                                            7
(citing Vereb v. Unemployment Comp. Bd. of Review, 676 A.2d 1290 (Pa. Cmwlth.
1996)). It follows that where the referee and the Board do not have the requisite
jurisdiction to consider the merits of a Department determination, this Court is also
divested of jurisdiction to consider the merits. Darroch, 627 A.2d at 1237 n.6.


               Accordingly, because the jurisdictional issue Claimant raises in both
her petition for review and her brief10 to this Court implicates our jurisdiction to
consider the merits of this appeal, we decline to find waiver. Therefore, we will
address the issue.


               As noted above, Claimant argues the referee and the Board lacked
jurisdiction to consider Employer’s purported appeal of the UC Service Center’s
determination finding Claimant not ineligible for benefits under Section 402(b) of
the UC Law, because Employer was only requesting a relief from charges, not filing
an appeal. We agree with Claimant.




       10
           Claimant attached extra-record evidence to her pro se communication filed with this
Court, indicating her intent to appeal the Board’s decision and order. The Board filed a motion to
strike the extra-record evidence, which this Court granted on January 9, 2019. Thereafter, on
March 29, 2019, this Court granted in part Claimant’s motion to supplement the record and
amended the January 9, 2019 order to clarify that one document appended to the pro se filing is
not stricken in its entirety, as that document appears in the certified record. The March order also
confirmed the remainder of the January order and further directed the Chief Clerk to remove the
appendices attached to Claimant’s brief because they are also not part of the certified record.
        Claimant’s brief contains numerous references to the appendices stricken from her brief,
which we have not considered for purposes of this appeal. See Pa. Tpk. Comm’n v.
Unemployment Comp. Bd. of Review, 991 A.2d 971 (Pa. Cmwlth. 2009) (this Court may not
consider evidence that is not part of the certified record on appeal).



                                                 8
               This Court has repeatedly held that “the filing of an appeal from an
eligibility determination is separate and distinct from the filing of a request for relief
from charges.” See Ruffner v. Unemployment Comp. Bd. of Review, 172 A.3d 91
(Pa. Cmwlth. 2017) (quoting First Nat’l Bank of Bath v. Unemployment Comp. Bd.
of Review, 619 A.2d 801 (Pa. Cmwlth. 1992)); see also Myers v. Unemployment
Comp. Bd. of Review (Pa. Cmwlth., Nos. 1856 & 1857 C.D. 2012, filed June 6,
2013), 2013 WL 3156565 (unreported).11 Stated otherwise, a request for relief from
charges will not serve as an appeal from an eligibility determination. Myers, slip
op. at 2, 2013 WL 3156565, at *2.


               Here, the UC Service Center determined Claimant was not ineligible
for UC benefits under Section 402(b) of the UC Law on the basis she had a
necessitous and compelling reason to resign her employment.                       The notice of
determination indicated that the final day to timely appeal that determination was
March 12, 2018, and that the determination would become final absent the filing of
an appeal by that date. C.R., Item No. 7. Aside from the Petition for Appeal form,
which merely indicates “See Attached” as the reason for Employer’s “appeal,” the
certified record lacks any other indication that Employer attempted to appeal the UC
Service Center’s eligibility determination finding Claimant not ineligible for UC
benefits.    Rather, the record reveals that Employer, through its representative
Equifax, initiated this matter by mailing a letter to the Employer Charge Unit within
the 15-day appeal period, which explicitly stated, “[w]e respectfully request a relief
of charges” and “this is not a request for an appeal; it is a request for a noncharge.”
C.R., Item No. 8 (bold and underline emphasis added). Despite that express

       11
         Myers is cited for its persuasive value pursuant to Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code §69.414(a).


                                                 9
language, the Employer Charge Unit apparently assumed the letter was an appeal
and transferred the letter to the UC Service Center, which then transferred the letter
to the referee office, and a hearing ensued before the referee on eligibility. In
reversing the UC Service Center’s determination and concluding that Claimant was
ineligible for benefits under Section 402(b), the referee and the Board also treated
Employer’s explicit request for relief from charges as an appeal from the UC Service
Center’s eligibility determination. The referee and the Board erred in doing so
because Employer was not appealing that determination.


               In short, because Employer expressly did not appeal the UC Service
Center’s determination finding Claimant not ineligible for benefits, that
determination became final and binding on the parties and, consequently, deprived
the referee and the Board of jurisdiction to issue the subsequent decisions reversing
the UC Service Center’s determination and finding Claimant to be ineligible for
benefits. See Section 501(e) of the UC Law, 43 P.S. §821(e); see also Section
302.1(e)(1) of the UC Law,12 43 P.S. §782.1(e)(1) (pertaining to relief from charges
and providing that where a party’s eligibility is finally determined under Section
501(e), such determination shall not be subject to collateral attack in proceedings
under Section 302.1). We therefore hold that the Board erred in concluding that
Claimant was ineligible for benefits under Section 402(b) of the UC Law.




      12
           Section 302.1 of the UC Law was added by the Act of June 17, 2011, P.L. 16.




                                               10
               Accordingly, the Board’s order denying benefits must be vacated.13



                                             ROBERT SIMPSON, Judge




       13
          Because the referee and the Board lacked jurisdiction to consider the merits of the UC
Service Center’s determination, we also lack jurisdiction to review the merits of this matter. Pa.
Tpk. Comm’n. Therefore, we need not address the other substantive issues raised by Claimant in
this appeal.


                                               11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cathy Martin,                         :
                       Petitioner     :
                                      :
           v.                         :   No. 1354 C.D. 2018
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER

           AND NOW, this 25th day of July 2019, the order of the Unemployment
Compensation Board of Review is VACATED.




                                     ROBERT SIMPSON, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cathy Martin,                              :
                           Petitioner      :
                                           :
                    v.                     :   No. 1354 C.D. 2018
                                           :   Submitted: March 29, 2019
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE COHN JUBELIRER                           FILED: July 25, 2019



      Respectfully, I disagree with the Majority that the Referee and the
Unemployment Compensation Board of Review (Board) lacked jurisdiction to
consider Cathy Martin’s (Claimant) eligibility for benefits under the Unemployment
Compensation (UC) Law1 (Law) based on Evoqua Water Technologies’ (Employer)
apparent choice to characterize its challenge to Claimant’s eligibility for benefits as
a request for relief from charges, rather than an appeal. Here, Employer filed its
timely challenge to the Board’s Notice of Determination of eligibility, not to the
Notice of Financial Determination. Moreover, a party is not permitted to limit the
broad scope of the UC authorities’ review by characterizing a filing in a particular


      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 751-918.10.
way, such as a request for relief from charges rather than an appeal, while
simultaneously asserting grounds for appeal. Accordingly, I would not vacate the
Board’s Order finding Claimant ineligible under Section 402(b) of the Law, 43 P.S.
§ 802(b).
      Claimant, who had voluntarily resigned from her position as a full-time
Payroll Manager in January 2018, filed for UC benefits. On February 23, 2018, a
UC Service Center found Claimant not ineligible for UC benefits because she had
cause of a necessitous and compelling nature for voluntarily resigning due to a
unilateral change to her terms and conditions of employment.              (Notice of
Determination (Notice), Record Item (R. Item) 7.) In doing so, the UC Service
Center rejected Employer’s position that Claimant voluntarily quit for personal
reasons. (Employer Letter to UC Service Center, R. Item 5.)
      The Notice reflected that the last day to appeal was March 12, 2018, and
included directions on how to file an appeal. It further stated that if a party
“disagree[d] with this determination and wish[ed] to file an appeal, [the] appeal must
be filed on or before the last day to appeal . . . .” (Notice at 1.) Any appeal could
be filed online or be sent “to the department by mail,” and had to include the name,
address, social security number of the claimant (if known), and “the date of the
determination being appealed, the reason for the appeal[,] and the name and
address of the individual filing the appeal.” (Id. at 3 (emphasis added).) The Notice
further advised the “Contributing Base Year Employer” that “[t]his is not a
determination on relief from charges” but that “this determination [of eligibility]
may affect a request for relief from charges.” (Id. (emphasis added).) It further
indicated that “[a]n appeal to a Claimant’s eligibility and a request for relief from
charges MUST BE FILED SEPARATELY” and that “A REQUEST FOR RELIEF



                                       RCJ-2
FROM CHARGES, WHETHER GRANTED OR NOT, WILL HAVE NO
EFFECT ON THIS DETERMINATION.” (Id. (emphasis in original).) The
Notice informed the “CONTRIBUTING BASE YEAR EMPLOYER” that the
“procedures and time limits for requesting relief from charges” were set forth in the
UC-44FR form that had been “previously sent to [the employer] with the
Claimant’s Notice of Financial Determination . . . .” (Id. (emphasis added).)
      On February 27, 2018, Employer, via its representative Equifax, sent a letter
to the Employer Charge Unit (Letter) stating the Letter was “in reference to form
UC 44, Notice of Determination, dated February 23, 2018[,] which allows
benefits to the above individual.” (Letter, R. Item 8 (emphasis added).) Employer
“respectfully request[ed] a redetermination based on the following
information” and “respectfully request[ed] a relief of charges as the [C]laimant
voluntarily quit for personal reasons” because “[c]ontinuing work was available,”
“[C]laimant quit without good cause attributable to the [E]mployer,” and
“[C]laimant’s reason was personal in nature and not within the [E]mployer’s ability
to control.” (Id. (emphasis added).) Notwithstanding the Letter’s specific statement
that the Letter was in reference to the Notice finding Claimant eligible (and not to
the Notice of Financial Determination), a specific request for a redetermination on
that issue, and specific assertions of reasons why that determination was incorrect,
Employer also stated “[p]lease note, this is not a request for an appeal; it is a request
for a noncharge.” (Id. (emphasis added).)
      Employer’s Letter, challenging the Notice finding Claimant not ineligible,
requesting a redetermination of that issue, and asserting reasons why a
redetermination should be made, was forwarded to the UC Service Center. The UC
Service Center, which received the Letter on April 6, 2018, treated the Letter as an



                                         RCJ-3
appeal. A hearing before a Referee was scheduled and held on whether Claimant
was ineligible for benefits under Section 402(b), at which Claimant and Employer
presented evidence. During those proceedings, Claimant, who was represented by
counsel, did not challenge the Referee’s authority to consider the matter. The
Referee found Claimant ineligible, and Claimant appealed to the Board. Claimant
did not raise in her appeal, or in her brief to the Board, any challenge to the Referee’s
or the Board’s authority to consider the Claimant’s eligibility. The Board affirmed.
Neither the Referee nor the Board addressed in their decisions their respective
authority to consider Claimant’s eligibility for UC benefits.
      Claimant, now pro se, argues both the Referee and the Board lacked
jurisdiction to review the Notice because Employer did not appeal the Notice, but
simply filed a request for relief from charges, an issue neither she nor her counsel
raised before the Referee or the Board. The Majority agrees with Claimant’s
arguments, first concluding that Claimant’s failure to raise the issue before her
current appeal is without moment because the issue is jurisdictional in nature. It
then concludes that, “because Employer was only requesting a relief from charges,
not filing an appeal,” the Referee and the Board lacked jurisdiction. Martin v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1354 C.D. 2018, filed July
25, 2019), slip op. at 8. However, my review of Employer’s Letter reflects that it
was an appeal from the February 23, 2018 Notice, notwithstanding Employer’s
characterizing it as something else. Thus, I must disagree with the Majority’s
contrary conclusion.
      Employer indicated the Letter was in reference to the Notice “which
allow[ed] benefits” to Claimant. (Letter (emphasis added).) Importantly, the Letter
was not in reference to a Notice of Financial Determination for Claimant, attached



                                         RCJ-4
to which are the instructions for filing a request for relief from charges. (See Notice
at 3.)        Instead, the Letter sought “a redetermination” because “[C]laimant
voluntarily quit for personal reasons,” “[c]ontinuing work was available,”
“[C]laimant quit without good cause attributable to [E]mployer,” and “[C]laimant’s
reason was personal in nature and not within the [E]mployer’s ability to control.”
(Letter (emphasis added).) Although Employer did not characterize its request as an
appeal, the Letter was filed within the Notice’s appeal period, sought a
redetermination of the allowance of benefits to Claimant, and gave the UC
authorities reasons directly challenging Claimant’s eligibility for UC benefits.
Indeed, Employer’s basis for its requested relief that Claimant voluntarily quit for
personal reasons had been asserted in Employer’s response to Claimant’s application
for benefits and was rejected by the UC Service Center. These, respectfully, are all
the hallmarks of an appeal of an eligibility determination. Employer’s Letter is not
an improper collateral attack of a final eligibility determination through the request
for relief procedures set forth in Section 302.1(e)(1) of the Law, 43 P.S. §
782.1(e)(1),2 but is a timely-filed direct attack on the Notice’s finding Claimant not
ineligible for UC benefits.
         The UC authorities have an obligation to avoid the dissipation of the UC Fund
by those not entitled to benefits based upon the information that is available to them.
See, e.g., Dep’t of Labor & Indus., Bureau of Emp’t Sec. v. Unemployment Comp.
Bd. of Review, 211 A.2d 463, 467-70 (Pa. 1965) (Lybarger); Phillips v.
Unemployment Comp. Bd. of Review, 30 A.2d 718, 723 (Pa. Super. 1943).
Employer’s action, whether intentionally or not, effectively sought to limit the scope
of the UC authorities’ review by claiming it was not “appealing” the Notice, while


         2
             Added by Section 3 of the Act of June 17, 2011, P.L. 16.


                                                RCJ-5
simultaneously asserting an entitlement to a noncharge because Claimant quit for
personal reasons (a disqualifying reason under the UC Law), and should be rejected.
Employer’s action is akin to the historic attempts by employers and claimants to
“agree” to a claimant’s receipt of UC benefits through, for example, the employer
not directly challenging a claim for benefits. However, attempts to utilize the UC
Fund for purposes other than those for which the UC Fund were created have been
rejected. Lybarger, 211 A.2d at 467-70; Goldsmith v. Unemployment Comp. Bd. of
Review (Pa. Cmwlth., No. 1385 C.D. 2008, filed July 9, 2009), slip op. at 15-16;3
Gen. Motors Corp., Fisher Body Div. v. Unemployment Comp. Bd. of Review, 232
A.2d 35, 37 (Pa. Super. 1967); Phila. Transp. Co. v. Unemployment Comp. Bd. of
Review, 141 A.2d 410, 416 (Pa. Super. 1958).                    To do otherwise would
“jeopardize[ the UC Fund’s] solvency and destroy[ the UC Fund’s] trust
characteristics.” Lybarger, 211 A.2d at 485. I, therefore, discern no error or abuse
of discretion in the UC authorities treating Employer’s filing, which was styled as a
request for relief from charges, but sought a redetermination of the Notice because
Employer contends Claimant was ineligible for UC benefits, as a timely-filed appeal
of the Notice’s contrary findings.
       There being a timely-filed appeal of the Notice, the Referee and the Board had
jurisdiction to consider Claimant’s eligibility under Section 402(b).                To hold
otherwise would allow a party’s characterization of a filing, despite the actual
contents of that filing, to supersede and hinder the UC authorities’ obligation to
avoid dissipation of the UC Fund. I also believe, as the Board argues in its brief,
that Claimant has waived her argument because she did not raise it before the Board.

       3
         Goldsmith, an unreported opinion, is cited for its persuasive value in accordance with
Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a).


                                           RCJ-6
Because I cannot agree with the Majority’s contrary conclusions, I, respectfully,
must dissent.


                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                     RCJ-7
