                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle Dolby,                                :
                               Petitioner      :
                                               :
                        v.                     :
                                               :
Unemployment Compensation                      :
Board of Review,                               :   No. 2410 C.D. 2014
                    Respondent                 :   Submitted: July 10, 2015



BEFORE:          HONORABLE DAN PELLEGRINI, President Judge
                 HONORABLE MARY HANNAH LEAVITT, Judge
                 HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: September 22, 2015


                 Michelle Dolby (Claimant), pro se, petitions this Court for review of the
Unemployment Compensation Board of Review’s (UCBR) December 11, 2014 order
affirming the Referee’s decision denying Claimant’s Request for Waiver of
Repayment of Emergency Unemployment Compensation (EUC) Overpayment
(Waiver Request). Essentially, there is one issue for this Court’s review: whether the
UCBR erred by denying Claimant’s Waiver Request. After review, we affirm.
                 Claimant filed an application for unemployment compensation (UC)
benefits effective November 6, 2011.               On May 21, 2012, the Pennsylvania
Department of Labor and Industry (Department) created an EUC claim within that
claim pursuant to Title IV of the Supplemental Appropriations Act of 20081 (EUC


        1
            Act of June 30, 2008, P.L. 110-252, as amended, Sections 4001-4007, 26 U.S.C. § 3304
Note.
Act). Claimant was notified that she was required to participate in reemployment
services and eligibility activities (REA) in order to receive EUC benefits. On June 7,
2012, Claimant failed to attend a scheduled, mandatory REA session. On June 29,
2012, Claimant failed to attend the rescheduled REA session. Claimant filed claims
and received EUC payments for weeks ending June 30, 2012 through March 9, 2013.2
              On July 18, 2013,3 the Duquesne UC Service Center mailed Claimant
Notices of Determination denying EUC eligibility for the week ending June 30, 2012
and thereafter, and assessing a non-fraud EUC overpayment against her in the amount
of $14,837.00.         Claimant did not appeal from the UC Service Center’s
determinations. On July 21, 2013,4 Claimant submitted her Waiver Request alleging
financial hardship.      On September 16, 2014, the UC Service Center denied the
Waiver Request, and Claimant appealed. On October 9, 2014, a Referee held a
hearing. On October 15, 2014, the Referee issued her decision affirming the UC
Service Center’s determination and denying Claimant’s Waiver Request. Claimant
appealed to the UCBR which, on December 11, 2014, adopted and incorporated the
Referee’s findings and conclusions and affirmed the Referee’s decision. Claimant
appealed to this Court.5



       2
          The Referee’s October 15, 2014 decision incorrectly identified the compensable weeks as
“ending May 19, 2014 through March 9, 2013.” Original Record, Item No. 8. The UCBR’s
December 11, 2014 order acknowledges the error, and states that the relevant finding of fact
“should read June 30, 2012, through March 9, 2013.” Original Record, Item No. 10.
        3
           The Referee’s October 15, 2014 decision incorrectly states that the July 18, 2013
determinations were issued on July 18, 2014.
        4
          The Referee’s October 15, 2014 decision incorrectly states Claimant filed her Waiver
Request on July 21, 2014.
        5
          “[W]here [c]laimant, the burdened party, was the only one to present evidence and yet did
not prevail before the factfinder, our scope of review is limited to determining whether the
factfinder capriciously disregarded competent evidence and whether there has been a constitutional
violation or an error of law.” Essick v. Unemployment Comp. Bd. of Review, 655 A.2d 669, 670 n.5
(Pa. Cmwlth. 1995).
                                                2
               Initially, we note that Claimant argues that she should not be held
responsible for the EUC overpayments because she received financial determination
notices approving EUC benefits after she failed to appear at her scheduled REA
sessions. However, Claimant did not appeal from the UC Service Center’s July 18,
2013 determinations denying EUC eligibility and establishing a non-fraud
overpayment. “Section 501(e) of the [UC] Law, 43 P.S. § 821[e],[6] provides, among
other things, that a party must appeal a determination within 15 calendar days after
such notice was delivered to that party personally or was mailed to his or her
address.” Pa. Tpk. Comm’n v. Unemployment Comp. Bd. of Review, 991 A.2d 971,
974 (Pa. Cmwlth. 2009). “It is well-settled the statutory time limit for filing an
appeal is mandatory in the absence of fraud or a breakdown in the administrative
agency.” Id. Further, “if an appeal is not timely filed within the specified time
period, the determination becomes final[.]” McClean v. Unemployment Comp. Bd. of
Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006) (quoting Shea v. Unemployment
Comp. Bd. of Review, 898 A.2d 31, 33 (Pa. Cmwlth. 2006)). Here, Claimant did not
appeal from the July 18, 2013 determinations, thus, they became final, and the issue
of whether the non-fraud overpayment was properly assessed may not be addressed in
this appeal. Accordingly, the only issue for this Court’s consideration is whether
Claimant’s Waiver Request was properly denied.
               This Court has explained:

               Section 4005(b) [of the EUC Act] requires an individual
               who has received an overpayment of EUC benefits to repay
               the amount to the applicable state agency, except that the
               agency may waive repayment if it determines that
                   (1) the payment of such [EUC] was without fault on
                   the part of any such individual; and



      6
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
                                                3
                (2) such repayment would be contrary to equity and
                good conscience.

Gnipp v. Unemployment Comp. Bd. of Review, 82 A.3d 522, 524-25 (Pa. Cmwlth.
2013) (emphasis added) (quoting 26 U.S.C. § 3304 Note); see also Grunwald v.
Unemployment Comp. Bd. of Review, 829 A.2d 786 (Pa. Cmwlth. 2003). It is well-
established that “[w]aiver of . . . repayment is discretionary, not compulsory[.]”
Ficek v. Unemployment Comp. Bd. of Review, 481 A.2d 1247, 1249 (Pa. Cmwlth.
1984); see also Grunwald, 829 A.2d at 788 (“it is a matter of administrative
discretion for the [UCBR] to grant or deny requests for waivers[.]”). This Court has
held that financial hardship is a basis for a waiver request.            Deklinski v.
Unemployment Comp. Bd. of Review, 37 A.3d 1262 (Pa. Cmwlth. 2012). Therefore,
we must determine whether the UCBR properly ruled that Claimant did not establish
that “repayment would be contrary to equity and good conscience[,]” because
Claimant failed to prove a financial hardship. Gnipp, 82 A.3d at 525 (quoting the
EUC Act).
            At the October 9, 2014 hearing, Claimant established that she earns a
gross monthly wage of $1,356.05. Applying a 15% tax exposure on that monthly
gross income, the Referee calculated a net monthly income of $1,152.65. Claimant
further demonstrated that the cost for her monthly obligations including rent, phone,
insurance, gas, electric, credit card and fuel was $644.47. Claimant did not provide
proof of monthly personal expenses such as groceries; however, the Referee imputed
a cost of $300.00 per month for groceries and other personal items. Thus, Claimant’s
total monthly expenses were found to be $944.47. The Referee subtracted Claimant’s
monthly expenses from her net monthly income and concluded that $208.18 remains
each month after Claimant pays all expenses. Based upon these facts, the Referee
concluded that Claimant did not prove that she suffered from a financial hardship that



                                          4
would justify granting her Waiver Request.7              The record evidence supports the
Referee’s conclusion that Claimant failed to establish that she is financially unable to
make repayment. Thus, the UCBR, in affirming the Referee’s decision, did not
capriciously disregard competent evidence or commit an error of law and properly
exercised its discretion in denying Claimant’s Waiver Request.
              For all of the above reasons, the UCBR’s order is affirmed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




       7
         Having found that Claimant failed to establish that repayment was “contrary to equity and
good conscience,” it was not necessary for the Referee or the UCBR to address whether Claimant
was at fault for the overpayment since Claimant was required to satisfy both elements.
                                                5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michelle Dolby,                       :
                       Petitioner     :
                                      :
                  v.                  :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 2410 C.D. 2014
                    Respondent        :


                                    ORDER

           AND NOW, this 22nd day of September, 2015, the Unemployment
Compensation Board of Review’s December 11, 2014 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
