IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Iyana Tennon, :

Petitioner :

 :

v. : Nos. 1417-1424 C.D. 2016

 : Submitted: April 21, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: August 21, 2017

In these consolidated appeals, Iyana Tennon (Claimant), pro se, petitions for 

review of numerous Orders of the Unemployment Compensation (UC) Board of 

Review (Board), which found that she was a self-employed businesswoman and 

therefore ineligible for benefits pursuant to Section 402(h) of the UC Law (Law).1 

Claimant also challenges the Board’s findings of fault and fraud overpayments and 

assessment of penalty weeks and monetary penalties based upon Claimant’s failure 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 

§ 802(h), which provides, in pertinent part, that an employee shall be ineligible for benefits for 

any week in which he or she is engaged in self-employment. 
2

to disclose material facts on her applications for benefits. Upon review, we affirm 

the Board’s determinations.2

Over the course of six years, Claimant filed for and received UC benefits

and additional state extended (SB) benefits (collectively, state benefits), as well as 

federal additional compensation (FAC) benefits under the American Recovery and 

Reinvestment Act of 20093and emergency unemployment compensation (EUC) 

 

2

The eight Board Orders before us include:

1. Appeal No. 15-09-C-A959, involving a fault overpayment of $968 in benefits and a 

fraud overpayment of $100 in federal additional compensation (FAC) benefits for the weeks 

ending June 27, 2009 through July 18, 2009, and imposition of six penalty weeks. 

2. Appeal No. 15-09-C-A968, involving a fault overpayment of $8,652 in benefits and a 

fraud overpayment of $650 in FAC benefits for the weeks ending July 25, 2009 through January 

23, 2010, and imposition of 28 penalty weeks.

3. Appeal No. EUC-15-09-C-A963, involving a fault overpayment of $8,350 in benefits 

and a fraud overpayment of $625 in FAC benefits for the weeks ending January 30, 2010 

through July 17, 2010, and imposition of 27 penalty weeks.

4. Appeal No. EUC-15-09-C-A984, involving a fault overpayment of $9,352 in benefits 

and a fraud overpayment of $525 in FAC benefits for the weeks ending July 24, 2010 through 

December 4, 2010, and imposition of 30 penalty weeks.

5. Appeal No. SB-15-09-C-A971, involving a fault overpayment of $6,680 in benefits 

for the weeks ending February 5, 2011 through December 31, 2011, and imposition of 25 penalty 

weeks.

6. Appeal No. 15-09-C-A972, involving a fault overpayment of $1,870 in benefits for 

the waiting week of January 7, 2012, and weeks ending January 14, 2012 through March 24, 

2012, and October 20, 2012 through December 29, 2012, and imposition of 24 penalty weeks.

7. Appeal No. 15-09-C-A973, involving a fault overpayment of $13,442 in benefits for 

the waiting week of September 7, 2013, and weeks ending September 14, 2013 through February 

15, 2014, and June 7, 2014 through June 21, 2014, and imposition of 28 penalty weeks and a 

$2,016.30 monetary penalty.

8. Appeal No. 15-09-C-A974, involving a fault overpayment of $11,100 in benefits for 

the waiting week of September 6, 2014, and weeks ending September 13, 2014 through June 20, 

2015, and imposition of 27 penalty weeks and a $1,665 monetary penalty. 

In total, the above overpayments equal $62,314. In addition, Claimant was assessed a 

total of 195 penalty weeks and $3,681.30 in monetary penalties. 

3

P.L. 111-5, 123 Stat. 115, Section 2002(f), 26 U.S.C. § 3304, note. 
3

benefits pursuant to the Emergency Unemployment Act of 2008 (EUC Act)4

(collectively, federal benefits). In 2015, after learning from a former employer that 

Claimant might be engaged in self-employment at a non-profit private school she 

founded, Virtuous Academy, the local UC service center referred the matter to the 

Internal Audits Division of the Department of Labor and Industry (Department) to 

investigate. Based upon that investigation, Notices of Determination were issued 

finding Claimant was engaged in self-employment and, therefore, ineligible for 

benefits under Section 402(h) of the Law. The Department imposed fault 

overpayments for state benefits and fraud overpayments for federal benefits, as 

well as assessed penalty weeks and monetary penalties against Claimant. (See

Notices of Determination.) 

Claimant appealed these Determinations, and a hearing before a Referee was 

scheduled. At the hearing, the Department presented the testimony of an internal 

audits investigator and a claims examiner. In addition, the Department subpoenaed 

a witness who previously worked for Claimant at Virtuous Academy.5 Claimant, 

who was then represented by counsel, also testified. 

Based upon the testimony and evidence presented at the consolidated 

hearing, the Referee issued Decisions finding Claimant ineligible for benefits 

under Section 402(h) of the Law, establishing fault overpayments for state benefits 

and fraud overpayments for federal benefits, and imposing multiple penalty weeks 

 

4

Title IV of the Supplemental Appropriations Act of 2008, Act of June 30, 2008, P.L. 

110-252, as amended, Sections 4001-4007, 26 U.S.C. § 3304, note. 

5

The witness was the individual approached by Claimant to assist her in obtaining funds 

to reopen the school after it closed. (Hr’g Tr., Sept. 21, 2015, at 25.) He also served on Virtuous 

Academy’s Board of Directors. (Id. at 26.) Claimant selected three board members, who, in 

turn, solicited other individuals to serve on the board. (Record of Oral Interview with Claimant, 

Apr. 22, 2015.)
4

and additional monetary penalties. (Referee Orders.) The Referee found, inter 

alia: 

 In 2008, the claimant established a non-profit school, Virtuous 

Academy[,] and established herself as [Chief Executive Officer 

(CEO)]/Executive Director of the corporation.

 The claimant funded the school through government grants and 

private funding, and performed duties as principal and middle school 

teacher.

 The claimant had the authority to conduct day-to-day operations of 

the corporation, which included deciding how funding was spen[t], 

writing checks for the corporation, choosing the school’s location, and 

entering into rental agreements, and hiring and firing. 

 The claimant received a salary for the services performed in the 

corporation, unless funding was low and all funds available needed to 

be used to keep the school open.

 At some time during 2010, the claimant had to close the school, 

due to a loss in funding. The claimant hired a consultant to assist her 

in writing for grants and obtaining additional private funding in 2011. 

 The claimant reopened the school in September 2012, after 

receiving additional grants and private funding. One of the private 

funders required the claimant to establish a board of directors to allow 

the school to be available for additional funding and other grants. The 

claimant established a board of directors in 2012 at the funder’s 

request.

 When filing her application for unemployment compensation 

benefits, the claimant had answered the question, “Are you selfemployed?” by answering, “no.”

 When filing bi-weekly requests for compensation, the claimant 

was asked by the PA Teleclaims System, “Were you a corporate 

officer or shareholder?” and the claimant answered, “no.”
5

(Referee Decisions.)6 Based upon these findings, the Referee found Claimant was 

engaged in self-employment and, therefore, was ineligible for the benefits she 

received. (Id.)

As a result, an amount equal to the paid benefits was credited to Claimant’s 

individual UC account. Because a balance was restored to Claimant’s account in 

an amount equal to that which she had previously been paid, Claimant was not 

entitled to EUC, FAC, and/or additional state extended benefits, which were paid 

when Claimant had appeared to have exhausted her UC claim and EUC claim, 

respectively.

7

 Claimant would not otherwise have been eligible for these benefits 

until her UC account was depleted. Because Claimant was not eligible for UC 

benefits because of her self-employment, the Referee reasoned she was also 

disqualified from the other benefits that flowed from that initial disqualification, 

such as EUC benefits, and found those to have resulted in overpayment, as well. 

The Referee further found that Claimant did not purge the disqualification by 

earning six times her weekly benefit rate in subsequent employment. The Referee

also found the resulting overpayments were caused by Claimant’s failure to 

provide the Department with information regarding her self-employment and by 

withholding the fact that she was an officer at the school. Thus, the Referee found 

the overpayments were fault and fraud overpayments. 

 

6

The above-quoted findings of fact were common to Appeal Nos. 15-09-C-A959, 15-09-

C-A968, 15-09-C-A972, 15-09-C-A973, and 15-09-C-A974. Different findings of fact were 

issued for the appeals involving overpayment of federal benefits. However, those appeals 

reference and rely upon the Referee Decisions in the above cases. 

7

See Referee Decisions in Appeal Nos. EUC-15-09-C-A963, EUC 15-09-C-A984, and 

SB-15-09-C-A971. 
6

On appeal, the Board adopted and incorporated the Referee’s findings and 

conclusions and affirmed the Referee Decisions as to ineligibility.

8

 However, the 

Board modified the opinions to find non-fault and non-fraud overpayments. The 

Board also did not impose any penalty weeks or monetary penalties. (Board 

Orders, Dec. 23, 2015.) 

Following a request for reconsideration filed by the Department, which the 

Board granted, the Board issued new Orders dated June 30, 2016, wherein the 

Board again adopted and incorporated the Referee’s findings and conclusions. 

However, the Board reversed its own previous orders that found non-fault and nonfraud overpayments. Instead, it affirmed the Referee’s determinations that the 

overpayments were caused by Claimant and reinstated the fault and fraud 

overpayments. The Board also affirmed the Referee’s imposition of penalty weeks 

for each of the eight cases, but modified the Referee Decisions in all but two cases9

to exclude monetary penalties on the grounds the penalty provision in the Law did 

not take effect until after Claimant had filed for those benefits.10 (Board Orders, 

June 30, 2016.)

After Claimant’s request for reconsideration was denied by the Board,11

Claimant timely appealed. In UC cases, our scope of review is limited to 

determining whether constitutional rights were violated, whether there was an error 

 

8

Prior to issuing its decision, the Board remanded the matter to the Referee for further 

development of the record based upon Claimant’s request. A remand hearing was held on 

November 20, 2015. 

9

The Board upheld the imposition of a monetary penalty in Appeal Nos. 15-09-C-A973

and 15-09-C-A974 in the amounts of $2,016.30 and $1,665, respectively. 

10 Section 801(c) of the Law, 43 P.S. § 871(c), which provides for a 15-percent monetary 

penalty, became effective on October 23, 2013. 

11 We note that Claimant’s Request for Reconsideration was written on Virtuous 

Academy letterhead, which identifies Claimant as Executive Director. 
7

of law committed, or whether the findings of fact are supported by substantial 

evidence. Baer v. Unemployment Comp. Bd. of Review, 739 A.2d 216, 217 (Pa. 

Cmwlth. 1999). On appeal, Claimant does not specifically challenge any of the 

Board’s findings; rather, she contends that the legal conclusion drawn from those 

findings – that Claimant is self-employed – is incorrect. Whether a claimant is 

self-employed is a question of law, fully reviewable by this Court. Id. 

Under Section 402(h) of the Law, an employee is ineligible for benefits for 

any week he or she is engaged in self-employment. 43 P.S. § 802(h). The 

rationale behind this rule is that the “Law was not enacted to compensate 

individuals who fail in their business ventures and become unemployed 

businessmen.” Starinieri v. Unemployment Comp. Bd. of Review, 289 A.2d 726, 

727 (Pa. 1972). In short, the Law is “not insurance for individual business 

undertakings.” Buchanan v. Unemployment Comp. Bd. of Review, 581 A.2d 1005, 

1008 (Pa. Cmwlth. 1990). To determine whether a claimant is engaged in selfemployment, we must examine whether the claimant “exercises a substantial 

degree of control over a corporation.” Leace v. Unemployment Comp. Bd. of 

Review, 92 A.3d 1272, 1275 (Pa. Cmwlth. 2014) (quoting Baer, 739 A.2d at 218). 

Whether a claimant possesses a substantial degree of control is not limited to 

considering the claimant’s ownership of stock or what corporate officer position is 

held. Essick v. Unemployment Comp. Bd. of Review, 655 A.2d 669, 671 (Pa. 

Cmwlth. 1995) (citing Geever v. Unemployment Comp. Bd. of Review, 442 A.2d 

1227, 1229 (Pa. Cmwlth. 1982)). It also includes an evaluation of whether the 

claimant had control over both the management and policies of the corporation. 

Baer, 739 A.2d at 218 (citing Friedman v. Unemployment Comp. Bd. of Review, 

513 A.2d 560, 561 (Pa. Cmwlth. 1986)). For instance, in Baer, although the 
8

claimant had policy making and management decisions limited by a franchise 

agreement, we found the claimant still maintained a substantial degree of control 

based upon her decision to enter into the franchise and ultimately terminate 

operations when the business became unprofitable. Id. We have also found a 

claimant possessed a sufficient degree of control to be considered self-employed 

when the claimant set her own rate of pay and determined the hours she would 

work. Holt v. Unemployment Comp. Bd. of Review, 840 A.2d 1071, 1073 (Pa. 

Cmwlth. 2004). 

Here, the Board adopted and incorporated the Referee’s findings that 

Claimant established Virtuous Academy and served as its CEO and Executive 

Director, as well as performed duties as principal and middle school teacher. 

Although Claimant’s position as corporate officer is not determinative of the issue, 

see Essick, 655 A.2d at 671; Geever, 442 A.2d at 1229, other factors support the 

Board’s conclusion that Claimant was engaged in self-employment. For instance, 

the Board further found that Claimant was responsible for day-to-day operations, 

including deciding how to spend funding, writing checks, choosing the school’s 

location, entering into rental agreements, and hiring and firing. In addition, like 

the claimants in Baer and Essick, Claimant also was responsible for making the 

decision to close the school when funding was lost and hiring a consultant to assist 

with obtaining funding, which enabled her to reopen the school. 

These findings are supported by Claimant’s own actions and testimony. As 

of April 1, 2015, she identified herself as founder on Virtuous Academy’s website. 

(Department Investigation Documents, Ex. 9, printout of Virtuous Academy 

website.) Claimant identified herself as CEO or Executive Director on her Twitter 
9

and Linked In pages.12 (Id., Exs. 14, 15/2, printouts of social media pages.) She 

signed 2012 and 2013 federal tax returns on behalf of Virtuous Academy as 

“executive officer.” (Id., Exs. 17/2, 19/6, Form 990-EZ.) An attachment to the 

same form lists her as an officer. (See id., “990 Officer Compensation 

Explanation.”) In documents registering Virtuous Academy as a non-profit 

corporation, Claimant identified herself as president, CEO, and 100 percent owner. 

(Id., Ex. 7/5, “Pennsylvania Enterprise Registration for Virtuous Academy.”) 

Furthermore, Claimant acknowledged being responsible for the day-to-day 

operations of the school. (Hr’g Tr., Nov. 20, 2015, at 20-21.) In the Claimant 

Questionnaire that was sent to her as part of the Department’s investigation, 

Claimant listed her job duties as “day[-]to[-]day operations,” and checked yes 

when asked whether she had the right to hire and fire employees, was responsible 

for policy decisions and finances, oversaw daily operations, such as directing staff 

and resources, was actively involved in problem solving, and that she had “a 

substantial degree of control, or the right to exercise control, over the day-to-day 

operations of the corporation.” (Claimant Questionnaire, Question Nos. 4, 9-14.) 

Therefore, there was substantial evidence to support the Board’s conclusion that 

Claimant was engaged in self-employment because she exercised substantial 

control over Virtuous Academy. 

The fact that Claimant was not always compensated for her work at Virtuous 

Academy does not alter our analysis. We have previously held “that the Act is not 

designed ‘to insure a weekly income to those engaged in business ventures who 

may not realize a profit therefrom during various weekly periods.’” 

 

12 At the remand hearing on November 20, 2015, Claimant testified she identified herself 

as such for “[p]ublicity” and “to get [her] name out.” (Hr’g Tr., Nov. 20, 2015, at 20-21.) 
10

Unemployment Comp. Bd. of Review v. Kessler, 365 A.2d 459, 460-61 (Pa. 

Cmwlth. 1976) (quoting Muchant Unemployment Comp. Case, 103 A.2d 438, 440 

(Pa. Super. 1954)); see also O’Hara v. Unemployment Comp. Bd. of Review, 648 

A.2d 1311, 1314 (Pa. Cmwlth. 1994) (finding whether claimant earned a profit 

irrelevant for purposes of disqualification of benefits on basis of self-employment). 

Furthermore, the fact that Claimant paid UC taxes does not necessarily entitle her

to benefits. Leace, 92 A.3d at 1276 n.3.

Having concluded that Claimant was self-employed and, thus, not entitled to 

benefits, we must determine whether the Board erred in assessing fault 

overpayments for UC benefits, fraud overpayments for EUC benefits, as well as 

penalty weeks and monetary penalties.13 Claimant maintains there is no evidence 

that she received benefits to which she was not entitled by reason of her own fault 

or that she committed fraud in order to obtain benefits. The Board contends 

Claimant knowingly withheld material information when she applied for benefits 

and filed her biweekly claims. 

Section 804(a) of the Law provides that a claimant who by reason of his or 

her own fault receives benefits to which he or she is not entitled is responsible for 

repaying the amount plus interest. 43 P.S. § 874(a). In addition, if a claimant 

makes a false statement knowing it to be false or knowingly fails to disclose a 

 

13 Whether the overpayment was the fault of Claimant is an important matter, as it 

determines how the overpayment may be recouped. Fault and/or fraud overpayments may be 

collected in a number of ways, including by placing a lien on a claimant’s personal and real 

property, filing a civil action, deducting the overpayment from future benefits, or a combination 

of these methods. Sections 308.1, 309, and 804 of the Law, 43 P.S. §§ 788.1, 789, 874(a). 

Section 308.1 was added by Section 4 of the Act of April 23, 1942, Ex. Session, P.L. 60, as 

amended. On the other hand, non-fault overpayments may only be recovered through deductions 

from future UC benefits. 43 P.S. § 874(b)(1). 
11

material fact to obtain compensation, that person may be subject to penalty weeks 

and a 15 percent monetary penalty. Section 801(b), (c) of the Law, 43 P.S. § 871 

(b), (c). Under the EUC Act, a claimant is similarly responsible for repaying an

overpayment of EUC benefits, though repayment may be waived if the state 

agency determines the overpayment was without fault on the part of the claimant

and repayment would be inequitable.

14

 Section 4005(b) of the EUC Act, 26 U.S.C. 

§ 3304, note. 

“Fault” is “more than a voluntary act.” Daniels v. Unemployment Comp. Bd. 

of Review, 309 A.2d 738, 741 (Pa. Cmwlth. 1973). Rather, it “connotes an act to 

which blame, censure, impropriety, shortcoming or culpability attaches.” Chishko 

v. Unemployment Comp. Bd. of Review, 934 A.2d 172, 177 (Pa. Cmwlth. 2007)

(quoting Kelly v. Unemployment Comp. Bd. of Review, 849 A.2d 469, 473 (Pa. 

Cmwlth. 2004)). It encompasses knowing recklessness or gross negligence. Fugh 

v. Unemployment Comp. Bd. of Review, 153 A.3d 1169, 1176 (Pa. Cmwlth. 2017). 

A claimant cannot be held liable for a fault and/or fraud overpayment for mere 

mistake or confusion. Id. at 1177. “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). If a 

claimant withholds information or provides misleading information that is material 

to eligibility, a fault overpayment has been established. Chishko, 934 A.2d at 177; 

Ryan v. Unemployment Comp. Bd. of Review, 547 A.2d 1283, 1286 (Pa. Cmwlth. 

1988). 

 

14 This provision also applies to FAC benefits. See Section 2002(f) of the American 

Recovery and Reinvestment Act of 2009, which states that Section 4005 of the EUC Act shall 

apply to FAC “to the same extent and in the same manner as in the case of [EUC].” 26 U.S.C. § 

3304, note. 
12

The rationale behind fault overpayments was discussed in Castello v. 

Unemployment Compensation Board of Review, wherein we explained:

Truthfully divulging all pertinent information regarding one’s 

employment status is required so the unemployment compensation 

authorities may make an intelligent and well-informed decision as to a 

claimant’s eligibility for benefits and proper computation of such 

benefits. This requirement, which is imposed upon all claimants, 

assists in fulfilling the Commonwealth’s duty to protect the 

unemployment compensation fund against dissipation by those not 

entitled to benefits under the law. 

86 A.3d 294, 298-99 (Pa. Cmwlth. 2013) (citations and quotation marks omitted). 

Here, the Board incorporated the Referee’s findings and conclusions, which 

included a statement that Claimant “knowingly failed to disclose material facts and 

provided false information,” specifically that she was engaged in self-employment 

and served as CEO of Virtuous Academy. (Referee Decisions at 4.) In addition, 

the Board made its own findings, which credited a Department witness, who 

testified a “corporate officer” form was mailed to the Claimant but was not 

returned. (Board Orders, June 30, 2016.) It also credited the testimony and 

documents that show Claimant answered “no” when asked about self-employment 

and her corporate involvement.15 (Id.) Although we can understand where 

confusion may lie with whether an individual is legally considered “selfemployed,” especially in the context of a non-profit organization, such as Virtuous 

Academy, Claimant repeatedly responded no when asked whether she was a 

 

15 Claimant was specifically asked when filing her initial application, “Are you selfemployed?” and when filing her biweekly claims “Were you a corporate officer or shareholder?” 

(Referee Decisions, Findings of Fact ¶¶ 10-11.) In addition, in a Claimant Questionnaire that 

Claimant completed, Claimant was asked whether she was an officer of the corporation, to which 

she responded she was not. (Claimant Questionnaire, Question No. 7.) 
13

corporate officer. Although Claimant denied serving as an officer for longer than 

eight months, the Board did not credit this testimony. It is well-settled that 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). 

Here, Claimant’s testimony was contradicted by statements she made on her own 

social networking accounts identifying herself as an officer. Because the Board’s 

findings regarding Claimant’s state of mind are supported by substantial evidence, 

the fault overpayments for state benefits and fraud overpayments for federal

benefits are proper. Furthermore, because we affirm the Board’s findings that 

Claimant failed to disclose material information on her initial applications and 

biweekly claims, it follows that the Board did not err in assessing penalty weeks or 

monetary penalties for same. 

Accordingly, we affirm the Board’s June 30, 2016 Orders. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Iyana Tennon, :

Petitioner :

 :

v. : Nos. 1417-1424 C.D. 2016

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

NOW, August 21, 2017, the June 30, 2016 Orders of the Unemployment 

Compensation Board of Review, in the above-captioned matters, are AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge