IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Sincavage, : Petitioner :

:

v. : No. 924 C.D. 2020

: SUBMITTED: March 19, 2021 Unemployment Compensation Board : of Review, : Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY SENIOR JUDGE LEADBETTER FILED: May 21, 2021

Claimant

, Sharon Sincavage , acting pro se , petitions for review from
an order of the Unemployment Co m pensation Board of Review that affirmed the

referee’s decision determining that she is ineligible for unemployment compensation

benefits u nder Section 402(b) of the Unemployment Com pensation Law (Law) 1 for
compensable week ending May 2, 2020

, and that she has a non

- fault overpayment

in the amount of $558 under Section 804(b) of the Law. 2 We affirm.

Following a telephone hearing at which only Claimant appeared and

testified

, 3 the referee rendered the following finding s of fact:

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(b)

.

2 43 P.S. § 874(b).

3 Claimant contends that Employer’s presence would have made a difference in that it could have confirmed her assertions regarding retirement. (Claimant’s Br. a t 8.) However, there is no dispute as to the material facts. Additionally, the referee attempted to reach Employer , Mack (Footnote continued on next page...)2 1

. [C] laimant was employed with Mack Trucks [Employer] as a Material Analyst from August 16, 1983 [,] to March 27, 2020, her last day worked.

2

. [C] laimant separated from employment on March 27, 2020 [,] due to being laid off by [E] mployer in relation to COVID

- 19.

3

. On May 1, 2020, [C] laimant chose to retire for personal reasons. 4. On May 26, 2020, the [Unemployment Compensation (UC) ] Service Center issue d a Notice of Determination finding [C] laimant ineligible for benefits beginning with the week ending May 2, 2020 [,] under Section 402(b) of the [L] aw with an overpayment under Section 804(a) of the [L] aw [ ( fault overpayment ) ].

( Referee’s Findings of Fact “F.F.” Nos. 1

- 4 .)

Accordingly

, the referee determined that Claimant was ineligible for

be n efits as of compensable week ending May 2, 2020

, and did not est ablish t hat she
had necessitous and compelling cause for resigning her employment beginning with
the week ending May 2, 2020. (Referee’s July 2, 2020 Decision at 2.) Additionally,

the referee modified the initial determination of a fault overpayment to a non

- fault
overpayment. In so doing, the referee fo und:

[C]laimant received benefits for the week e n ding May 2, 2020 [,] for which she was not eligible because she chose to retire from her employment before the end of the week. [C] laimant has an overpayment in the amount of $558.

Trucks

, at the telephone number on the notice of hearing

. When h e reached the voice mail box of

a human resources employee , he stated that the hearing would proceed without Employer’s participation. (June 30, 2020 H r ’ g , Notes of Test

. “N.T.” at 1

- 2; Certified R

. “C.R.” at 68

- 69.)
A dditionally , he noted that hearing notices were sent to Employer at addresses in both Macungie, Pennsylva nia , and Greensboro, North Carolin a, and that there was no indication that either notice was returned as undeliverable or that Employer contacted his offices to request a continuance or to explain its absence. (June 12, 2020 Notice of H r’g at 1

- 3; C.R. at 53

- 56.) Finally, when the referee stated that the hearing was going to proceed, Claimant did not request a continuance.3 The testimony and evidenc e show that [she] was unemployed throughout most of the week because of being laid off before she retired. [She] later notified the Department [ of Labor and Industry ] of her retirement in an effort to be forthcoming. The Refe r ee finds that [she] did not intentionally provide false or misle a ding information or with h o ld information in order to receive benefits. Therefore, the Refere e finds that [she] has a non

fault overpayment in accordance with the [L] aw.

( Id

. at 3.)

T he Board affirmed, adopting and incorporating the referee’s findings

and conclusions . However, it clarified that “the non

- fault overpayment will be
recouped from future allocated UC benefits

. ” (Board’s Aug. 26, 2020 Decision at

1.) Claimant’s petition for review followed.

Claima nt argues that the Board erred in determining that she did not
have necessitous and compelling cause for voluntarily terminating her employment

, stating that Employer notified her in January 2020 that she had to retire on May 1,

2020

, in order to receive a n incentive bonus

. As for her unemployment
compensation benefits, Claimant contends that she should not be responsible for an
overpayment for the entire week when she retired with only one day remaining in

the week. Specifically, she maintains:

I was laid off and able to work the week ending May 2, 2020. I retired May 1. I did not just decide to retire May 1 that week. I knew since January that I was retiring May 1. It is the date [Employer] gave me. I do not t hink it would be fair for me to pay back this whole week since I was able to work but was laid off. I do think that it would be fair that I pay back the one day, Friday May 1. If I were not laid off the week ending May 2, I would have worked up to and in cluding Thursday, April 30.4

(Claimant’s Br

. at 10.)

Claimant’s position is without merit. Section 402(b) of the Law
provides that “[a]n employe shall be ineligible for compensation for any week in
which his unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature

. . . . ” 43 P.S. § 802(b). Claimant terminated her
employment voluntarily when she decided to retire but was able to work.

A ccordingly, she did not establish necessitous and compelling cause for her
voluntary termination

. Adamski v. Unemployment Comp. Bd. of Rev. , 441 A.2d 502

, 504 (Pa. Cmwlth. 1982) (no necessitous and c ompelling cause where claimant stated

that she voluntarily retired and there was no conflict in the record on that point)

.

Moreove r, t here are no provisions in the Law pertaining to a claimant’s
ineligibility for compensation for a partial week. This Court has construed the
General Assembly’s use of the phrase “any week” in Section 402(b) of the Law as

“denot [ing] a legislative intent that an unemployed worker show eligibility for
benefits during the entire period from Sunday through Saturday, and that
disqualifying conduct during any portion of a week would result in loss of benefits

for the entire week.” 4 DeMos s v. Unemployment Comp. Bd. of Rev. , 454 A.2d 1146,

1148 (Pa. Cmwlth. 1983). See also Miners Hosp. v. Unemployment Comp. Bd. of

Rev. , 658 A.2d 495, 497 (Pa. Cmwlth. 1995) (claimants ineligible for week ending
Saturday, November 21, 1992

, due to disqualify ing conduct on Friday, November

20, 1992); Jehn v. Unemployment Comp. Bd. of Rev. , 532 A.2d 57, 58 n.3 (Pa.

Cmwlth. 1987) (where claimants admitted that they were on strike until union’s

4 In statutory interpretation, our goal is to ascertain and effectuate the intention of the General Assembly. See Sections 1903(a) an d 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1903(a), 1921(b). “Where the words of a statute are clear and free from ambiguity the legislative intent is to be gleaned from those very words. ” Pa. Fin. Resp. Assigned Claims Plan v. English , 664 A.2d 84, 87 (Pa. 1995 ).5

alleged offer on Thursday, September 1, 1983, they were ineligible fo r benefits for
the week ending Saturday, September 3, 1983); Williams v. Unemployment Comp.
Bd. of Rev. , 434 A.2d 883, 884 (Pa. Cmwlth. 1981) ( claimant ineligible for week
ending Saturday, December 8, 1979

, due to disqualifying conduct on Friday,

December 7, 1979).

Additionally

, as this Court held in North Penn School District v.
Unemployment Compensation Board of Rev iew , 662 A.2d 1161, 1163 (Pa. Cmwlth.
1995), we are “bound by the clear and precise definition of ‘week’ found in the Law
and accompanying regulations.” Section 4(z) of the Law defines “week” as “ any

calendar week ending at midnight Saturday, or the equivalent thereof . . . .” 43 P.S.
§ 753(z). Section 61.1 of the regulations defines “week” as the calendar week,
Sunday thr ough Saturday, “[w]ith respect to an individual who files a claim for
unemployment . . . .” 34 Pa. Code § 61.1. Accordingly

, Claimant’s disqualification
for part of a week result ed in loss of benefits for the entire calendar week such that

her retirement on Friday, May 1, 2020

, rendered her ineligible for benefits for the

entire compensable week ending Saturday, May 2, 2020.6 For the above reasons, therefore, we affirm. 5

_____________________________________ BONNIE BRIGANCE LEADBETTER, President J udge Emerita

5 There is a three

- year statute of limitations for recoupment of non

- fault overpayments. In pertinent part, Section 804(b) of the Law provides:

Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or
the three

- year period immediately following such benefit year : Provided, That with respect to overpayments of one hundred dollars or more, recoupment from such future compensation shall not
exceed one

- third of the maximum benefit amount to which such

person is entitled during any such subsequent benefit year nor one

third of the weekly benefit amount to which such person may be entitled for any particular week.

43 P.S. § 874(b).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Sincavage, : Petitioner :

:

v. : No. 924 C.D. 2020

: Unemployment Compensation Board : of Review, : Respondent :

O R D E R

AND NOW, this 21 st day of May

, 20 21

, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, President J udge Emerita