IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Wille, :

Petitioner :

:

v. : No. 1189 C.D. 2021

: Unemployment Compensation : Board of Review, :

Respondent : Submitted: March 10, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON

, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: April 19, 2023

Barbara Wille (Claimant) petitions for review

, pro se , of the September 30, 2021 Order of the Unemployment Compensation Board of Review (Board) denying her request for reconsideration

. Because the record show s that the Board entered the September 30, 2021 Order inadvertently , and because the Board has not yet adjudicated Claimant’s underlying appeal from the Referee’s decision

, we vacate the Board’s September 30, 2021 Order

, dismiss Claimant’s Petition for Review , and

remand this matter to the Board for consideration of the merits of Claim ant’s appeal

. Background

On May 10 , 2020

, Claimant filed an application for p andemic u nemployment

a ssistance (PUA) benefits with the Department of Labor and Industry (Department)

. Record (R.) Item No. 1. On October 29, 2020, the Department issued four separate

de cisions , denying her PUA claims on the basis that “[Claimant is] a landlord and not subject to qualify for PUA benefits under Section 2102 [] (a)(3)(A)(ii)(I) of the2

[ Coronavirus Aid, Relief, and Eco nomic Security A ct of 2020 (CARES Act)

, 15
U.S.C. § 9021 (a)(3)(A)(ii)(I) ]
, ” and assessing non

- fraud overpayments of PUA and

f ederal p andemic u nemployment c ompensation benefits. Claimant’s Br., Exs. 006

and 047. On September 27, 2021, after a hearing, the Referee issued separate o rders affirming the Department’s decisions and assessing a n additional $7,939 n on

- fraud overpayment of PUA benefits under Section 2102(h) of the CARES Act

, 15 U.S.C.
§ 9021(h)

. R. Item No. 8

. On September 27, 2021, the same day the Referee issued her decision s , Claimant sought to “[r] e

- open ” Referee Case Number 2021015249

- AT and requested that the $7,939 non

- fraud overpayment “ be reconsidered based on the premise that I am a hospitality worker and not a landlord.” Supp l . R. Item No. 1.

This request , however, was treated as an appeal to the Board and was docketed a s
Board Appeal N umber 2021001948

- BR. R. Item No. 9. 1

At this point

, the procedur al history took an unusual turn. Three days a fter

Claimant sought to re

- open the record, which was treated as an appeal, the Board’s

new electronic PUA c laims s ystem allowed Claimant to prematurely seek

reconsideration

– even though the Board had not yet issued a de cision

– and then automatically generated an o rder on September 30, 2021, purportedly denying Claimant’s request for reconsideration. See Bd.’s Br., App s . A and B; Supp l . R.

Item No. 2

. 2 Claimant then filed an appeal with this Court from the Board’s
Sep tember 30, 2021 Order

.

1 In addition to the present matter involving Board Appeal N umber 2021001948

- BR
, Claimant has three other appeals pending before the Board. See Bd.’s Br., App. B

.

2 The Board’s September 30, 2021 Order is not signed by any Board member; rather, the conclusion of the Order reads as follows:

(Footnote continued on next page...)3

Thereafter, t he Board filed a Motion to Quash Claimant’s Petition for Review

, asserting that its September 30, 2021 O rder was entered erroneously and ha d no legal

effect because the Board ha d not yet ruled on Claimant’s appeal from the Referee ’s September 27, 2021 decision . On April 2 6 , 202 2 , this Court , in a per curiam

Memorandum and Order

, denied the Motion to Quash , concluding as follows :

The Board

. . . seeks to quash [Claimant’s] petition for review to this Court on the b asis that its September 30, 2021 order denying reconsideration “has no legal effect[,]” in that the Board has not yet ruled on [Claimant’s] underlying appeal from the Referee; thus, the Board claims, its order is not appealable. However, because a Board

o rder denying reconsideration is generally an appealable order, see Williams v. Unemployment Compensation Board of Review , 125 A.3d 875 [, 876

- 77] (Pa. Cmwlth. 2015), and it further appearing that [Claimant] has timely petitioned this Court for review of the Board’s order denying reconsideration in this case, the Court declines to quash [the] petition for review based upon the unverified allegations asserted in the Board’s Motion. See Pennsylvania Rule of Appellate Procedure 123(c), Pa.R.A.P. 123(c) (“[a]n application . . . which sets forth facts which do not already appear of record shall be verified by some person having knowledge of the facts . . .”).

Wille v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 1189 C.D. 2021, filed
Apr

. 26, 2022), slip op. at 3

- 4 (emphasis added)

. Subsequently

, the Board submitted to this Court a Verification , dated October 11, 2022, prepared by Brian L. Parr , the Board’s U nemployment C ompensation

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW ##BOARDCHAIRMAN##, chairman ##BOARDMEMBER1##, member ##BOARDMEMBER2##, member

Supp l . R . Item No. 2 ( bold in original; italics added )

. The September 30, 2021 Order also purports to deny reconsideration of “the decision of the Unemployment Compensation Board of Review (Board), Docket Number 2021015249

- AT mailed on 9/27/2021,” which is actually the Referee’s

o rder from which Claimant appealed

. Id. ; see R. Item N o. 8.4

App eals System Administrator

. Bd.’s Br., App. B. In the Verification, Mr. Parr

states:
1. The [Board] has not issued an adjudication regarding Claimant’s appeal from the Referee’s decision in Board Appeal N [umber] 2021001948

- BR which is the current matter before the Court in

. . . 1189 C.D. 2021.

2. The [Board] also has not issued adjudications regarding Claimant’s related appeals from the Referee’s decisions in Board Appeal N [umbers] 2021001935

- BR, 2021001936

- BR, and 2021001937

- BR.

3. The [Department’s] PUA Claims System mistakenly allowed Claimant to access the “Request Reconsideration” function premat urely. Claimant did so on September 27, 2021, when she requested to re

- open the matter in Board Appeal N [umber] 2021001948

- BR. The Department’s PUA Claims System then automatically generated the Order dated September 30, 2021, in error denying Claimant’s purported request for reconsideration.

4. This problem with the Request Reconsideration function has subsequent ly been f

ixed

.
Id. Analysis In her appellate brief , Claimant argues only the merits of her appeal, assert ing,

inter alia

, that she is entitled to PUA benefits because “ she is a business owner [and]

not a landlord ” under the CARES Act. Claimant’s Br. at 8

. In response, the Board maintains that Claimant’s appeal should be dismissed because the Board has not

issued a final adjudication in her underlying appeal from the Referee’s decision and,

th us , this Court has nothing to review. We agree with the Board. As we stated in our prior Memorandum Opinion, o rdinarily the Board’s denial

of a request for reconsideration is a n appealable order. See Wille , slip op. at 3 (citing5

Williams , 125 A.3d at 876

- 77). However, a reconsideration request can only be made by an “ aggrieved party, ” and the Board can only rule upon such a request after

it has issued a “decision” from which the party is aggrieved. See 34 Pa. Code §
101.111(a) ( providing that an “ aggrieved party may request the Board to reconsi der its decision and if allowed, to grant further the opportunity to ” present additional

evidence at a remand hearing , submit written or oral argument , or ask the Boar d to reconsider the previously established record evidence )

. Moreover, “[i]f [an] agency action is not an ‘adjudication[,]’[] then it is not subject to judicial review by way of appeal.” Phila. Cnty. Med. Soc’y v

. Kaiser , 699
A.2d 800, 806 (Pa. Cmwlth. 1997) ( en banc ); see Section 101 of the Administrative
Agency L aw, 2 Pa. C.S. § 101 (defining “[a]djudication” as “ [a]ny final order,
decree, decision, determination or ruling by an agency affecting personal or
property rights , privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made”) (emphasis
added).

Here
, t he record establishes that : (1) t he Board inadvertently issued the September 30 , 2021 Order denying reconsideration due to a computer system glitch;
and (2) the Board did not issue a n adjudication in Appeal Number 2021001948

- BR

from which reconsideration could have been granted or denied

. Indeed, in its appellate brief, t he Board asserts that it “ is awaiting a resolut ion of the current matter before this Court before issuing its adjudications in the four related appeals from which Claimant would have appeal rights to this

. . . Court if she is aggrieved .” Bd.’s

Br. at 9.

We conclude that b ecause the Board never rul ed on Claimant’s underlying
appeal from the Referee’s decision , its Order denying reconsideration has no legal6

effect and is, therefore, a nullity. See Goldstein v. State Horse Racing Comm’n

, 557

A.2d 1183 , 1186 (Pa. Cmwlth. 1989) (dismissing an appeal filed from a null and
void order) ; see also Com. v. Greene , 265 A.3d 798, 800 (Pa. Super. 2021) (stating

that “ a legally

- null order renders an appeal taken therefrom likewise legally nul l”)

, aff’d , 284 A.3d 451 (Pa. 2022)

. Conclusion

The record est ablishe s th a t the Board’s Sept em ber 30, 2021 Order denying

reconsideration was inadvertently entered prior to the Board’s ruling on Claimant’s appeal from the Referee’s decision; therefore, the Order is a legal nullity

. Accordingly, we vacate the Board’s September 30, 2021 Order

, dismiss Claimant’s

Petition for Review , and remand this matter to the Board for consideration of the merits of Claimant’s appeal

.

____________________________ ELLEN CEISLER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Wille, :

Petitioner :

:

v. : No. 1189 C.D. 2021

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 19 th day of April, 20 23

, this Court hereby: (1) VACATES

the September 30, 2021 Order of the Unemployment Compensation Board of

Review (Board); (2) DISMISSES Barbara Wille’s (Claimant) Petition for Review ;
and (3) REMANDS this matter to the Bo ard for consideration of the merits of Claimant’s appeal

. Jurisdiction relinquished.

____________________________ ELLEN CEISLER, Judge