IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Markus Hollingsworth, :

Petitioner :

: No. 2024 C.D. 2016

v. :

: Submitted: April 13, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH

, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH 1 FILED: May 17, 2018

Markus Hollingsworth ( Claimant ) petitions

, pro se

, for review of the

November 1, 2016 order of the Unemployment Compensation Board of Review

(Board)

. In this order, the Board found that Claimant was ineligible for benefits

during the weeks in which he returned to work under Section 401(c) of the

Unemployment Compensation Law (Law). 2 The Board further ordered recoupment

1 Th is case was reassigned to th e author on February 6, 2018

.

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

, 43 P.S.

§ 801(c). Section 40 1(c) states

, in pertinent part

, that “[c] ompensation shall be payable to any

employe who is or becomes unemployed, and who

. . . has made a claim for compensation in the

proper manner and on the form prescribed by the department

. . . .” 43 P.S. §801(c).2

of $2,640.00 as a fault overpayment under Section 804(a) of the Law 3 and assessed

eight penalty weeks purs uant to Section 801 (b) and (c) of the Law, 4 imposing upon

Claimant a $396.00 penalty for intentionally failing to disclose material information.

The pertinent facts of this case are as follows. Claimant was employed

with William T. Spaeder Company (Em ployer ) as a steam fitter apprentice from

March 19, 2014

, until March 8, 2016, his last day of work. Claimant filed an

application for unemployment compensation benefits with an effective date of

November 1, 2015, establishing a weekly benefit amount of $ 448 .00 and a partial

benefit credit of $135. 00. T he Department of Labor and Industry (Department)

thereafter mailed Claimant the Unemployment Compensation H andbook

(Handbook). The Handbook informed Claimant that he must provide the

Department with truthful and complete information with respect to his claim and

must noti fy the Department immediately if he was to return to work. (Board’s

Finding of Fact (F.F.) No. 1; Certified Record (C.R.) at Item No. 1.) T he Handbook

sp ecifically warned: “ You may be committing fraud if you

. . . return to a full

- time

job

. . . without telling the [D] epartmen t” or “ work part time and do not report your

wages for the week when they were earned.” (C.R. at Item No. 1.)

3 43 P.S. § 874(a). R elevantly, Se ction 804(a) of the Law reads: “ Any person who by

reason of his fault has received any sum as compensation under this act to which he was not

entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the

Compensation Accoun t a sum equal to the amount so received by him and interest at the rate

determined by the Secretary of Revenue

. . . .” 43 P.S. §874(a).

4 43 P.S. § 871(b)

- (c)

. The pertinent portion of Section 801(b) states that when an

individual “ knowingly fails t o disclose a material fact to obtain or increase any compensation or

other payment ” under the Law, the Board may order “ a penalty period of two weeks and for not

more than one additional week for each s uch week of improper payment

. . . .” 43 P.S. § 871(b)

. If the Board determines that there was a penalty period, a claimant “ shall be liable to pay to the

Unemployment Compensation Fund a sum equal to fifteen per centum (15%) of the amount of the

compensation. ” 43 P.S. § 871(c ).3 During claim week s ending February 6 through March 12, 2016,

Claimant worked full

- time with Employer. For each of these claim weeks, Claimant

filed for, and received, unemployment compensation benefits

, but he did not report

any earnings t o the Department

. (F.F. Nos

. 3

- 5 ; C.R. at Item No. 4. ) I n responding

to the Department’s bi

- weekly claim questions, Claimant answered the following

query in the negative: “Did you work during the week you are claiming?” (C.R. at

Item No. 4. ) In this period of time

, Claimant received $2,640.00 in benefits. (F.F.

No. 5.)

On July 19, 2016, the Department discovered that Claimant had worked

for Employer from February 6 to March 12, 2016

. The Department mailed Claimant

a request for information, but Claimant did n ot respond. Subsequently, the

Department issued Claimant three notices of determination, denying benefits f or the

claim weeks at issue, finding a fault overpayment of $2,640.00

, and imposing a

penalty of $396.00 for eight penalty weeks

. (C.R. at Item No s

. 1, 3.)

After Claimant filed appeal s

, a referee convened a telephonic hearing,

at which one witness for Employer testified. The referee called the number on file

for Claimant and discovered that the number had been disconnected. By decision

mailed Sep tember 16, 2016, the referee affirmed the Department’s determinations,

basing its findings on the evi dence presented by Employer and Claimant’s claim

record

. The referee determined that Claimant was duly notified of the date and time

for the hearing and f

ailed to participate. On September 20, 2014

, Claimant called

the referee and stated that he could not receive a call on the hearing date because he

was working out of town

. (C.R. at Item No s. 1, 3, 6

, 11

- 13

. )

Claimant ap pealed to the Board

, challenging his eligibility for benefits

and the propriety of the referee’s fault and penalty determinations. Claimant,4

however, did not explain to the Board why he failed to participate in the hearing.

Nor did Claimant request a remand to the referee or otherwise assert that he should

be afforded the o pportunity to present evidence. In affirming the referee, t he Board

determined that Claimant “falsely stated he did not work each week at issue ” and

that he acted “intentionally,” noting that the “record contains no competent evidence

[to] the contrary.” (Board’s decision at 2.)

On appeal to this Court, 5 Claimant does not argue that he had good

cause for missing the telephonic hearing. 6 Claimant also does not challenge the

Board’s fin dings that he was working and received benefits duri ng the time period

at issue. Instead, Claimant contends that t he Board erred in finding that he

knowingly withhe ld or misrepresented material information

. Specifically, h e asserts

that he misplaced his unemployment card, reported that it was lost, and “ received a

new one in the mail soon after

. ” (Claimant’s brief at 3.) Apparently, in the meantime

or at a succeeding time

, “someone was filing bi

- weekly claims while he was

working,” and Claimant did not “realize” this “until after [he] was laid off” and

“ received something in the mail” from the Department. Id.

5 On appeal, our sco pe of review is limited to determining whether constitutional rights

have been violated, whether an error of law has been committed, and whether findings of fact are

supported by substantial evidence. Torres

- Bobe v. Unemployment Compensation Board of

Revi ew

, 125 A.3d 122, 126 n.3 (Pa. Cmwlth. 2015).

6 In fact, Claimant “apologize[d ]” for missing the hearing. (Claimant’s brief at 4.) In any

event, we note that where, as here, a party is dul y notified of a hearing and fails to attend that

hearing

, the par ty may not claim a right to a hearing when the issue was not raised in the notice of

appeal to the Board

. See Tri State Scientific v. Unemployment Compensation Board of Review

, 589 A .2d 305, 307 (Pa. Cmwlth. 1991); see also Crabbe v. Unemployme nt Compensation Board

of Review

,

__ A.3d

__,

__ (Pa. Cmwlth., No. 455 C.D. 2016, filed February 28, 2018) (en banc),

slip op. at 8

- 9. In these circumstances, “ the party who failed to attend the scheduled hearing has

fail ed to take the necessary steps to prot ect its own interests.” Tri State Scientific

, 589 A.2d at 307

(internal quotation marks and citation omitted).5 However, Claimant did not present any evidence to this effect to the

referee

, and the Board did not mention the matter in its opinion

. Pursuant to

administrative regulation, t he Board may not consider evidence that was not

presented to the referee in rendering its decision. See 34 Pa. Code §1 01.106 ; Lock

Haven University of the Pennsylvania State System of Higher Education v.

Unemploymen t Compensation Board of Review

, 559 A.2d 1015

, 1018 (Pa. Cmwlth.

1989). S imilarly, because mere allegations are no substitute for record evidence,

this Court cannot consider the averments of fact in Claimant’s brief when

determining whether the Board erre d in issuing its findings

. See Pryor v. Workers’

Compensation Appeal Board (Colin Service Systems)

, 923 A.2d 1197, 1205 (Pa.

Cmwlth. 2007); Andracki v. Workmen’ s Compensation Appeal Board (Allied

Eastern States Maintenance)

, 508 A.2d 624, 625 n.2 (Pa. Cmw lth. 1986). Therefore

,

we will conduct our review without regard to Claimant’s above statements.

Under Section 804(a) of the Law, the Board must order recoupment of

all benefits that are paid to “ [a]ny person who by reason of his fault has received

[benefits] to which he was not entitled

. . . .” 43 P.S. §874(a). In addition, pursuant

to Section 801(b) of the Law, the Board may impose a penalty wh en a person

“knowingly fails to disclose a material fact to obtain or increase any compensation

or other payment ” under the Law. 43 P.S. §871(b). If the record establishes that a

claimant received benefits while he intentionally withheld information that is

material to his eligibility for benefits, the Board may find that there has been a fault

overpa yment on account of fraud and order both recoupment and a penalty. See

Chishko v. Unemployment Compensation Board of Review

, 934 A.2d 172, 177

- 78

(Pa. Cmwlth. 2007).6 Here, the Board found that Claimant received the Handbook, knew that

he had to no ti fy the Department if he return ed to work

, and filed a claim for benefits

for compensable weeks ending February 6, 2016, through March 12, 2016, stating

that he did not work when he did. (F.F. Nos. 2, 4.) Our case law confirms that the

claim record and the Handbook

, standing alone, are substantial evidence upon which

to base these findings

. See Castel lo v. Unemployment Compensation Board of

Review

, 86 A.3d 294

, 299 ( Pa. Cmwlth. 2013). The case law also confirms that these

facts, when coupled with the f act that Claimant received benefits for a time period

in which he worked but stated that he did not work, are sufficient evidence upon

which the Board could naturally infer that Claimant intentionally withheld material

information. See Chishko

, 934 A.2d a t 177

- 78

. 7 Therefore, this Court concludes

that the Board did not err in concluding that Claimant was liable for recoupment

under Section 804(a) of the Law and imposing a penalty upon him under Section

801(b) of the Law

.

Accordingly, we affirm.

________________________________ PATRICIA A. McCULLOUGH, Judge

7 S ee also Williams v. Unemployment Compensation Board of Review (Pa. Cmwlth., No.

383 C.D. 2015, filed November 10, 2015), slip op. at 10

- 11

. In Williams

, this Court upheld the

Board’s decision ordering recoupment and imposing a penalty where the claim record showed that

claims were filed in the claimant’s name for certain weeks; the claimant admitted that she was

employed during those week s; and there was evidence that the claimant received benefits for those

weeks, notwithstanding the fact that the claimant asserted that the claims were filed by someone

else and without her knowledge. Williams

, s lip op. at 10

- 11 ; see Commonwealth Court Internal

Operating Procedure section 414(a), 210 Pa. Code §69.414 (a) (stating that an unreported

Commonwealth Court panel decision issued after January 15, 2008, may be cited for its persuasive

value, but not as binding precedent )

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Markus Hollingsworth, :

Petitioner :

: No. 2024 C.D. 2016

v. :

: Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 17 th day of May

, 201 8

, the November 1, 2016 order

of the Unemployment Compensation Board of Review is affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge