IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Washington

, :

Petitioner : No. 1513 C.D. 202 2

:

v. : Submitted : October 10, 2023

: Unemployment Compensation : Board of Review

, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: November 3, 2023

Alice Washington (Claimant)

, pro se , petitions for review of an
adjudication of the Unemployment Compensation (UC) Board of Review (Board)
assessing a non

- fraud overpayment of Pandemic Unemployment Assistance (PUA)
benefits and Federal Pandemic Unemployment Compensation (FPUC) benefits.

Claimant now asks this Court to enter an order waiving her obligation to repay the

overpayment

. After review, we affirm.
I. Facts and Procedural History
On March 8, 2020, Claimant filed an application for PUA benefits

. (Certified Record (C.R.) at 0 60. ) On June 22, 2020, the Department of Labor and
Industry (Department) released $ 1,755.00 in PUA benefits to C laimant for various
weeks ending April 11, 2020, through and including June 20, 2020. Id. The2

Department also released $5,400.00 in FPUC benefits to Claimant for various weeks
ending April 4, 2020 , through and including June 20, 2020. Id. On July 14, 2020, due

to i ts own error, the Department released a duplicate payment of PUA benefits and the
corresponding FPUC benefits for the same weeks listed above. Id.

On July 27, 2020, the Department issued a Notice of Determination
finding that Claimant received duplicate payments of PUA and FPUC benefits to which

she was not entitled

, for the same weeks listed above. Id. On the same date, the
Department issued Claimant (1) a non

- fraud overpayment determination for the PUA

benefits in the amount of $1,755.00 under Section 2102(h) of the Coronavirus Aid,

Relief, and Economic Security (CARES) Act of 2020

, 1 15 U.S.C. § 9021 (h)

, and (2) a

non

- fraud overpayment determination for the FPUC benefits in the amount of
$5,400.00 under Section 2 10 4(f)(2) and 2104(f)(3) of the CARES Act

, 15 U.S.C.

§ 9023(f)(2)(3)

. Id.

On December 14, 2020, Claimant filed an appeal from the Department ’s

determination

, which was assigned to a Referee

. C.R. at 020

- 022. The Referee held a
telephone hearing on October 7, 2021, at which Claimant provided testimony. Id. at

046

- 057. On October 8, 2021, the Referee issued a D ecision affirming Claimant’s
ineligibility for the duplicate payments. Id. at 059

- 068. The Referee noted :

T he repayment of the [PUA and] FPUC benefits can be waived, but the individual must file an overpayment waiver request, which had not been completed in this matter. As such, any decision on said waiver must be done through a separate determination by the UC Service Center.

1 15 U.S.C. §§ 9001

- 9141

.3

Id. at 062. On October 22, 2021, Claimant appealed the Referee’s D ecision to the

Board. Id. at 070

- 077.

On December 2, 2022, the Board issued an Order that adopted and
incorporated the Referee’s findings and conclusions and affirmed the Referee’s

D ecision as modified. Id. at 079

- 086. The Board also found that Claimant was not at

fault for the receipt of those benefits and explained :

The C ontinued Assistance Act of 2021 2 amended Section 2102(h) of the CARES Act of 2020 to allow for a waiver of repayment of a PUA [o] verpayment identical to the
repay ment waiver provisions for an FPUC overpayment [under] Section 2104(e) of the CARES Act of 2020.

Therefore, if she has not already done so, [] [C] laimant may request a waiver of repayment of the PUA overpayment as well as the FPUC over payment.

Id. at 079 ( emphasis added)

.

Claimant now appeals to this Court.

II. Issue
On appeal

, 3 Claimant argues only that she should be granted a waiver and

not to have to pay back the benefits that resulted from the non

- fraud overpayment.

III. Discussion
Claimant’s argument on appeal to this Court does not challenge the
holding of the Board. Specifically, Claimant does not challenge any of the Board ’ s

2 Pub. L. No. 117

- 2, 135 Stat. 4.

3 Our scope of review is limited to determining whether constitutional rights have been violated, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Sheets v. Unemployment Compensation Board of Review

, 708 A.2d 884, 885
n.3 (Pa. Cmwlth. 1998)

.4

findings of fact or conclusions of law. To the contrary, she acknowledges that an
overpayment of PUA and FPUC benefits occurred. Claimant argues only that under

the CARES A ct
, a waiver m ay be granted if the overpayment was determined to be

without fault on the part of the individual and requiring repayment would be contrary

to “equity and good conscience.” 15 U.S.C. § 9023(f)( 2)(B). Claimant contends she
should not have to pay back the PUA and FPUC benefits because the overpayment was
the Department ’ s fault, not hers

. Claimant notes in her brief that she filed an
“OVERPAYMENT WAIVERS QUESTIONNAIRE” with the Department. She says
nothing about any disposition therefrom.

Section 2104 (f) (2) of the CARES Act governs repayment of PUA and
FPUC benefit overpayments. It provides as follows:

(2) Repayment In the case of individuals who have received amounts of
emergency [UC] under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such emergency [UC] to the State agency, except that the State agency may waive such repayment if it determines that

--
(A) the payment of such emergency [UC] was without fault on the part of any such individual; and

(B) such repayment would be contrary to equity and good conscience.

15 U.S.C. § 9023(f)(2) (emphasis added).

This Court has acknowledged a two

- step procedure with respect to the
recoupment of overpayments of unemployment benefits

. First, due process requires an
evidentiary hearing to determine whether an overpayment was with or without fault.
See Burley v. Department of Public Welfare , 773 A.2d 230 , 234 (Pa. Cmwlth. 2001)5

(“Due process requires an evidentiary hearing on the issue of fault before requiring a
recipient to repay an [ UC ] overpayment

. ”).

Second, t he issue of repayment is resolved in a separate hearing

, initiated
by a claimant’s request for a waiver of repayment

, and involves an inquiry as to whether
repayment will be contrary to “ equity and good conscience

. ” Rouse v. Unemployment
Compensation Board of Review , 41 A.3d 211 (Pa. Cmwlth. 2012).

Before this Court, Claimant reiterates the same argument that the Board
rejected

, i.e

, she should not have to repay the PUA and FPUC benefits because the
overpayment was not her fault.

This case is similar to this Court’s decision in Rouse

. In Rouse , this Court

held that until the issue of repayment is resolved in a separate hearing based on a claimant’s request for a waiver

, we could not address a UC claimant ’ s claim that she
should not have to pay back an overpayment of Emergency UC (EUC) benefits

. In

Rouse

, the referee affirmed the UC Service Center ’ s determination that the claimant
was overpaid EU C benefits under the American Recovery and Reinvestment Act of

2009

. 4 The referee also held that the overpayment was not the result of fraud and

reversed an assessment of penalty weeks. The claimant appealed to the Board arguing
that she should not have to repay the EUC benefits because the overpayment was not

her fault. 41 A.3d at 213. The Board held that the issue of whether the claimant was entitled to a waiver of her obligation to repay the overpayment was not before it

, and
that she would have to request a waiver from the Department

. Id.

On appeal to this Court , the claimant continued to assert waiver of
repayment as her sole issue. In affirming the Board

, w e explained:

4 26 U.S.C. § 3304

.6

On appeal, [ the c] laimant continues to raise waiver of repayment as her sole issue. As the [r] eferee and the Board correctly pointed out to [ the c] laimant, that issue has yet to be decided. The litigation concerned only whether [ the c] laimant had received an overpayment of benefits and whether any overpayment was the result of fraud. That litigation determined that [the c] laimant received a non

- fraud overpayment, and [the c ] laimant does not challenge that conclusion. As the UC Service Center ’ s instructions explained, a request for a waiver of repayment must be decided in a separate proceeding

. The request must first be made to the Department by submitting the appropriate form and an appeal can then be taken if a waiver is denied.

Id. See also Gnipp v. Unemployment Compensation Board of Review , 82 A.3d 522
(Pa. Cmwlth. 2013) (holding that this Court could not address a claimant’s contention

that he should not have to pay back EUC benefits where the issue of whether repayment
would be inequitable due to financial hardship was not raised before the referee); See

also Gadson v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 2290
C.D. 2015, filed June 9, 2016)

. 5

The facts of this case a re nearly identical to those in the Rouse case. As

in Rouse, Claimant here argues that she should be granted a waiver of her obligation to

repay the overpayments

. 6 As the Referee correctly noted

, whether Claimant will be
required to repay the overpayment of PUA and FPUC benefits has not yet been
adjudicated. The only issue before the Board concerned whether Claimant had
received an overpayment of benefits and whether the overpayment was fraudulent. The

Board only determined that Claimant received a non

- fraud overpayment, and Claimant
does not challenge that conclusion. As we explained in Rouse , a request for a waiver

5 This unreported opinion is cited as persuasive authority pursuant to this Court's Internal Operating Procedures. 210 Pa. Code § 69.414(a).

6 In Rouse

, the issue of granting a waiver of repayment obligation involved EUC , and in our case, Claimant is requesting a waiver of PU A

.7

of repayment must be initiated by the claimant via a request for a waiver and decided

in a separate proceeding

. Rouse

, 41 A.3d at 213. The request must first be made to the
Department by submitting the appropriate form

. Id. In fact , Claimant has indicated in

her brief that she already filed a request for waiver with the Department

. A n appeal

can then be taken if , and when, her request for a waiver is denied

.

In sum, t he issue raised by Claimant

, i.e., whether s he should be relieved
of the obligation to repay PUA and FPUC overpayment s because she was not at fault,
has not yet been decided by the Department , which must make that determination in

the first instance before this Court can review it

. Because a record has not been made

before the fact finder on waiver, i.e. , whether repayment will be contrary to “ equity and
good conscience, ” the Court cannot consider this issue. Because Claimant has not
raised any issue or argument challenging the Board’s determination that a non

- fraud
overpayment was made, we affirm the Board’s order.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Washington

, :

Petitioner : No. 1513 C.D. 2022

:

v. :

: Unemployment Compensation : Board of Review

, :

Respondent :

ORDER

AND NOW, this 3rd day of November , 20 2 3 , the December 2, 2022
order of the Unemployment Compensation Board of Review is hereby AFFIRMED.

________________________________ PATRICIA A. McCULLOUGH, Judge