IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Washington, :

Petitioner : No. 1513 C.D. 2022

:

 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 060.) On June 22, 2020, the Department of Labor and 

Industry (Department) released $1,755.00 in PUA benefits to Claimant for various 

weeks ending April 11, 2020, through and including June 20, 2020. Id. The 
2

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 its 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 2104(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 Decision affirming Claimant’s

ineligibility for the duplicate payments. Id. at 059-068. The Referee noted:

The 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 Decision 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

Decision 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 Continued Assistance Act of 20212amended Section 

2102(h) of the CARES Act of 2020 to allow for a waiver of 

repayment of a PUA [o]verpayment identical to the 

repayment 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 overpayment.

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 Act, a waiver may 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, the 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 EUC 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, we 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 are 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 PUA.
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. An appeal 

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

In sum, the issue raised by Claimant, i.e., whether she should be relieved 

of the obligation to repay PUA and FPUC overpayments 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, Judge
IN 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, 2023, the December 2, 2022 

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

________________________________

PATRICIA A. McCULLOUGH, Judge