IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armella Holmes, :

Petitioner :

: No. 1329 C.D. 2016

v. :

: Submitted: January 27, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: May 24, 2017

Armella Holmes (Claimant) petitions for review of the June 30, 2016 

order of the Unemployment Compensation Board of Review (Board) that affirmed 

in part and reversed in part the Referee’s decision. The Board held that Claimant 

was not ineligible for unemployment compensation benefits for the claim week 

ending October 24, 2015, but was ineligible for the benefits she collected from 

week ending November 7, 2015, through January 30, 2016, under sections 401 and 

4(u) of the Unemployment Compensation Law (Law),

1

and is liable for a fault 

overpayment in the amount of $5,330.00.

Claimant worked full-time at Three Rivers Youth (Employer) as a 

team leader from May 6, 2013 onwards. On October 19, 2015, Employer received 

 

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

§§801, 753(u).
2

a letter from Claimant’s healthcare provider that restricted her to working five 

hours per week and Employer accommodated Claimant’s restriction. Claimant

reported working five hours for the claim week ending October 24, 2015, and for 

each claim week from November 7, 2015 through January 30, 2016, and received 

$410.00 per week in benefits, for a total of $5,740.00. However, while Claimant 

told the Department of Labor and Industry (Department) that she worked five 

hours a week, she did not inform the Department this was due to a medical 

restriction. (Board’s Findings of Fact Nos. 1-9.)

The Department later issued a Notice of Determination stating that 

Claimant was ineligible for benefits under sections 401 and 4(u) of the Law, 

respectively, because she was not working less than her normal full-time work 

week for the claim weeks ending October 24, 2015, and November 7, 2015,

through January 30, 2016. The Department also assessed a fault overpayment in 

the amount of $5,740.00 under section 804(a) of the Law. Claimant appealed, and 

a hearing was held before a Referee on April 22, 2016, which Claimant did not 

attend.2

Charlene Coleman, Vice President of Human Resources, testified for 

Employer that Claimant was medically restricted to working five hours per week 

and that her request was accommodated, beginning with the claim week ending 

November 7, 2015, up to and including the date of the hearing. Employer argued

that Claimant was ineligible for benefits because she worked her full workweek 

 

2

The original hearing was scheduled for April 15, 2016, but was rescheduled to April 22, 

2016 at 10:45 a.m. at Claimant’s request. Claimant did not appear at the start of the hearing on 

April 22, 2016. The Referee noted that a hearing notice was mailed to Claimant’s last address of 

record informing her of the rescheduled date and that it was not returned as undeliverable. As 

such, the Referee presumed Claimant received the hearing notice. At 11:00 a.m., the Referee 

checked the waiting area, conference rooms, and the receptionist’s office to see if Claimant 

arrived, but Claimant was not present. The Referee presumed Claimant decided not to attend the 

hearing. Claimant did not offer an explanation as to why she did not attend the hearing.
3

and was not unemployed and also that she was at fault for the overpayment of 

benefits because she said she was eligible for benefits when she was not eligible. 

(Original Record (O.R.) at Item No. 12; Notes of Testimony at 5-6.) The Referee 

affirmed the Department’s determination. (O.R. at Item No. 13.) Claimant 

appealed to the Board.

On review, the Board affirmed in part and reversed in part. The 

Board reversed the Referee’s order regarding the claim week ending October 24, 

2015, finding there was insufficient evidence to conclude that Claimant worked all 

of the hours she could for that claim week and, therefore, she was unemployed and 

eligible for benefits for that claim week. The Board affirmed the Referee’s 

decision regarding the claim weeks ending November 7, 2015, through January 30, 

2016, finding that Claimant did not inform the Department that five hours was the 

maximum number of hours she could work and, as a result, was not unemployed. 

The Board concluded that Claimant was at fault and improperly received benefits 

because she failed to inform the Department that the five hours she worked weekly 

was a result of a medical restriction. The Board modified the Referee’s 

determination of the amount that Claimant was overpaid and reduced it to

$5,330.00 to account for the claim week ending October 24, 2015. (O.R. at Item 

No. 15.) Claimant now appeals to this Court.3

On appeal, Claimant challenges the Board’s conclusion that she is 

liable for a fault overpayment. More specifically, Claimant argues her 

overpayment should be classified as non-fault because her failure to inform the 

Department that five hours was the maximum hours she could work was not an 

 

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. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124, 

1127 n.4 (Pa. Cmwlth. 2010).
4

intentional omission or misrepresentation, but rather, was a miscommunication 

error. Claimant asserts that Employer was aware of her medical restriction and 

contends there was no evidence she “knew or should have known that she was to 

provide [notice of her employment restriction] directly to the Board” other than the 

unemployment handbook, which is vague and does not require a detailed 

explanation regarding reduced hours. (Brief for the Petitioner at 8.) Claimant 

argues that, as a lay person, she cannot be expected to understand that her 

restriction barred her from receiving benefits. As such, Claimant contends she 

complied with the Law’s notification requirements when she notified Employer of 

her restrictions.

The Board contends that its fault determination is correct because 

Claimant withheld pertinent information that would have rendered her ineligible 

for benefits. The Board argues that an intentional state of mind is not required to 

support a finding of fault and that withholding information is sufficient. The 

Board further argues that the UC Handbook provided several different 

circumstances that could impact eligibility. The UC Handbook states, in part, 

“[y]ou may lose eligibility for benefits, the following are some of the possible 

ways you can be disqualified: [y]ou limit the number of hours that you will work.”

The Board contends this shows that whether or not Claimant limited the number of 

hours she worked was material in determining whether or not she received benefits 

and that, by not reporting this to the Department, she withheld pertinent 

information. The Board argues that since Claimant was restricted to working five 

hours per week, those five hours constituted a full-time work week and, as such, 

Claimant was not unemployed and therefore ineligible for benefits and liable for a 

fault overpayment.

The standard of law on fault overpayment is provided in section 

804(a) of the Law and states, in part, as follows:
5

[a]ny 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 

Account 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). This Court has held that the term “fault” in this section “connotes 

an act to which blame, censure, impropriety, shortcoming or culpability attaches.” 

Daniels v. Unemployment Compensation Board of Review, 309 A.2d 738, 741 (Pa. 

Cmwlth. 1973). Further, fault may be found where a claimant does not provide 

truthful information to the local service center, Amspacher v. Unemployment 

Compensation Board of Review, 479 A.2d 688, 692 (Pa. Cmwlth. 1984), or where 

a claimant withholds pertinent information “which surely would have resulted in a 

denial of benefits.” Carter v. Unemployment Compensation Board of Review, 442 

A.2d 1245, 1248 (Pa. Cmwlth. 1982).

This Court recently addressed the meaning of fault in Fugh v. 

Unemployment Compensation Board of Review, 153 A.3d 1169, 1176 (Pa. 

Cmwlth. 2017), finding that a “blameworthy act requires a showing of the actor’s 

state of mind, or mens rea” and “embodies ... knowing recklessness or gross 

negligence.” We reasoned that a finding of fault “requires conduct ‘of such a 

degree or recurrence as to manifest culpability, wrongful intent, or evil design, or 

show an intentional and substantial disregard of the employer’s interest or of the 

employee’s duties and obligations to the employer.’” Id. (citing Reading Area 

Water Authority v. Unemployment Compensation Board of Review, 137 A.3d 658, 

662 (Pa. Cmwlth. 2016)). Further, “[a] negligent act alone does not constitute 

willful misconduct; rather, the conduct must be of ‘an intentional and deliberate 

nature.’” Id. (citing Grieb v. Unemployment Compensation Board of Review, 827 

A.2d 422, 426 (Pa. 2003)). 
6

Here, the Board classified Claimant’s overpayments as fault because 

she received benefits as a result of her failure to report her hourly restrictions. The 

Board argues that Claimant’s failure to report her hourly restrictions constitutes 

withholding pertinent information and that Claimant is therefore at fault. While 

withholding information may lead to a fault determination, Amspacher, 479 A.2d 

at 692, it is not clear here that such withholding “surely would have resulted in a 

denial of benefits,” Carter, 442 A.2d at 1248, given that it was only possible that 

Claimant could be disqualified for benefits by limiting the number of hours she 

worked. 

Further, while the Board argues that an intentional state of mind is not 

required to determine fault, this Court’s recent decision in Fugh has found that a 

fault determination does indeed require an intentional state of mind. However, the 

Board made no findings of fact on Claimant’s state of mind in its determination of 

fault or whether Claimant’s failure to report that she worked five hours per week as 

the result of a medical restriction was an act of negligence, which would not have 

resulted in a fault determination, or whether it was of an intentional and deliberate 

nature such that it arose to knowing recklessness or gross negligence, which would 

have properly resulted in a fault determination. Hence, a remand is warranted for 

the Board to make these additional findings and to reconsider whether Claimant 

was indeed subject to a fault overpayment.4

 

4

Claimant does not challenge the Board’s conclusion that she was ineligible for 

unemployment compensation. She challenges only the Board’s conclusion that her conduct 

subjects her to a fault overpayment. Accordingly, the Board’s holding on ineligibility is final. 

However, this Court has previously addressed medical restrictions in Giant Eagle, Inc. v. 

Unemployment Compensation Board of Review, 700 A.2d 600 (Pa. Cmwlth. 1997). Claimant 

Judith Cullen (Cullen) took a three-month leave of absence for a non-work related injury 

followed by another three-month period of short-term disability leave. Id. at 601. After her 

short-term disability leave ended, her attending physician released her to work in a light duty 

capacity. Id. at 602. Cullen informed her employer of her restriction; however, her employer 

had a policy of “only providing light duty accommodations to employees whose injuries were 

(Footnote continued on next page...)
7

Accordingly, the order of the Board is vacated and the matter is 

remanded for further findings consistent with this opinion.

________________________________

PATRICIA A. McCULLOUGH, Judge

 

(continued...)

work-related” and informed Cullen that no light duty positions were available. Id. Cullen asked 

if she could be cross-trained for another position, but the only position available was her prior 

position as a floral manager. Id. Subsequently, Cullen did not return to work. Id. Cullen applied 

for unemployment compensation benefits, but was denied as she was found to have voluntarily 

terminated her employment without a necessitous and compelling justification. Id. On appeal to 

the Board, the referee reversed the decision and awarded her benefits, finding that Cullen’s 

separation from employment was involuntary. Id.

On appeal in Giant Eagle, this Court found that Cullen voluntarily terminated her 

employment. Id. at 603. In analyzing whether a voluntary termination is of a necessitous and 

compelling nature, this Court stated, “[t]hat cause which is necessitous and compelling for an 

employee to voluntarily leave employment results from circumstances which produce pressure to 

terminate employment that is both real and substantial and which would compel a reasonable 

person to act in the same manner under the same circumstance.” Id. Further, voluntarily 

“leaving working because of a disability if the employer is able to provide other suitable work, 

shall be deemed not a cause of a necessitous and compelling nature.” Id. This Court held that, 

where an,

employee can no longer perform his regular duties due to a 

physical condition, he must communicate his medical condition to 

the employer and explain his inability to perform his regularly 

assigned duties. The employee must then be available for suitable 

work, consistent with the medical condition, to remain eligible for 

unemployment compensation benefits. 

Id. This Court held that Cullen was eligible for benefits because she communicated to her 

employer that she was available to work within the limitations her doctor gave her and that her 

employer failed to offer her suitable work within those restrictions; thus, Cullen voluntarily 

terminated her employment for reasons of a necessitous and compelling nature. Id. at 604.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armella Holmes, :

Petitioner :

: No. 1329 C.D. 2016

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 24th day of May, 2017, the order of the 

Unemployment Compensation Board of Review, dated June 30, 2016, is hereby 

vacated and the matter is remanded for further findings consistent with this 

opinion.

Jurisdiction is relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge