IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Perri, :

: No. 1515 C.D. 2015

Petitioner : Submitted: November 25, 2015

:

v. :

: Unemployment Compensation :

Board of Review, :

: Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge 1

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE FRIEDMAN FILED: February 4, 2016

Rose Perri (Claimant) petitions for revi ew, pro se , of the August 5, 2015,

order of the Unemployment Compensation Board of Review (UCBR) affirming the

decision of a referee to den y Claimant’s request for waiver of repayment (waiver) of

unemployment compensation (UC) benefits under secti on 4005(b ) of the Emergency

Unemployment Compensation Act of 2008 ( EUC Act). 2 We affirm.

On April 11, 2013, the local service center issued two determination s

finding that Claimant had non

- fraud UC overpayment s totaling $21,774 for the period

1 This case was assigned to the opinion writer on o r before January 31, 2016, when Judge

Leadbetter assumed the status of senior judge.

2 Title IV of the Supplemental Appropriation s Act of 2008, P.L. 110

- 252, 122 Sta t. 232 3,

section 4005(b), 26 U.S.C. §3304 Note.2

from July 2012 to March 2013. (Findings of Fact, No. 1.) 3 On April 12, 2013,

Claimant filed the waiver request , which t he local service center denied

. ( Id. , No s

. 2

-

3 .) Claimant appealed to the referee, who conducted a hearing

. ( Id. , No. 5.)

Claimant lives alone , ow ns her own home without a mortgage, and has

no debt. ( Id. , Nos. 6, 13.) Claimant has no monthly income and relies on savings and

investments to pay her monthly expenses. ( Id. , No. 7.) Claimant has checking and

savings accounts totaling $47,000; certifi cates of deposit totaling $ 25,000; a

severance pa c kage , a portion of which is liquid assets, totaling $154,000 ; and an

individual retireme nt account with a balance of $100 ,000. ( Id. , Nos. 8

- 11.)

Claimant’s non

- discretionary household monthly expenses total $1

, 552. ( Id. , No.

12. ) This total includes food and groceries , t a xes, utilities

, transportation, insurance s,

and prescription drugs. ( Id. )

The referee denied Claimant’s request for a waiver. Although Claimant

was not at fault for the UC overpayment , the referee concluded that based on the

record, requiring Claimant to repay the overpayment would not create a financial

hardship. Claimant appeal ed to the UCBR , which affirmed. 4 The UCBR concluded

that Claimant left work for pers onal reasons

, which included tak ing care of her father,

who died in June 2014, and her own medical issues . Claimant is financially secure

and her lack of income stems from her decision not to look for work. Rather,

3 The local service center concluded that Claimant was unavailable for work due to

chemoth erapy treatment. (R. Item No. 2 .) Claimant did not appeal th e determination s

.

4 The UCBR adopted and incorporated the refere e’s findings of fact and conclusions of law

in their entirety.3

Claimant is fixing her father’s house a nd deferring receipt of her pension for as long

as possible. The UCBR concluded that Claimant’s personal decisions failed to

establish that repayment of the non

- fault overpayment would be contrary to equity

and good conscience. This appeal followed. 5

O n appeal, Claimant contends that she is not at fault for the overpayment

and should n o t be required to repay it

. This court agrees that Claimant is not at fault,

but agrees with the UCBR that a waiver is not warranted because repayment would

not be contrary to equity and good conscience.

Section 4005(b) of the EUC Act provides:

(b) Repayment.

-- In the case of individuals who have

received amounts of [EUC] under this title to which they

we re not entitled, the State shall require such individuals to

repay the amounts of such [EUC] to the State agency

, except that the State agency may waive such repayment if it

d etermines that

-

(1) the payment of such [EUC] was without fault o n the part of any such indi vi du al ; and

(2) such repayment would be contrary to equity and

good conscience.

(Emphasis added.)

5 Where, as here, the burdened party is the only party to present evidence and does not

prevail before the factfinder, this court’s review is limited to determining whether the factfinder

capri ciously disregarded competent evidence, whether constitutional rights were violated

, or

whether an error of l aw was committed. Essick v. Unemployment Compensation Board of Review

, 655 A.2d 669, 670 n.5 (Pa. Cmwlth. 1995).4

It is well established that “[w]aiver of . . . repayment is discretionary, not

compulsory [.]” Ficek v. Unemployment Compensation Board of R eview , 481 A.2d

1247, 1249 (Pa. Cmwlth. 1984 ). Financial hardship is a basis for granting a waiver

request. Deklinski v. Unemployment Compensation Board of Review , 37 A.3 d 1262

,

1264 (Pa. Cmwlth. 2012).

In Grunwald v. Unemployment Compensation Board of Review , 829

A.2d 786 , 787 (Pa. Cmwlth. 2003), the claimant received social security benefits,

owned his home without a mortgage , and had $289,000 in retirement savings.

Although the claimant testified that he had upcoming expenses including a wedding

and the return of his children to his home, this court agreed that the repayment of

$2,656 would not cause the claimant a financial hardship. Id. at 787

- 88.

Here , Claimant owns her home without a mortgage, has no debt

, and has

assets totaling more than $325,000. Although $21,774 is a significant amount to

return, the UCBR concluded that it will not ca u se Claimant a financial hard ship. T his

court is sympathetic to Claimant’s situation ; however, the EUC Act mandates the

return of the overpayment where, as here, Claimant was without fault and repayment

is not contrary to equity and good conscience , i.e., would not cause Claimant a

f inancial hardship.

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Perri, :

: No. 1515 C.D. 2015

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, :

: Respondent :

O R D E R

AND NOW, this 4 th day of February , 201 6

, we hereby affirm the August

5, 2015, order of the Unemployment Compensation Board of Review.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge