Gribshaw v., UCBR – Cmwlth. Court – en banc - May 10, 2022 – **unreported memorandum opinion
Held: Board decision against claimant reversed, case remanded, for reasons set out below.
1 – Partial week compensation - firing prior to effective date of resignation – unconventional work schedule
There are no provisions in the UC Law that address a claimant’s eligibility for partial week compensation. Thus, it is the general rule that where a claimant commits a disqualifying act, at any point in the benefit week, the claimant shall be ineligible for benefits. DeMoss, 454 A.2d at 1148. The UC Law defines “week” as “any calendar week ending at midnight Saturday, or the equivalent thereof[.]” 43 P.S. §753(z). The phrase “the equivalent thereof” is applicable here.The phrase clearly implies recognition by the General Assembly that not all full-time employees work traditional, 40-hour schedules and that some full-time employees will work unconventional schedules.
Based on our interpretation of the phrase “the equivalent thereof” in Section 4(z) of the UC Law, it would be unfair to penalize an employee who commits a disqualifying act only after she would have completed her unconventional, full- time schedule but for the employer’s conduct. Under such circumstances, we decline to impose a per se rule that prohibits an employee from receiving benefits. Thus, if Claimant can establish that she would have completed her unconventional, full-time schedule prior to her resignation, but for the termination by Employer, then she may be entitled to benefits for the period ending May 30, 2020.
2 – Referee failed to develop the record –
“Where a party is not represented by counsel, the tribunal before whom the hearing is being held should advise [her] as to [her] rights, aid [her] in examining and cross-examining witnesses, and give [her] every assistance compatible with the impartial discharge of its official duties.” 34 Pa. Code § 101.21(a). While the referee “need not advise a party on evidentiary questions or on specific points of law,” the referee “must act reasonably in assisting in the development of the necessary facts.” Hackler v. Unemployment Comp. Bd. of Rev., 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011). In determining whether the referee has given a pro se claimant reasonable assistance at an evidentiary hearing, the Court considers whether the referee is guiding the parties to bring out facts of which the referee knows or should know. Id. at 1116. Claimant brought her unconventional work schedule to the attention of the Referee when she initiated her appeal.
However, the Referee failed to question Claimant regarding her shift schedule. In our view, the Referee was on notice that Claimant worked an unconventional schedule and should have assisted Claimant in developing the record in this regard. Accordingly, we remand to the Board with instructions to remand to the Referee for further fact-finding to ascertain Claimant’s unconventional schedule.
3 – fault overpayment – no finding on claimant’s state of mind
Section 804(a) of the UC Law provides that if a person received unemployment compensation benefits due to his or her “fault,” the claimant is responsible for repaying the amount received in error plus interest. 43 P.S. §874(a). The word “fault” within the meaning of Section 804(a) connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches. Narducci v. UCBR, 183 A.3d 488, 497 (Pa. Cmwlth. 2018). Conduct that is designed to improperly mislead the Department is sufficient to establish a fault overpayment. Id. In order to find fault, the Board must make some findings with regard to a claimant’s state of mind. Id. A finding of fault is appropriate where a claimant fails to disclose earnings and is aware of an obligation to do so. Summers v. UCBR., 430 A.2d 1046 (Pa. Cmwlth. 1981).
Here, the Board made no finding as to Claimant’s state of mind or whether she intended to deceive the Department. See Board’s Decision/Order, 10/23/20. Moreover, Claimant testified before the Referee that she was unaware that she had to report that she resigned because she believed that she had been terminated. See N.T. at 6. Without a finding as to Claimant’s state of mind and in light of Claimant’s testimony, we conclude that the Board erred when it determined that Claimant was liable for a fault overpayment.
+++++
** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).
