Theodore R. Frimet, Petitioner
Unemployment Compensation Board of Review, Respondent
Submitted: July 19, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
ROBERT SIMPSON JUDGE
In this administrative agency appeal we must decide how the exhaustion of regular unemployment compensation (UC) benefits and allowances under the now-inactive Self-Employment Assistance (SEA) Program impacts eligibility for extended unemployment compensation benefits. There are few cases addressing this area, and the Unemployment Compensation Board of Review (Board) asserted in its decision that the answer to this question was not clear at the time the self-employed claimant applied for emergency unemployment compensation (EUC) benefits.
In particular, Theodore R. Frimet (Claimant) representing himself, petitions for review of an order of the Board that determined Claimant ineligible for EUC benefits under Section 402(h) of the Unemployment Compensation Law (Law) after he exhausted his SEA allowances. Upon review, we affirm.
The Board made the following findings. In May 2009, Claimant separated from his previous employer, Bucks County Type and Design. Thereafter, he began receiving regular UC benefits.
In July 2009, Claimant signed an SEA agreement and entered into the program. In the SEA Program, Claimant received SEA allowances in lieu of, but in the same weekly amount as, regular UC benefits. In October 2009, Claimant began SEA training on how to start and operate a business. While in the SEA Program, Claimant started a postal consulting business, a sole proprietorship, under the name TRFrimet (the Business).
Claimant exhausted his SEA allowances in November 2009. He then opened a claim for EUC benefits. Although Claimant exhausted his SEA allowances, the Department of Labor and Industry, Office of Unemployment Compensation Benefits (Department) required him to make regular reports about the Business. Claimant continued to operate the Business as of the date of the referee's hearing in February 2010. He operated the Business free from control by anyone else.
An initial determination denied Claimant's application for EUC benefits under Section 402(h) of the Law (ineligible while engaged in self-employment). On Claimant's appeal, however, a referee reversed the initial determination and awarded EUC benefits on the basis that Claimant remained engaged in "self-employment assistance activities" as defined by Section 2 of the Self-Employment Assistance Program Act (SEA Act),  43 P.S. §920.2.
The Department then intervened and appealed to the Board. In reversing the referee, the Board observed Section 4001(d)(2) of the Emergency Unemployment Compensation Act of 2008 (EUC Act of 2008) provides that the terms and conditions of state law that apply to regular UC claims also apply to claims for EUC benefits. The Board noted that the SEA Act, which became effective in 1997 but is no longer active, authorized a training program that provided payment of weekly SEA allowances, in the same amount and duration as regular UC benefits, to claimants who participated in SEA activities and were actively engaged on a full-time basis in efforts to establish a business and become self-employed. See Section 5(a) of the SEA Act, 43 P.S. §920.5(a). The self-employment ineligibility provisions of Section 204(h) "are not applicable to income earned from self-employment by such program participant." Section 5(a)(2) of the SEA Act, 43 P.S. §920.5(a)(2) (emphasis added).
Ultimately, the Board reasoned that upon Claimant's exhaustion of his SEA allowances, he ceased to be an SEA Program participant. Thus, the SEA's immunity from disqualification based on self-employment no longer applied. As a result, Claimant's continuing self-employment disqualified him from EUC benefits under Section 402(h) of the Law. Claimant petitions for review.
A. Procedural Due Process
Claimant presents several uncounseled arguments in his brief. First, he contends the referee and the Board failed to properly assist him during the proceedings. Claimant further asserts the Board erred in considering the Department's brief because the Department failed to submit it to the Board within the "ten day window" provided "on UC appeal forms provided to every claimant." See Claimant's Br. at 10.
To begin, Board regulations governing the conduct of hearings provide that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." 34 Pa. Code §101.21(a). Further, this Court recognizes that a UC referee discharges his due process obligation to an uncounseled claimant by informing the claimant of his right to counsel, his right to offer witnesses and his right to cross-examine adverse witnesses. Oliver v. Unemployment Comp. Bd. of Review, 450 A.2d 287 (Pa. Cmwlth. 1982).
Here, the referee advised Claimant of these rights, and Claimant acknowledged he understood them. See Notes of Testimony (N.T.), 2/18/10, at 2, 4. As such, we discern no ...