Submitted: October 25, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
MARY HANNAH LEAVITT, Judge
Matthew Gnipp (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review assessing a non-fraud overpayment of emergency unemployment compensation (EUC) benefits under the Emergency Unemployment Compensation Act of 2008 for claim weeks ending January 21, 2012, through May 19, 2012. Claimant does not dispute the overpayment, but argues that it should not be recouped because he was not at fault. We affirm.
Claimant was employed by DynCorp as a security specialist deployed in Baghdad, Iraq from 2009 to 2011. Claimant declined to extend his contract with Employer and applied for unemployment compensation benefits on April 24, 2011. His claim was granted, and he began receiving benefits. After Claimant exhausted his regular unemployment compensation benefits, he received EUC benefits.Employer challenged Claimant's eligibility for benefits twice in 2011; both times the Referee affirmed his eligibility.
On January 6, 2012, Employer appealed the second Referee's decision. On May 17, 2012, the Board reversed the Referee's decision because it concluded that Claimant had voluntarily quit his job without cause of a necessitous and compelling nature. The Board noted "that this decision follows two prior decisions of eligibility, such that any overpayment should be deemed non-fault, non-recoupable under Section 804(b)(1)(i) of the [Unemployment Compensation Law, 43 P.S. §874(b)(1)(i)." Certified Record Item No. 2; Board Adjudication, May 17, 2012, at 2.
The UC Service Center issued two notices of determination on May 24, 2012. The first established a non-fault, non-recoupable overpayment of regular unemployment compensation benefits under Section 804(b) of the Law, 43 P.S. §874(b). The second determination advised Claimant that he had received a non-fraud overpayment of $10, 314 in EUC benefits for the weeks ending January 21, 2012, through May 19, 2012. The notice further advised Claimant that he would be required to repay the overpayment pursuant to Sections 4005(b) and 4005(c) of the EUC Act of 2008 unless he obtained a waiver or successfully appealed the determination. Claimant appealed the UC Service Center's determination but did not request a waiver of his obligation to repay the overpayment of EUC benefits.
The Referee conducted a hearing on the sole issue of whether Claimant was entitled to the EUC benefits he received for the weeks ending January 21, 2012, through May 19, 2012. Claimant testified that he should not have to repay the benefits because he submitted the disputed claims at the suggestion of the Department of Labor and Industry's representatives. Claimant testified that he would not have applied for benefits if he had known he was not entitled to them. Notes of Testimony, June 26, 2012, at 2-3.
By decision dated July 3, 2012, the Referee affirmed the UC Service Center's determination. In doing so, the Referee noted that Pennsylvania's Unemployment Compensation Law expressly allows the Department to decide whether an overpayment of regular unemployment benefits is non-fault and, thus, beyond recoupment. The federal EUC Act of 2008 is worded differently and requires a claimant to repay an overpayment unless he obtains a waiver or successfully appeals. Accordingly, the Referee was constrained to affirm the UC Service Center's determination. The Referee advised Claimant that he was still eligible to request a waiver of repayment of the EUC overpayment.
On July 9, 2012, Claimant appealed the Referee's decision to the Board. The Board affirmed and adopted the Referee's findings and conclusions. Claimant petitioned for this Court's review, arguing that the Board erred in requiring him to repay the overpayment of EUC benefits. The Board filed an application for summary relief contending that the issue of whether Claimant was entitled to a waiver of his repayment obligation was not properly before this Court because he had to first present it to the Department. The Court granted the Board's application. On reconsideration, the Court vacated its order granting summary relief and directed the Board to file a responsive brief. The Court further directed the Board to include a comparative analysis of Deklinski v. Unemployment Compensation Board of Review, 37 A.3d 1262 (Pa. Cmwlth. 2012), and Rouse v. Unemployment Compensation Board of Review, 41 A.3d 211 (Pa. Cmwlth. 2012). The matter is now ready for disposition.
On appeal,  Claimant argues that the Board erred in holding that he must repay the non-fraud overpayment of EUC benefits. Claimant asserts that he should be relieved of this obligation because he was not at fault and because requiring repayment would be inequitable. Employer responds that Claimant's issue is not properly before this Court because a request for waiver of repayment of an EUC overpayment must be initiated and addressed in a separate proceeding.
We begin with the relevant provisions of the EUC Act of 2008. Section 4005(b) requires an individual who has received an overpayment of EUC benefits to repay the amount to the applicable state agency, except that the agency may waive repayment if it determines that
(1) the payment of such emergency unemployment compensation was without fault on the part of ...