Jessica P. Fugh, Petitioner
Unemployment Compensation Board of Review, Respondent
Argued: November 16, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT
SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE
PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK,
Judge HONORABLE JOSEPH M. COSGROVE, Judge
HANNAH LEAVITT, President Judge.
Fugh (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) that
affirmed a Referee's decision that Claimant was
ineligible for the unemployment compensation she had
collected in the amount of $738 and, thus, liable for its
repayment. The Board found, as fact, that Claimant
made an honest mistake in filling out her online application
for unemployment compensation, but it nevertheless held
Claimant liable for a "fault" overpayment of
benefits pursuant to Section 804(a) of the Unemployment
Compensation Law (Law). On appeal, Claimant challenges the
Board's holding that she is liable for a fault
overpayment. She contends that her restitution obligation is
governed by Section 804(b) of the Law, 43 P.S. §874(b),
which addresses non-fault overpayments. We agree and reverse
worked full-time at Community Chevrolet, Inc. (Employer) as a
customer care associate from October 22, 2013, to July 13,
2015. In July 2015, Employer reduced her hours to 25 hours
per week and relieved her of some of her job
responsibilities. Claimant resigned and thereafter submitted
an online application for unemployment compensation. On her
application, Claimant identified the reason for her
separation from Employer as "lack of work, " which
was one of the choices provided on the application form. The
Scranton UC Service Center granted Claimant benefits for the
weeks ending July 25, 2015, August 1, 2015, and August 8,
2015, for a total of $738.
on information subsequently provided by Employer, the Service
Center concluded that Claimant was ineligible for the
benefits she had received. The Service Center then issued
three Notices of Determination. The first notice advised
Claimant that she was ineligible for benefits under Section
402(b) of the Law, 43 P.S. §802(b),  because she
lacked a necessitous and compelling reason for leaving her
job. The second notice advised Claimant that because she was
at fault for the overpayment, she had to repay the entire
amount of compensation she received plus interest in
accordance with Section 804(a) of the Law, 43 P.S.
§874(a). The third notice imposed a five-week penalty
upon Claimant under Section 801 of the Law, 43 P.S.
§871, for the stated reason that Claimant had knowingly
made a false statement or failed to disclose information in
her application for unemployment.
appealed, and a hearing was held before a Referee. Claimant
testified that in the course of her employment, she had
undergone a high risk pregnancy and suffered other ailments.
Employer was fully aware of her medical issues, which
required doctor appointments on a weekly basis. Claimant
testified that in July 2015, Employer reduced her hours to 25
hours per week; took away her desk; and assigned her work to
other employees. The office manager informed Claimant that
Employer made these changes because she had too many
doctor's appointments. Claimant resigned.
explained that when she applied for unemployment compensation
benefits, she used the Department of Labor's website.
Notes of Testimony, 10/16/2015, at 9 (N.T.). Claimant checked
the box labelled "lack of work" as her reason for
her separation from Employer. She explained her choice as
[Referee]: … when you filed your claim for benefits,
you gave your reason for separation as lack of work, is that
[Claimant]: Yes .... I misunderstood it[.] I didn't
realize what that really meant I guess.
[Counsel]: Did you, as part of your claim, did you mention
about these medical issues and getting less hours and
[Claimant]: I believe so, that's what I thought lack of
hours, or lack of work meant because [the officer manager]
had cut my hours so that's what I assumed it meant, I
didn't realize it meant like they didn't have work
for me. So I misunderstood that.
N.T. at 8-9. In short, Claimant construed "lack of
work" to refer to a reduction in work available to her,
which described her situation.
Referee affirmed the Service Center's determination in
part and reversed in part. The Referee agreed that Claimant
was ineligible for unemployment compensation under Section
402(b) of the Law because she had failed to establish a
necessitous and compelling reason for leaving her employment.
The Referee also agreed that Claimant was at fault for the
overpayment of her unemployment compensation because she
reported "lack of work" as the reason for her
separation from Employer, and this was not strictly accurate.
However, the Referee reversed the Service Center's
imposition of penalties, explaining as follows:
[I]t appears [Claimant] made a mistake when she
entered her reason for separation from [Employer], and 
there is no evidence [Claimant] intentionally failed to
disclose information, or that she made false statements[.]
Decision at 3 (emphasis added). Claimant appealed to the
review, the Board adopted the Referee's findings of fact
and conclusions of law and affirmed the Referee's order.
Claimant now petitions for this Court's review of the
appeal, Claimant argues that the Board erred in finding that
she was at fault for the overpayment of benefits. She
contends that her mistaken understanding of "lack of
work" on the Department's application does not rise
to the level of "fault." Indeed, the Referee found
"no evidence [Claimant] intentionally failed to disclose
information, or that she made false statements[.]"
Referee Decision at 3. The Board counters that Claimant was
at fault because she chose ...