IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Mull, :
Petitioner :
:
v. : No. 1518 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent : Submitted: November 9, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 21, 2023
Jeffrey L. Mull (Claimant) petitions for review, pro se, of the October 31,
2022 Order of the Unemployment Compensation Board of Review (Board)
affirming the decision of a Referee finding Claimant liable for a non-fraud
overpayment of pandemic unemployment assistance (PUA) benefits in the amount
of $5,125. We affirm.
Background
Claimant filed a claim for regular unemployment compensation (UC) benefits
in May 2019, after his previous employer closed its operations. Bd.’s Finding of
Fact (F.F.) No. 2. Claimant’s regular UC benefits period began on May 12, 2019.
Record (R.) Item No. 2.
In August 2019, Claimant accepted a part-time position as a crossing guard
with Selinsgrove Area High School. Notes of Testimony (N.T.), 4/12/22, at 5. In
March 2020, Claimant was offered a position with Knoebels Amusement Resort, but
he was unable to begin the job due to the COVID-19 pandemic shutdown. Bd.’s
F.F. No. 3.
In April 2020, Claimant filed an application for PUA benefits, effective March
1, 2020. Id. No. 1. Claimant was initially told by a Department of Labor and
Industry (Department) representative to apply for PUA benefits because he was
ineligible for regular UC benefits. Id. No. 4; N.T., 4/12/22, at 5-6. Claimant,
however, was later deemed eligible for regular UC benefits. Bd.’s F.F. No. 5.
Claimant received $5,125 in PUA benefits for claim weeks ending April 4,
2020, through June 20, 2020. Id. No. 6. Claimant also received $7,200 in federal
pandemic unemployment compensation (FPUC) benefits for the same 12 claim
weeks. Id. No. 7.
On January 19, 2021, the Department issued a Notice of Determination to
Claimant, finding that he had received $5,125 in PUA benefits to which he was not
entitled for claim weeks ending April 4, 2020, through June 20, 2020, under the
Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act), 15
U.S.C. §§ 9001-9141.1 R. Item No. 3. The Notice of Determination stated: “This
is a non-fraud overpayment because you claimed [PUA] when you qualified for
1
Section 2102(b) of the CARES Act provides that PUA may be provided to any “covered
individual” while he or she is unemployed or unable to work due to COVID-19, during the weeks
in which the individual is not entitled to any other unemployment compensation. 15 U.S.C. §
9021(b). Section 2102(a)(3)(A)(i) of the CARES Act defines “covered individual” as one who “is
not eligible for regular compensation or extended benefits under State or Federal law or pandemic
emergency unemployment compensation, including an individual who has exhausted all rights to
regular unemployment or extended benefits under State or Federal law”). 15 U.S.C. §
9021(a)(3)(A)(i) (emphasis added); see also Kozicki v. Unemployment Comp. Bd. of Rev., 299
A.3d 1055, 1060 (Pa. Cmwlth. 2023) (recognizing that “the PUA program was created to provide
temporary income assistance to individuals who are unemployed due to specified COVID-19
pandemic-related reasons, and who are not eligible for regular state or federal UC benefits”).
2
[regular UC], Pandemic Emergency Unemployment Compensation and Extended
Benefits in the [Commonwealth] of Pennsylvania.” Id. (emphasis added).
Claimant appealed to the Referee, who held a telephone hearing on April 12,
2022.2 Following the hearing, the Referee affirmed the Department’s finding of a
$5,125 non-fraud PUA overpayment for claim weeks ending April 4, 2020, through
June 20, 2020. R. Item No. 9. The Referee concluded in pertinent part:
Claimant was initially told to appl[y] for PUA benefits because he
thought he was not deemed eligible for regular [UC] benefits. . . .
Claimant was later deemed eligible for regular UC. As . . . Claimant
was deemed eligible for regular [UC] . . . , [he] is ineligible for PUA
benefits for the claims weeks at issue due to other program eligibility
under the provisions of Section 2102(a)(3) of the CARES Act . . . .
....
Since . . . Claimant is ineligible for the PUA benefits received, an
overpayment must be established. There is no evidence of fraud.
Therefore, a non-fraud overpayment is established under the provision
of Section 2102(h) of the CARES Act[, 15 U.S.C. § 9021(h)] . . . .
Id. (emphasis added).
2
The record shows that the Department issued three Notices of Determination on January
19, 2021, and Claimant filed separate appeals from each Notice of Determination to the Referee.
See R. Item No. 9. The Referee considered all three appeals during the telephone hearing on April
12, 2022. See R. Item No. 7. The appeal at docket number 2021024198-AT involved the
Department’s determination of Claimant’s ineligibility for PUA benefits “due to other program
eligibility” under Section 2102(a)(3) of the CARES Act. See N.T., 4/12/22, at 4. The appeal at
docket number 2021024205-AT involved the Department’s determination of Claimant’s non-fraud
overpayment of $7,200 in FPUC benefits. See id. The appeal at docket number 2021024200-AT,
which is at issue here, involved the Department’s determination of Claimant’s non-fraud
overpayment of $5,125 in PUA benefits. See id.; R. Item No. 3.
3
Claimant appealed to the Board, which adopted the Referee’s findings of fact
and conclusions of law and affirmed the Referee’s decision.3 The Board further
concluded:
On appeal, [C]laimant generally argues [that] the Referee erred in
determining that he was ineligible for [PUA] benefits. However, the
Referee found that [C]laimant was eligible for regular UC benefits
during the applicable time period [when] he received PUA benefits.
Because claimants are not eligible for PUA benefits at the same time
th[ey] are eligible for regular UC benefits, we determine [that] the
Referee did not err.
R. Item No. 12 (emphasis added). Therefore, the Board concluded that Claimant
had “a non-fraud PUA overpayment in the amount of $5,125.” Id. The Board further
instructed: “Because [C]laimant’s overpayments are deemed non-fraud, he may
submit a request to have them waived. [C]laimant will need to submit a completed
overpayment waiver questionnaire to the Office of Unemployment Compensation
Benefits.” Id. Claimant now petitions for review of that decision.4
Analysis
Claimant first challenges the Board’s conclusion that he was ineligible for
PUA benefits for 6 of the 12 claim weeks at issue – specifically, claim weeks ending
April 4, 2020, through May 9, 2020. Claimant asserts that he exhausted his initial
claim for regular UC in March 2020 and did not file a new claim for regular UC until
May 10, 2020. Claimant Br. at 10. He maintains that “[for] the first six weeks in
3
Claimant filed three separate appeals with the Board, docketed at 2022004699-BR,
2022004698-BR, and 2022004700-BR. See Claimant Br. at 7; Bd. Br. at 4-5 & n.1. As discussed
infra, the present Petition for Review arises from Board docket number 2022004699-BR. See Pet.
for Rev. at 1.
4
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the necessary factual findings are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
4
question[, he] could not be eligible for UC since [he] could not file a new UC [c]laim
until [his] previous claim from May of 2019 ended.” Id. at 14. According to
Claimant, because he did not receive regular UC for claim weeks ending April 4,
2020, through May 9, 2020, he should have been deemed eligible for PUA for those
six weeks and, therefore, was not overpaid for those weeks.
Although Claimant purports to contest only the amount of his PUA
overpayment, see Claimant Br. at 17, Claimant is actually challenging the underlying
determination that he was ineligible for PUA benefits for the claim weeks at issue.
However, Claimant’s Petition for Review arises from Board docket number
2022004699-BR, which affirmed the $5,125.00 non-fraud PUA overpayment. See
Pet. for Rev. at 1. This appeal does not arise from Board docket number
2022004698-BR (affirming Claimant’s ineligibility for PUA benefits). See Bd. Br.
at 5 n.1; see also R. Item No. 11 (stating that the Board received Claimant’s “appeal
on this [PUA] claim from the [R]eferee decision under docket number 2021024200-
AT,” affirming the Department’s finding of a non-fraud overpayment of $5,125 in
PUA benefits) (emphasis added). The Department’s Notice of Determination
finding Claimant ineligible for PUA did not address overpayment; Claimant’s non-
fraud PUA overpayment was the subject of a separate Department determination.
See supra, note 2; R. Item No. 3. Therefore, we conclude that Claimant’s
ineligibility for PUA benefits for claim weeks ending April 4, 2020, through May 9,
2020, is not properly before this Court. See Jones v. Unemployment Comp. Bd. of
Rev., 344 A.2d 287, 288 (Pa. Cmwlth. 1975) (“[B]ecause there was a right of appeal
from the [Department’s] determination of ineligibility[,] such a determination could
5
not be attacked collaterally in a later proceeding to determine whether or not the
overpayments were due to the fault of the recipient.”).5
Next, Claimant asserts that he “partially repaid overpayments in the amount
of $1792[] for his mistake for four weeks from May 10, 2020 through June 6, 2020”
and that his “partial repayment of $1792[] . . . was never recognized by either party
and never subtracted from the total [he] owed.” Id. at 9, 13. Thus, Claimant “ask[s]
the [C]ourt to reduce any final judgment of what [he] owe[s] by that amount.” Id.
at 17.6 Claimant also asserts that his “filing for a waiver [of repayment] was ignored”
and he “never heard anything on the status of [his] application for waiver.” Id. at
15.
However, the only issues before the Board in the present appeal were whether
Claimant received an overpayment of PUA benefits and whether the PUA
overpayment was fraudulent. Any questions regarding what payments Claimant
subsequently made to the Department to satisfy his overpayment obligation or
whether he was entitled to a waiver of repayment were not before the Board. See
generally Section 804 of the Unemployment Compensation Law, Act of December
5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874 (outlining
the Department’s procedures for collecting overpayments); see also Gnipp v.
5
Although Claimant correctly filed separate appeals challenging the Department’s
eligibility and overpayment determinations with both the Referee and the Board, his present
Petition for Review challenges only the Board’s decision in docket number 2022004699-BR
regarding the non-fraud PUA overpayment.
6
Claimant attached to his appellate brief several documents in support of his repayment
claim. It is well settled, however, this Court may not consider extra-record evidence that is not
part of the certified record on appeal. See Umedman v. Unemployment Comp. Bd. of Rev., 52 A.3d
558, 564 (Pa. Cmwlth. 2012); see also B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa.
Cmwlth. 2012) (“For purposes of appellate review, that which is not part of the certified record
does not exist.”). Therefore, we do not consider the extra-record evidence attached to Claimant’s
brief in our review of this matter.
6
Unemployment Comp. Bd. of Rev., 82 A.3d 522, 525 (Pa. Cmwlth. 2013)
(recognizing that “eligibility for a waiver [of an overpayment] is a determination that
must be made in a separate proceeding”) (emphasis added). Therefore, those issues
are beyond the scope of this appeal. See generally Pa.R.A.P. 1551(a); Section 703(a)
of the Administrative Agency Law, 2 Pa. C.S. § 703(a).7
Conclusion
Accordingly, we affirm the Board’s Order.
________________________________
ELLEN CEISLER, Judge
7
Before this Court, Claimant also asserts that the Referee “rushed” Claimant through his
testimony during the hearing and “didn’t consider any evidence” Claimant submitted. Claimant
Br. at 12. However, Claimant failed to challenge the conduct of the Referee’s hearing in his appeal
to the Board. See R. Item No. 10. Therefore, he has waived this claim. See Reading Nursing Ctr.
v. Unemployment Comp. Bd. of Rev., 663 A.2d 270, 275 (Pa. Cmwlth. 1995) (finding an issue
waived on appeal where the employer failed to adequately raise and develop it before the Board).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Mull, :
Petitioner :
:
v. : No. 1518 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 21st day of December, 2023, the Order of the Unemployment
Compensation Board of Review, dated October 31, 2022, is hereby AFFIRMED.
________________________________
ELLEN CEISLER, Judge