Opinion
No. 2118 C.D. 2011
09-07-2012
William S. Cooper, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
William S. Cooper (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which modified and affirmed, on other grounds, an Unemployment Compensation Referee's (Referee) determination finding Claimant ineligible for Emergency Unemployment Compensation (EUC) benefits. The Board concluded that Claimant was self-employed as an independent contractor pursuant to Sections 402(h) and 4(l)(2)(B) of the Unemployment Compensation Law (Law), 43 P.S. §§ 802(h), 753(l)(2)(B), and had a recoupable, non-fraud overpayment of EUC benefits pursuant to Sections 4005(b) and 4005(c) of the Supplemental Appropriations Act of 2008 (EUC Act), 26 U.S.C. § 3304, Note. On appeal, Claimant argues, inter alia, that the Board erred in finding him ineligible for EUC benefits because the relevant findings of fact are not supported by substantial evidence, the determination of self-employment was erroneous as a matter of law, and his due process rights were violated because the Board made its determination based on an issue that was not included in the prior determinations without providing Claimant the opportunity to present evidence on the issue. Claimant also asserts that the Board erred in not granting him a waiver from the non-fault overpayment.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(h) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which he is engaged in self-employment." 43 P.S. § 802(h). Section 4(l)(2)(B) sets forth two considerations that the courts use to determine whether a claimant should be considered "self-employed" for the purposes of the Law. 43 P.S. § 753(l)(2)(B); Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006).
Sections 4005(b) and (c) of the EUC Act govern the overpayment and repayment of EUC benefits for those who are ineligible for such benefits and authorizes a state agency to, inter alia, recover the amount paid by recouping it against future federal or state unemployment compensation benefits and waive such overpayments under certain circumstances. 26 U.S.C. § 3304, Note.
Claimant last worked as a project manager for Stanford Hotels on March 31, 2010; his separation from this employment is not at issue in this appeal. Claimant filed for unemployment compensation (UC) benefits. While receiving benefits, Claimant had the opportunity to work as a consultant for Hilton Hotel Corporation (Hilton) in Charlotte, North Carolina from November 1, 2010, until November 14, 2010, for $500 per day. Claimant provided Hilton with an invoice from Cooper Consulting for payment. Hilton reimbursed Claimant for his business expenses. Claimant also had the opportunity to consult for ECI, Inc. (ECI) from November 2, 2010, to December 22, 2010, wherein he conducted field visits to determine the conditions of the property visited, prepared a report of those conditions, and provided that report to the property or building owner. Claimant provided ECI with an invoice, again from Cooper Consulting, which listed his field visits and the amount owed for his services. On January 12, 2011, Claimant formed his own limited liability company, Cooper Consulting, L.L.C., in Pennsylvania, which would have been operated as a joint venture with ECI once his benefits expired. "On May 27, 2011, [C]laimant prepared and signed a Certificate of Dissolution [(Certificate)] to dissolve his limited liability company, Cooper Consulting, L.L.C." (Referee Finding of Fact (FOF) ¶ 12; Board FOF ¶ 15.) Claimant received EUC benefits for the weeks ending January 1, 2011, through March 19, 2011, totaling $6,768. (Referee FOF ¶¶ 1-14.)
It is unclear from the record when UC authorities notified Claimant that he was disqualified from receiving further EUC benefits pursuant to Section 402(h). However, he did receive a notice and completed, via a telephone interview, a questionnaire on March 30, 2011, which focused on his being a corporate officer of Cooper Consulting, L.L.C. (Claimant Questionnaire, R. Item 2.) On March 31, 2011, the Altoona UC Service Center (Service Center) issued a Notice of Determination of Overpayment of Benefits, indicating that Claimant received EUC benefits in the amount of $6,768, for which he was ineligible. (Notice of Determination of Overpayment of Benefits, R. Item 3.) On April 1, 2011, the Service Center issued a Notice of Determination finding Claimant ineligible for benefits pursuant to Starinieri v. Unemployment Compensation Board of Review, 447 Pa. 256, 257, 260, 289 A.2d 726, 726, 728 (1972) (holding that a claimant, "who is a shareholder, director and officer of a closely held corporation" and who had a substantial control over the activities of the corporation, is not an employee of the corporation and is ineligible for UC benefits), because he was an officer and sole proprietor of Cooper Consulting, L.L.C., and did not show that he did not own stock and did not have a substantial degree of control over Cooper Consulting, L.L.C. (Notice of Determination, R. Item 4.)
Claimant appealed, arguing that he was not an officer of, did not own stock in, and did not exercise substantial control over Cooper Consulting, L.L.C. (Claimant's Appeal, R. Item at 5.) The matter was assigned to a Referee for a hearing, and the Notice of Hearing indicated that the issue before the Referee was whether Claimant was ineligible under Section "402(h) - engaged in self-employment" and whether he was eligible for EUC benefits. (Notice of Hearing, R. Item 7.) Only Claimant, represented by counsel, appeared at the hearing.
In addition to the above-cited facts, Claimant testified regarding the creation of Cooper Consulting, L.L.C. and his work for Hilton and ECI. Claimant stated that he did not perform any services for Cooper Consulting, L.L.C., but did some temporary consulting work for Hilton, which is part of his former employer, Stanford, and ECI in November and December 2010. Claimant stated that he contacted the UC authorities regarding his temporary assignments, did not file for benefits during these weeks, and believed that, if he did not accept the temporary positions, he would be in danger of losing his benefits for turning down suitable work. According to Claimant, Hilton: contacted him about this temporary position, which required him to work on-site in Charlotte, North Carolina; set his daily rate of pay; and reimbursed him for all of his travel and other expenses. Claimant indicated that ECI contacted him to perform assessments, he did not solicit ECI for work, and he thought that ECI was interviewing him for full-time employment. Claimant stated that he did not do continuous work for ECI, but generated four property assessment reports. Claimant testified that ECI set a flat rate for each report and supervised his work. He stated that: ECI would assign him a property to assess; he would go to that property with an ECI employee and the property's owner; after walking through the property with the ECI employee and the property owner, he would collaborate with the ECI employee to generate notes for the report; and he would correspond and communicate with ECI employees regarding the things they observed during the walkthrough. Claimant explained that, while he was preparing his report, ECI employees would contact him via phone or other correspondence. Claimant stated that: he had a professional engineering license in Colorado; he provided engineering services to ECI under ECI's license; when the reports were transmitted to ECI's clients, it was under ECI's engineering license; and he used ECI's professional insurance. Claimant testified that, since his last assignment with ECI, he has done no other work. (Referee Hr'g Tr. at 4-5, 7-10, 12-15, 22-23, 25.)
Claimant stated that he submitted invoices to both Hilton and ECI for his services and neither Hilton nor ECI withheld taxes from their payments. Claimant explained that he prepared the invoices, which had "Cooper Consulting" on the top, to facilitate requests for payment for his services and simply used this name because his last name is Cooper. He pointed out that the invoices contained his personal tax identification number and that he deposited the payments into his personal bank account. Claimant attempted to introduce copies of bank statements from his personal account showing he received payments from Hilton and ECI, but the Referee would not consider them because there was no evidence that those deposits were related to the services Claimant provided to Hilton and ECI. Claimant testified that Cooper Consulting had no office, no business phone, no post office box, no employees, and no bank accounts. He stated that he has not advertised his services, searched for office space, or ordered any office supplies. (Referee Hr'g Tr. at 6, 8-14, 16-19.)
Claimant explained that he created Cooper Consulting, L.L.C. in an effort to obtain full-time employment with ECI, which had informed Claimant that it was interested in engaging in a joint venture with him. Claimant indicated that, without a Pennsylvania engineering license, it would be difficult for him to operate his own business or limited liability corporation. Claimant testified that he did not solicit any business for Cooper Consulting, L.L.C. and did no work using that name. Claimant stated that there was no stock in Cooper Consulting, L.L.C. and that he had completed the Certificate for Cooper Consulting, L.L.C., which he would file if necessary. The Referee stated, however, that the Certificate "may not be considered . . . in the Decision since it is presented after the facts of this case and for the unemployment weeks that are in question." (Referee Hr'g Tr. at 27.) In his closing statement, Claimant's counsel explained why Starinieri was not applicable in this matter, and the Referee "agree[d] that Starin[i]eri is not the issue here . . . . and [he would] not be ruling on that" but would be ruling on whether "Claimant[] became or was a self[-]employed business person while filing for unemployment benefits." (Referee Hr'g Tr. at 11-12, 20-22, 27-28.)
Based on the above testimony and findings of fact, the Referee found Claimant ineligible for benefits because he was a self-employed business person, having made a positive act in establishing his business when he "began to solicit his own business and provided consulting services, which he submitted an invoice from his business to receive payment for his services." (Referee Op. at 2.) The Referee held that Claimant became an unemployed business person when he filed the Certificate with the Department of State. Additionally, the Referee held that Claimant had a substantial degree of control over his corporation and, therefore, Starinieri precluded his being eligible for benefits. Finally, the Referee found that Claimant had a $7,896 non-fraud overpayment of EUC benefits, which Claimant received in compensable weeks ending November 20, 2010, November 27, 2010, and from January 1, 2011 through March 19, 2011, that was subject to recoupment under Sections 4005(b) and (c) of the EUC Act. Claimant appealed to the Board.
After reviewing the hearing record, the Board restated many of the Referee's findings of fact and made two independent findings: (1) "[C]laimant prepared his reports based on his expertise and was not supervised or directed regarding the preparation of the reports"; and (2) "Cooper Consulting had no officers and issued no stock." (Board FOF ¶¶ 10, 14.) Relying on its second finding of fact, the Board held that Starinieri did not apply because Cooper Consulting, L.L.C. had no corporate officers and issued no stock. Relying on its first finding of fact, the Board found that Claimant was an independent contractor under Section 4(l)(2)(b) of the Law and, therefore, ineligible for EUC benefits under Section 402(h). The Board made no determinations as to whether Claimant was an out-of-work business person or was otherwise self-employed. With regard to the non-fault overpayment, the Board reduced the amount of Claimant's non-fraud overpayment to $6,768 because the weeks of November 20 and 27, 2010, were not before the Referee. (Board Op. at 3-4.) Claimant requested reconsideration and the opportunity to present additional evidence on whether he was an independent contractor, which he had not presented at the Referee's hearing based on his belief that his disqualification was because he was a corporate officer, but the Board denied this request. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). However, where, as here, there is "no evidence . . . presented to support the prevailing party, then there is no evidence upon which to apply the substantial evidence test; the[n the] appropriate scope of review . . . is whether the agency erred as a matter of law or capriciously disregarded competent evidence." Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). "[C]apricious disregard of the evidence . . . exist[s] 'when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.'" Station Square Gaming, L.P. v. Pennsylvania Gaming Control Board, 592 Pa. 664, 673, 927 A.2d 232, 237 (2007) (quoting Arena v. Packaging Systems Corp., 510 Pa. 34, 38, 507 A.2d 18, 20 (1986)).
On appeal, Claimant argues, inter alia, that: (1) the Board's determination that he was not under the direction and control of Hilton and ECI and, therefore, was an independent contractor, is not supported by substantial evidence and is erroneous as a matter of law; (2) the Board violated Claimant's due process rights by ruling on an issue, his being an independent contractor, that previously had not been ruled upon by the Service Center and the Referee and that Claimant did not have an opportunity to present evidence to defend against; and (3) the Board erred in not granting him a waiver from the non-fault overpayment of EUC benefits.
We first consider Claimant's assertions that the Board's finding that he was not under the direction and control of Hilton and ECI, (FOF ¶ 10), is not supported by substantial evidence, and that its legal conclusion that he was ineligible for benefits because he was an independent contractor under Section 4(l)(2)(B) is erroneous as a matter of law. In response, the Board does not argue that Claimant was an independent contractor, as it held in its adjudication, but that Claimant "established an independent business known as Cooper Consulting, L.L.C" and, "[a]lthough he did not officially register the business . . . until January 12, 2011 . . . the business was operating prior to that time." (Board's Br. at 5.) Because Claimant had formed an independent business, the Board contends, Claimant "was not operating under the direction and control of either Hilton . . . or ECI" even though "employees [of] Hilton and ECI accompanied Claimant on his field visits and communicated with Claimant concerning what they observed and, quite possibly, provided input into what should go into [Claimant's] reports." (Board's Br. at 6.) In his reply brief, Claimant points out that the Board provides little analysis to support the reason it actually disqualified him for benefits under Section 4(l)(2)(B) and asserts that, under the totality of the circumstances, his actions do not satisfy the two prongs required to be met before a an individual is disqualified from receiving benefits as an independent contractor or self-employed person. Claimant further objects to the Board's assertion of "another novel basis for disqualification in its brief," which he contends is not supported by the record. (Claimant's Reply Br. at 9.)
Section 402(h) of the Law states that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which he is engaged in self-employment." 43 P.S. § 802(h). Generally, there is a presumption in the Law that an individual receiving wages is an employee and not an independent contractor engaged in self-employment. Electrolux Corp. v. Department of Labor and Industry, Bureau of Employer Tax Operations, 705 A.2d 1357, 1359-60 (Pa. Cmwlth. 1998) (citing 43 P.S. § 753(l)(2)(B)). However, an employer can overcome this presumption by establishing that a claimant is self-employed by proving that he is an independent contractor under Section 4(l)(2)(B). Id. at 1360. Although the Law does not define "self-employment," our Courts utilize Section 4(l)(2)(B) of the Law "to fill the void because its obvious purpose is to exclude independent contractors from coverage." Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Section 4(l)(2)(B) provides, in relevant part:
Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.43 P.S. § 753(l)(2)(B). Although normally an employer would bear the burden of proving that a claimant is self-employed, where, as here, the employer does not participate, it is the Bureau of Unemployment Compensation Benefits and Allowances (Bureau) that must establish that the claimant was: (1) free from control and direction in the performance of his service; and (2) customarily engaged in an independent trade or business as to that service. Silver v. Unemployment Compensation Board of Review, 34 A.3d 893, 896 & n.7 (Pa. Cmwlth. 2011). "[B]efore a claimant will be declared to be self-employed, both elements of Section 4(l)(2)(B) must be satisfied." Id. at 896. Whether Claimant was an employee or an independent contractor under the Law is a question of law subject to our review. Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019, 1023 n.6 (Pa. Cmwlth. 2002).
Each prong has a number of factors that will be considered to determine whether a claimant is self-employed. See, e.g., Tracy v. Unemployment Compensation Board of Review, 23 A.3d 612, 616 (Pa. Cmwlth. 2011) (setting forth the factors to be considered in determining whether the claimant's activities satisfies both prongs). "No single factor is controlling . . . and, therefore, the ultimate conclusion must be based on the totality of the circumstances." Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 961 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, we recently have held that "the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business." Silver v. Unemployment Compensation Board of Review, 34 A.3d 893, 898 (Pa. Cmwlth. 2011) (holding that a claimant, who had been receiving UC benefits, was not disqualified as an independent contractor where she worked on an as-needed basis, which constituted three hours of work over a three-month period, because such activities were insufficient to show that she was customarily engaged in an independently established trade, occupation, profession, or business); see also Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012) (relying on Silver to hold that a claimant, who had been receiving UC benefits and who accepted work on an as-needed basis, was not ineligible for benefits because, notwithstanding her acceptance of a brief independent consulting position, she was not customarily engaged in an independently established trade, occupation, profession or business.)
Unfortunately, our ability to perform effective appellate review of whether Claimant is self-employed and ineligible for benefits pursuant to Sections 402(h) and 4(l)(2)(B) is hindered by the lack of factual findings made by the Board in this matter. Although it found that Claimant was free from the direction and control of ECI and Hilton, the Board issued no findings of fact regarding the individual factors necessary for making that determination. Additionally, the Board made no findings of fact regarding whether Claimant was customarily engaged in an independently established trade, occupation, profession or business. In fact, the Board did not address the second prong of Section 4(l)(2)(B) in determining that Claimant was ineligible for benefits as an independent contractor. Thus, we must remand this matter to the Board.
Claimant also argues that the Board's Order should be reversed, or the matter remanded for an additional hearing, because he was denied due process when the Board disqualified him from receiving EUC benefits on a basis—that he was an independent contractor under Section 4(l)(2)(B)—not stated in the Notice of Determination or the Referee's decision, and which was raised for the first time in the Board's opinion finding him ineligible. Claimant asserts that he did not have adequate notice that his eligibility for benefits would be determined based on the question of whether he was an independent contractor, as this was not the legal issue stated in the Notice of Determination or ruled upon by the Referee and, therefore, he did not have the opportunity to bring evidence to defend against such a claim. The Board contends that Claimant's due process rights were not denied because, notwithstanding the basis on which the Notice of Determination and Referee's Determination were made, the Hearing Notice listed that Section 402(h) was at issue and these self-employment issues all fall within that section. The Board asserts it could consider any self-employment issue, whether expressly ruled upon or not, pursuant to its regulation at 34 Pa. Code § 101.107. Claimant responds that Section 101.107 does not apply here because the issue ruled upon by the Referee and the Service Center was whether he was ineligible because he was a corporate officer of Cooper Consulting, L.L.C., and the Board could only consider other self-employment issues if the parties agreed to such consideration, which they did not. Claimant requests that, if this Court does not reverse the Board's Order, we remand this matter to give him the opportunity to present evidence to address the reasons that the Board now asserts disqualify him from receiving EUC benefits.
"The essential elements of due process in administrative proceedings are notice and the opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case, before a tribunal with jurisdiction over the matter." Wojciechowski v. Unemployment Compensation Board of Review, 407 A.2d 142, 143 (Pa. Cmwlth. 1979). Section 101.107, which governs what issues the Board may consider on appeal, states:
(a) In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may consider an issue in the case though not expressly ruled upon in the decision of the Department or the referee and though not previously raised in the claim or appeal proceedings. However, issues not previously considered or raised will not be considered by the Board . . . unless the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.34 Pa. Code § 101.107 (emphasis added). Although Section 101.107 authorizes the Board to consider issues that were not expressly ruled upon or indicated in the notice of hearing, it may consider such issues if approved by the parties, if there is no prejudice to any party, and if such issues would be supported by the record created before the Referee. We have held that the Board's regulations, including Section 101.107, "are designed to prevent surprise to claimants." Sharp Equipment Co., 808 A.2d at 1026. Moreover, the Board may only consider what was "delineated in the Bureau's determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited." Hanover Concrete Co. v. Unemployment Compensation Board of Review, 402 A.2d 720, 721 (Pa. Cmwlth. 1979). Thus, "where an applicant has been found ineligible for benefits, this Court will limit the hearing to the reason stated in the Bureau's determination." Sharp Equipment Co., 808 A.2d at 1026 (second emphasis added).
(b) The Board shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case, with the approval of the parties, may be determined though not expressly ruled upon or indicated in the notice of hearing, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
We acknowledge the Board's argument that the Notice of Determination found Claimant ineligible on the basis that he was self-employed pursuant to Section 402(h) and that the Notice of Hearing also cited the issue as being whether Claimant engaged in self-employment. However, this matter was initiated by the Service Center having Claimant complete a questionnaire focusing on whether he was a corporate director or officer of Cooper Consulting, L.L.C., and the Notice of Determination specifically held that Claimant was ineligible on that basis, citing Starinieri. At the Referee's hearing, the Referee stated the issue was "whether or not [Claimant] became a self-employed business person while filing for and/or receiving [UC] benefits." (Referee Hr'g Tr. at 1-2), and there was no mention of Section 4(l)(2)(B) or Claimant's status as an independent contractor during that proceeding. While the overall legal issue has been whether Claimant was engaged in self-employment, the legal basis for that determination has differed at each stage of the proceedings in this matter. First, the Service Center found self-employment based on Starinieri. Then, the Referee held that Claimant was an unemployed business person having filed the Certificate dissolving Cooper Consulting, L.L.C., a document the Referee said he was not going to consider, and was ineligible under Starinieri, which the Referee indicated during the hearing would not apply in this matter. Thereafter, the Board held that Claimant was an independent contractor under Section 4(l)(2)(B). Now, before this Court, the Board argues that Claimant is ineligible because he engaged in positive steps of beginning a business enterprise. Although each of these theories fall under the legal issue of "self-employment," each theory has its own elements, its own factual bases upon which that legal determination, and defenses thereto, can be made, and its own type of evidence to establish or refute a claimant's eligibility. Thus, we do not agree that a party's due process rights of notice, an opportunity to be heard, and to defend are satisfied when, although a party is provided a general statement as to the section of the Law at issue, the Board bases its determination of ineligibility on a new legal theory that had not been raised or addressed in the prior proceedings or, most importantly, during the Referee's hearing at which a party is supposed to have an opportunity to present evidence in support of his or her eligibility.
This is especially true where it is the Bureau, not an employer, who bears the burden in these matters because, unlike employers who are bound by the issues raised in their questionnaires and appeal documents, neither the Bureau nor the other UC authorities have to file such documents in these matters.
Accordingly, as is consistent with our precedent and the principles of due process, we will vacate the Board's Order and remand this matter to the Board to hold, or appoint a referee to hold, a second hearing at which Claimant shall have an opportunity to present additional evidence regarding whether he was an independent contractor or other evidence relevant to his eligibility for benefits. The Board shall issue a new adjudication, which includes the necessary findings of fact and conclusions of law to address both prongs of the Section 4(l)(2)(B) analysis to determine whether Claimant is disqualified from receiving benefits under Section 402(h) of the Law. See, e.g., Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 961 A.2d 261, 265 (Pa. Cmwlth. 2008) (vacating the Board's order and remanding for additional findings where the decision the Board adopted did not contain adequate factual findings for applying the independent contractor test).
As for the rationale the Board now relies upon to support its determination of ineligibility, that Claimant is ineligible because he engaged in positive steps towards establishing his own business, we note that this is not the adjudicated basis for Claimant's ineligibility for benefits. Claimant objects to the Board's assertion of "another novel basis for disqualification in its brief." (Claimant's Reply Br. at 9.) Although this Court "may affirm on other grounds where grounds for affirmance exist," Frank v. Unemployment Compensation Board of Review, 556 A.2d 15, 18 n.4 (Pa. Cmwlth. 1989) (emphasis added), we are not required to do so. We decline to address the Board's alternative rationale at this moment, particularly given that some of the statements the Board makes in its brief, such as that Hilton and ECI employees accompanied Claimant on his field visits, communicated with Claimant regarding what they observed and "quite possibly, provided input into what should go into the reports," which it "does not doubt . . . may have been significant," appear to conflict with its finding that Claimant drafted his reports "based on his expertise and was not supervised or directed regarding the preparation of the reports," (Board's Br. at 6-7; FOF ¶ 10), which was the basis for its actual adjudication in this matter.
Finally, we address Claimant's argument that the Board erred in not waiving the non-fault overpayment of EUC benefits. The Board maintains that it did not have the authority to waive the non-fraud overpayment because the issue was not before the Board. Section 4005(b) of the EUC Act requires a state to order an individual who received EUC benefits, but was ineligible for such benefits, to repay the amounts received. 26 U.S.C. § 3304, Note. However, Section 4005(b) also authorizes a state to waive such repayment if the state determines that "the payment of such [EUC] was without fault on the part of the individual; and [] such repayment would be contrary to equity and good conscience." Id. Claimant states in his brief that he filed a request to waive the overpayment on April 11, 2011, and this request was denied. (Claimant's Br. at 6 n.1, 15 n.5.) However, the Board contends that this was never before the Board in these proceedings. Our review of the record certified to this Court reveals no indication that Claimant's request for a waiver was before the Referee or Board in this present appeal. Because there was no determination either granting or denying Claimant's waiver request for the Board to rule upon, we discern no error.
We note that, as the Board states in its brief, Claimant "is free to pursue a waiver application . . . ." (Board's Br. at 10.) --------
Accordingly, we affirm the Board's Order to the extent that it did not rule on Claimant's waiver request, vacate the Board's Order to the extent it found Claimant ineligible for EUC benefits as an independent contractor pursuant to Sections 402(h) and 4(l)(2)(B) of the Law, and remand the matter to the Board for an additional hearing and new adjudication in accordance with the foregoing opinion.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 7, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED IN PART and VACATED IN PART, and this matter is REMANDED for an additional hearing and new adjudication in accordance with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge