J.L. Irvin v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua L. Irvin, :
Petitioner :
:
v. : No. 1123 C.D. 2020
: Submitted: May 7, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: October 18, 2021
Joshua L. Irvin (Claimant), pro se, petitions for review of an order of the
Unemployment Compensation Board of Review (Board). The Board affirmed a
decision of an unemployment compensation referee (Referee), thereby denying
Claimant unemployment compensation benefits pursuant to Section 402(h) of the
Unemployment Compensation Law (Law),1 relating to self-employment. For the
reasons set forth below, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(h). Section 402(h) of the Law provides that an employee shall be ineligible for
unemployment compensation benefits for any week:
In which he is engaged in self-employment: Provided, however, That an
employe[e] who is able and available for full-time work shall be deemed not
Claimant was employed as a warehouse worker for Walmart (Employer)
beginning in April 2000, and he was self-employed as a realtor beginning in 2013.
(Certified Record (C.R.), Item No. 2, at 1-2, 4.) Claimant worked in both capacities
until mid-March 2020, when, due to the COVID-19 pandemic (Pandemic), he took
a leave of absence from his job with Employer and Pennsylvania Governor Tom
Wolf closed non-essential businesses, prohibiting Claimant’s work as a realtor.
(Id. at 2-4, 7-8.) Claimant filed a claim for unemployment compensation benefits
effective May 10, 2020. Notably, Claimant alleged in his initial claim that he
attempted to file a claim in the Pandemic Unemployment Assistance (PUA)2 system;
however, it prompted him to file in the standard unemployment compensation
system because his social security number is associated with an employer. (Id. at 8.)
Claimant also completed a questionnaire relating to his work as a realtor and attached
his 2019 Schedule C Profit or Loss from Business filing with the Internal Revenue
Service concerning his realtor income, which reported that Claimant had $62,852 in
gross income and $40,986 in net profit for the year. (C.R., Item No. 4.)
engaged in self-employment by reason of continued participation without
substantial change during a period of unemployment in any activity including
farming operations undertaken while customarily employed by an employer in full-
time work whether or not such work is in “employment” as defined in th[e Law]
and continued subsequent to separation from such work when such activity is not
engaged in as a primary source of livelihood. Net earnings received by the
employe[e] with respect to such activity shall be deemed remuneration paid or
payable with respect to such period as shall be determined by rules and regulations
of the [D]epartment[ of Labor and Industry (Department)].
2
“PUA provides up to 79 weeks of benefits to qualifying individuals who are otherwise
able to work and available for work within the meaning of applicable state law, except that they
are unemployed, partially unemployed, or unable or unavailable to work due to COVID-19-related
reasons.” Office of Unemployment Compensation, Pennsylvania’s Pandemic Unemployment
Assistance Portal, https://pua.benefits.uc.pa.gov/vosnet/Default.aspx (last visited Oct. 15, 2021).
2
On June 30, 2020, the Altoona UC Service Center (Service Center) issued a
notice of determination, finding Claimant ineligible for benefits under
Section 402(h) of the Law. (C.R., Item No. 6.) Claimant appealed the notice of
determination, and the Referee conducted a hearing at which Claimant appeared and
testified to the circumstances surrounding his separation from employment, his real
estate activities, and the difficulties he encountered in applying for benefits.
(C.R., Item No. 12.) Following the hearing, the Referee issued a decision
concluding that Claimant was ineligible for benefits pursuant to Section 402(h) of
the Law. (C.R., Item No. 13.) In so doing, the Referee made the following findings
of fact:
1. On May 15, 2020, [C]laimant established an initial application for
unemployment compensation benefits establishing an Application
for Benefits (AB) date of May 10, 2020.
2. From April 2000 through March 15, 2020, [C]laimant worked
full-time for [Employer] until taking a leave of absence due to the
. . . Pandemic.
3. [C]laimant’s separation from employment with [Employer] is not at
issue in this appeal.
4. In July 2013, [C]laimant began working as a licensed real estate
agent.
5. While [C]laimant works with a real estate broker, [C]laimant sets
his own schedule and is considered to be an independent contractor
by the real estate broker he works with.
6. [C]laimant did not substantially increase his involvement or activity
in his real estate activity after his separation from [Employer].
7. [C]laimant was unable to provide services as a real estate agent from
mid-March 2020 through May 15, 2020[,] per the orders of
Governor Wolf due to the . . . Pandemic.
8. During the 2019 calendar year, [C]laimant earned $28,167 in his
regular employment with [Employer].
3
9. [C]laimant realized a [net] profit of $40,986 from his real estate
activity during the 2019 calendar year.[3]
(Id. at 1-2.)
The Referee explained that, under Section 402(h) of the Law, a claimant is
not ineligible for benefits as a result of self-employment if it qualifies as a sideline
activity. (Id. at 2.) The Referee further reasoned that, to qualify, the following
conditions must be met: (1) the self-employment precedes valid separation from
full-time work; (2) it continues without substantial change after separation; (3) the
claimant remains available for full-time work after separation; and (4) the
self-employment activity is not the primary source of the claimant’s livelihood.
(Id.); see Kress v. Unemployment Comp. Bd. of Rev., 23 A.3d 632, 636
(Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012). According to the
Referee, the record evidence established that Claimant’s real estate activity preceded
his separation from full-time work with Employer, his involvement in the real estate
activity did not substantially increase following that separation, and Claimant
competently testified that he remains available for full-time work. (Id.) The
Referee, however, determined that Claimant’s self-employment as a realtor was his
primary source of livelihood. (Id. at 3.) In support of this conclusion, the Referee
reasoned that Claimant realized a net profit of $40,986 from the real estate activity,
which he conducts year-round, that Claimant’s gross earnings from his full-time
employment with Employer were $28,167, and that the prorated weekly deductible
amount from Claimant’s benefits would be $788 from Claimant’s sideline business
3
In Finding of Fact No. 9, the Referee mistakenly identified the amount listed as
Claimant’s “gross” profit, not “net” profit. The Board modified Finding of Fact No. 9 “to reflect
that the amount listed in that finding was [C]laimant’s net profit after deductions, not gross, and
that [C]laimant grossed $62,852.00 from his real estate activities.” (C.R., Item No. 15, at 1.)
4
activity.4 (Id. at 2-3.) Accordingly, the Referee concluded that Claimant did not
meet the sideline activity exception set forth in Section 402(h) of the Law, thus
rendering him ineligible for unemployment compensation benefits under that
provision.
Claimant appealed the Referee’s decision to the Board, which affirmed the
Referee’s decision. In so doing, the Board adopted and incorporated the Referee’s
findings of fact, with one modification noted above, and conclusions of law.
(C.R., Item No. 15.) The Board further observed that, while Claimant was ineligible
for benefits under the Law,5 he may wish to apply for PUA. (Id.) Claimant now
petitions this Court for review.
On appeal,6 Claimant argues that he is entitled to benefits under either the Law
or PUA and that he has been unable to receive those benefits due to widely known,
ongoing issues with both systems, which are outdated and overtaxed because of the
Pandemic. In particular, Claimant notes his frustration with the fact that he was
determined to be ineligible for benefits under the Law due to his self-employment
and told to apply for PUA, while at the same time he has been unable to apply for
PUA because his social security number is affiliated with an employer. Claimant
submits that others have been able to receive benefits for being unable to work due
to the Pandemic, including individuals who are not in actuality entitled to such
benefits, and that he “just want[s] what [he is] entitled to receiv[e].”
(Claimant’s Brief at 10.)
4
It appears that Claimant’s weekly benefit allowance and partial benefit credit combined
totaled $400. (C.R., Item No. 1, at 1.)
5
43 P.S. §§ 751-919.10.
6
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.
5
In response, the Board argues that Claimant has waived any issue related to
the Board’s conclusion that he did not qualify for the sideline activity exception
under Section 402(h) of the Law—the basis upon which the Board denied Claimant
unemployment compensation benefits—for failing to argue it in his brief, and that
Claimant has waived the issues raised in his brief for a failure to raise them before
the Board. The Board further notes that, contrary to Claimant’s arguments regarding
the shortcomings of the unemployment compensation system, that system worked
as intended in the instant matter. The Board also argues that, to the extent that
Claimant asserts that “fraudsters” have received unemployment compensation to
which they are not entitled, this does not mean that Claimant should likewise receive
benefits to which he is not entitled. (Board’s Brief at 10.)
Upon review, we reluctantly agree that Claimant has waived any issue for
appeal. Preliminarily, while Claimant argues that he is entitled to some form of
unemployment compensation benefits either under the Law or PUA, it is only
Claimant’s eligibility for unemployment compensation benefits under the Law that
is at issue before this Court. With respect to Claimant’s eligibility for those benefits,
the Board determined that Claimant’s self-employment as a realtor was his primary
source of livelihood and, thus, did not qualify for the sideline activity exception
under Section 402(h) of the Law, rendering him ineligible for benefits under that
provision. On appeal, Claimant presents no argument contesting the Board’s
conclusion in this regard. It is well settled that “[a]rguments not properly developed
in a brief will be deemed waived by this Court.” Rapid Pallet v. Unemployment
Comp. Bd. of Rev., 707 A.2d 636, 638 (Pa. Cmwlth. 1998). To the extent that
Claimant argues that issues with the unemployment compensation system have
prevented him from obtaining benefits that he is owed, he did not raise any such
6
issues before the Board, resulting in waiver. See Crabbe v. Unemployment Comp.
Bd. of Rev., 179 A.3d 1183, 1189 (Pa. Cmwlth. 2018) (holding issues not raised in
claimant’s appeal to Board are waived for purposes of appellate review). Claimant
also fails to identify any such issues with sufficient specificity or otherwise provide
legal authority in support thereof to demonstrate that he is entitled to relief.7
For the foregoing reasons, we affirm the order of the Board.
P. KEVIN BROBSON, President Judge
7
Insofar as Claimant may be entitled to receive PUA, we note the following. In its brief
to this Court, the Board explains that, while it can neither confirm nor deny Claimant’s inability
to file for PUA benefits, which are not administered by the Board, “a claimant must be ineligible
for regular [unemployment compensation benefits] in order to be eligible for PUA.”
(Board’s Brief at 10 n.4 (emphasis omitted).) As “it is possible that Claimant cannot apply while
his eligibility for the regular claim is still pending and not yet final[, t]he Board suggests that
Claimant contact the Department for assistance once his regular [unemployment compensation]
claim becomes final.” (Id.)
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua L. Irvin, :
Petitioner :
:
v. : No. 1123 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of October, 2021, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, President Judge