           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



William M. Brown,                              :
                                               :
                             Petitioner        :
                                               :
              v.                               :   No. 2248 C.D. 2013
                                               :
Unemployment Compensation                      :   Submitted: May 30, 2014
Board of Review,                               :
                                               :
                             Respondent        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                           FILED: July 31, 2014


       William Brown (Claimant), pro se, petitions for review of an Order from the
Unemployment Compensation (UC) Board of Review (Board) affirming the
Decision of the UC Referee (Referee) that found Claimant ineligible for UC
benefits pursuant to Sections 401(d)(1)1 and 402(b)2 of the UC Law (Law) and

       1
           Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1). Section 801(d)(1), in relevant part, provides “[c]ompensation shall be payable to any
employe who is or becomes unemployed, and who . . . [is] able to work and available for suitable
work. . . .” Id.

       2
          43 P.S. § 802(b). Section 402(b), in relevant part, provides, “[a]n employe shall be
ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily
                                                                               (Continued…)
Section 4001 of the 2008 Emergency Unemployment Compensation Act3 (EUCA).
The Board found Claimant was not able and available to work and voluntarily quit
his employment with Dave and Busters (Employer) without a necessitous and
compelling cause. On appeal, Claimant argues that he had a necessitous and
compelling cause for leaving work because he underwent two surgeries and
consistently updated Employer on his condition and availability for work.
Discerning no error, we affirm.


       Claimant worked as a full-time maintenance associate and busboy for
Employer from February 5, 2013 until May 27, 2013. (Referee Decision, Findings
of Fact (FOF) ¶ 3.) On June 6, 2013, Claimant filed for UC benefits. The UC
Service Center issued a Notice of Determination finding Claimant not ineligible
under Section 402(b), but ineligible under 401(d)(1) beginning with the
compensable week ending June 8, 2013. (Notice of Determination, R. Item 5.)
The UC Service Center found that Claimant took a medical leave of absence but,
because his restrictions were so great, he was unable to accept any type of work;
therefore, he was not able and available for suitable work.                           (Notice of
Determination, R. Item 5.) Claimant appealed the Notice of Determination and a
hearing was held before the Referee. Claimant testified on his own behalf and

leaving work without cause of a necessitous and compelling nature, irrespective of whether or
not such work is in ‘employment’ as defined in this act. . . .” Id.

       3
         Title IV of the Supplemental Appropriations Act of 2008, P.L. 110–252, 122 Stat. 2323,
§ 4001(d)(2), 26 U.S.C. § 3304 Note. Section 4001, in relevant part, provides: “[f]or purposes of
any agreement under this title . . . the terms and conditions of the State law which apply to claims
for regular compensation and to the payment thereof shall apply to claims for emergency
unemployment compensation and the payment thereof. . . .” Id.




                                                 2
Employer presented the testimony of its Senior Manager. After the hearing, the
Referee made the following relevant findings of fact:

             4. The claimant reported off work on May 27, 2013, informing
      the employer he needed to go to the hospital. On May 28, 2013, the
      claimant notified the employer that he had to have surgery and the
      claimant was advised by the General Manager that he would need a
      doctor’s release listing any restrictions, before he would be permitted
      to return to work.
             5. The claimant asserts he had surgery on May 28, 2013, which
      required the claimant to be off work due to medical issues. The
      claimant also asserts he later had to have a second surgery, due to his
      medical issues.
             6. The claimant did not inform the employer of his need for a
      second surgery and did not continue to contact the employer to
      provide them with updates of his medical condition.
             7. The claimant asserts it was not until August 1, 2013, before
      he was released to return to any type of work. The claimant also
      asserts he contacted the employer’s place of business, leaving a
      message at the front desk requesting a return call, to be able to inform
      the employer he was able to return to work. The claimant also asserts
      that he received no return call from the employer, and admits he did
      not go to the employer’s place of business to provide the employer
      with any type of documentation from his doctor, releasing him to
      return.
             8. The claimant did not perform work for [Employer]
      following his last day on May 27, 2013.

(FOF ¶ 4-8).


      The Referee found Claimant’s testimony credible that he suffered from a
medical condition, that he underwent surgery to remedy that medical condition,
and that he notified Employer of his medical condition to request time off work.
(Referee Decision at 2-3). The Referee, however, determined that Claimant failed
to notify Employer of his second surgery, remain in contact with Employer, or
provide Employer with an expected return date. (Referee Decision at 3.) The
                                         3
Referee found Employer’s testimony credible that Claimant notified Employer of
his ability to return to work on June 15, 2013 and that Employer requested
Claimant to provide medical documentation before he could return to work.
(Referee Decision at 3.) Because Claimant did not provide Employer with the
requested medical documentation and only left a voicemail for Employer on
August 1, 2013, the Referee concluded that Claimant did not make a reasonable
effort to preserve his employment. (Referee Decision at 3.) Accordingly, the
Referee held that Claimant failed to establish a necessitous and compelling reason
for being absent from work or that he was able and available to work for the
compensable week ending June 8, 2013. (Referee Decision at 3.) Therefore, the
Referee denied Claimant UC benefits pursuant to Sections 401(d)(1) and 402(b)
of the UC Law and Section 4001 of the EUCA . (Referee Decision at 3.)


       Claimant appealed the Referee’s Decision to the Board, which affirmed and
adopted the Referee’s Decision. Claimant now petitions this Court for review.4


       Initially, we note that the Board acknowledges that it incorrectly ruled that
Claimant was ineligible for UC benefits pursuant to Section 402(b) of the UC Law
for the week ending June 8, 2013 rather than the week ending June 22, 2013,
which was the first full week that Claimant notified Employer he could return to
work. However, the Board asserts that because Claimant’s presumption of ability
to work was rebutted under Section 401(d)(1) for the week ending June 8, 2013,


       4
         This Court’s “scope of review is limited to determining whether constitutional rights
were violated, whether the adjudication is in accordance with the law, or whether necessary
findings of fact are supported by substantial evidence.” Lee v. Unemployment Compensation
Board of Review, 33 A.3d 717, 719 n.4 (Pa. Cmwlth. 2011).

                                              4
and remained rebutted for the week ending June 15, 2013, this error does not
affect the denial of benefits because Claimant was properly denied UC benefits
under Section 402(b) for the week ending June 22, 2013.


      Before this Court, Claimant does not challenge the Board’s determination
that he was ineligible for benefits under Section 401(d)(1) of the UC Law.
Claimant focuses solely on the Board’s determination that he was ineligible for
UC benefits pursuant to Section 402(b). Because Claimant did not appeal the
Board’s determination that he was ineligible for benefits under Section 401(d)(1)
for the two weeks ending June 15, 2013, and Claimant and Employer only
disagree about whether Claimant was ineligible for benefits under Section 402(b)
for the compensable week ending June 22, 2013, the only issue we have to address
is whether Claimant was ineligible for UC benefits pursuant to Section 402(b) for
the compensable week ending June 22, 2013.


      A claimant is ineligible for UC benefits during any week in which his
unemployment is due to his voluntary termination of his employment “without
cause of a necessitous and compelling nature.” 43 P.S. § 802(b). When on
medical leave, a claimant must notify the employer of his or her medical condition,
remain available for work consistent with that medical condition, and make a good
faith effort to preserve his or her employment.       Genetin v. Unemployment
Compensation Board of Review, 451 A.2d 1353, 1356 (Pa. 1982); Cullen v.
Unemployment Compensation Board of Review, 666 A.2d 772, 773-74 (Pa.
Cmwlth. 1995). “An employee’s failure to take all necessary and reasonable steps
to preserve [his or] her employment will result in a voluntary termination of


                                        5
employment.” Westwood v. Unemployment Compensation Board of Review, 532
A.2d 1281, 1282 (Pa. Cmwlth. 1987).


      Claimant argues he made a “reasonable effort to preserve his employment”
by notifying Employer that he would be in contact after he attended a doctor’s
appointment on August 1, 2013. (Claimant Br. at 10.)      Claimant also contends
that he left several messages on August 1, 2013 with Employer, but never received
a return phone call. There is no evidence in the record, however, that supports
Claimant’s contention that he notified Employer about his doctor’s appointment on
August 1, 2013. In fact, the Referee explicitly credited Employer’s testimony that
Claimant called on or about June 15, 2013 and notified Employer that he was able
to return to work. (Referee Decision at 3.) During that telephone conversation,
Employer notified Claimant that he had to provide medical documentation before
he could return to work. (Referee Decision at 3.) Claimant, thereafter, failed to
provide Employer with the medical documentation required for him to return to
work. (Referee’s Decision at 3.)


      The Referee did credit Claimant’s testimony that he called Employer and left
a message on August 1, 2013. (Referee’s Decision at 3.) However, Claimant’s
decision to call and leave a message with Employer without more does not show
that Claimant made “a reasonable effort to preserve his employment. . . .” Malloy
v. Unemployment Compensation Board of Review, 523 A.2d 834, 836 (Pa.
Cmwlth. 1987); see also Westwood, 532 A.2d at 1282 (holding that claimant did
not make a reasonable effort to preserve her employment despite attempting to
contact her employer once without success). Claimant did not travel to Employer’s
place of business to provide the requested medical documentation. There is also
                                        6
no evidence of Claimant asking a friend or family member to drop off the medical
documentation on his behalf or Claimant attempting to mail, email, or fax the
medical documentation. Accordingly, the record supports the determination that
Claimant was ineligible for UC benefits pursuant to Section 402(b) of the UC Law
for the week ending June 22, 2013.5


       For the foregoing reasons, the Board’s Order is affirmed.6




                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge




       5
          We agree with the Board’s contention that this Court may not consider any documents
attached to Claimant’s brief that are not within the certified record. See Commonwealth v.
Geatti, 35 A.3d 798, 800 (Pa. Cmwlth. 2011) (citation omitted) (“It is well settled that an
appellate court cannot consider anything which is not part of the certified record in a case.”).
Even if this Court was able to consider the documents submitted by Claimant, they do not
support Claimant’s position that he made a good faith effort to preserve his employment.

       6
         We will affirm an Order of the Board “where the result is correct, even if the reason
given is erroneous, where the correct basis for the decision is apparent on the record.”
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965,
969 (Pa. Cmwlth. 2010) (citations omitted).

                                               7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



William M. Brown,                     :
                                      :
                       Petitioner     :
                                      :
           v.                         :   No. 2248 C.D. 2013
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :



                                    ORDER


     NOW, July 31, 2014, the Order of the Unemployment Compensation
Board of Review in the above-captioned matter is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
