          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terri L. Macauley,             :
                               :
                    Petitioner :
                               :
                 v.            : No. 858 C.D. 2017
                               : Submitted: November 3, 2017
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: February 20, 2018



             Terri L. Macauley (Claimant) petitions pro se for review of the May
15, 2017 order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s determination and held that Claimant was ineligible for benefits
under Section 402(h) of the Unemployment Compensation Law (Law).1 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) provides that:

             An employe shall be ineligible for compensation for any week—

                                      *   *   *

             (h) In which he is engaged in self-employment: Provided, however,
             That an employe who is able and available for full-time work shall
               On January 15, 2017, Claimant applied for unemployment
compensation benefits identifying Goodwill Keystone Area as her separating
employer and also noting that she was engaged in self-employment. The local
service center determined that Claimant was not ineligible for benefits under Section
402(h) because her self-employment was a sideline business.2 The local service
center determined, based on Claimant’s 2016 1040, Schedule C tax form, that the
prorated weekly amount to be deducted from Claimant’s benefits as the result of her
sideline business was $71.54.
               Claimant appealed the determination, asserting that the prorated
deductible should have been calculated from her net profit (Schedule C, Line 31)
and not her gross income (Schedule C, Line 7). In her appeal petition, Claimant
stated that a referee, in a decision dated March 16, 2016, previously determined that
her self-employment was a sideline business and that she was not ineligible for

               be deemed not 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
               this act 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 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 department.

       2
         Under the language of Section 402(h), this Court has recognized that a claimant may not
be disqualified from receiving unemployment compensation benefits for self-employment if the
following conditions are satisfied: (1) the self-employment began prior to the termination; (2) the
self-employment continued without substantial change after termination; (3) the employee
remained available for full-time employment; and (4) the self-employment was not the primary
source of the employee’s livelihood. FSI Trading Co. v. Unemployment Compensation Board of
Review, 627 A.2d 270, 272 (Pa. Cmwlth. 1993).


                                                2
unemployment compensation benefits. Claimant asserted that the referee calculated
her prorated deductible based on her 2015 1040 Schedule C, line 31. As a result,
she argued that the service center erred in its calculation and the weekly prorated
deductible amount should have been $34.25 per week, not $71.54 per week.
               Claimant received a Notice of Hearing, dated March 7, 2017, informing
her of the appeal hearing’s scheduled date and time. The notice also stated that the
specific issue to be considered in the appeal was whether Claimant was engaged in
self-employment.
               A referee held a hearing on March 21, 2017. Claimant did not appear
at the hearing.3 The referee made two findings of fact: 1) Claimant owns a business,
Unique Selections, and 2) Claimant applied for unemployment compensation
benefits on January 15, 2017. The referee determined that Claimant was self-
employed and failed to offer evidence that she qualifies for the sideline business
exception under Section 402(h) and, therefore, she was ineligible for unemployment
compensation benefits. Claimant appealed to the Board.
               In her appeal petition, she stated:

               I was unable to attend my 3-21-17 hearing and I sincerely
               apologize. However, my appeal was for a clarification of
               [the] weekly amount I was receiving and as a result my
               benefits were revoked. I was approved for benefits on 3-
               16-2016 at a hearing so I am confused.

Record Item 10. The Board affirmed the decision of the referee, adopting and
incorporating the referee’s findings of facts and conclusions of law.



       3
         The Board’s regulations permit a hearing to be held if a party, duly notified of the date,
hour, and place of the hearing, fails to attend without proper cause. 34 Pa. Code §101.51.


                                                3
               On appeal to this Court,4 Claimant first argues that the Board should
not have considered the issue of her eligibility, but should have exclusively focused
on the issue regarding how the prorated deductible was calculated. We disagree.
               When an appeal is taken from a determination of the local service
center, the referee or Board is limited to consideration of “the issues expressly ruled
upon” by the local service center, unless the parties agree otherwise. 34 Pa. Code
§101.87; Bilsing v. Unemployment Compensation Board of Review, 382 A.2d 1279,
1280-81 (Pa. Cmwlth. 1978). Moreover, this Court has also held that when the
Notice of Hearing provided to the claimant states the specific issue to be considered
at the referee’s hearing, the claimant has been apprised of the issue and is not unfairly
surprised. See Simmons v. Unemployment Compensation Board of Review, 565 A.2d
829, 831-32 (Pa. Cmwlth. 1989) (holding that where the Notice of Hearing indicated
that the specific issue to be considered was whether the claimant’s unemployment
was the result of willful misconduct, the claimant was duly informed of the defense
prior to the hearing and was not unfairly surprised).
               Although Claimant intended to appeal only the prorated deductible
amount, the local service center determined her eligibility under Section 402(h) and
made findings to that effect. Therefore, the Board did not err in analyzing her
eligibility under Section 402(h).
               Claimant next argues that the Board erred in determining that she was
ineligible under Section 402(h) because her business qualified under the sideline
business exemption. The claimant bears the burden of showing that her self-

       4
        Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law and whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843-44 (Pa.
Cmwlth. 1987).
                                                4
employment falls under the sideline business exception pursuant to Section 402(h).
O’Hara v. Unemployment Compensation Board of Review, 648 A.2d 1311, 1313
(Pa. Cmwlth. 1994).
               Here, Claimant acknowledged in her appeal to the Board that she
missed the referee’s hearing but did not assert that she had proper cause for her
absence.5 Claimant also failed to request another opportunity to offer evidence.6
Consequently, Claimant did not introduce any evidence or provide any testimony
regarding whether she satisfied the four-part test that her business was non-
disqualifying. Though Claimant relies heavily on a previous decision by a referee,
which determined that her business was a non-disqualifying sideline business, that
decision is not a part of the record. More importantly, the two decisions address
different claim weeks. It is well-settled that a decision as to eligibility in one claim
period is not conclusive as to eligibility in a separate and distinct claim period. High
v. Unemployment Compensation Board of Review, 479 A.2d 967, 968-69 (Pa. 1984).
Based on the record, Claimant failed to sustain her burden and the Board did not err
in determining that she was ineligible for unemployment compensation benefits
under Section 402(h).
               Accordingly, we affirm the Board’s order.




       5
         For the first time, to this Court, Claimant asserts that her absence at the referee’s hearing
was the result of her daughter’s school delay, which caused her to be unable to attend the hearing.
However, as Claimant failed to raise this issue in her appeal to the Board as required by Rule
1551(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1551(a), it is waived.

       6
         The Board’s regulations provide that it may grant a request for reconsideration and
rehearing where there is good cause. 34 Pa. Code §101.111.
                                                  5
MICHAEL H. WOJCIK, Judge




 6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Terri L. Macauley,             :
                               :
                    Petitioner :
                               :
                 v.            : No. 858 C.D. 2017
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                               ORDER


            AND NOW, this 20th day of February, 2018, the order of the
Unemployment Compensation Board of Review, dated May 15, 2017, is
AFFIRMED.




                                 __________________________________
                                 MICHAEL H. WOJCIK, Judge
