               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra L. Joyce,                                :
                      Petitioner                :
                                                :
               v.                               :
                                                :
Unemployment Compensation                       :
Board of Review,                                :   No. 2559 C.D. 2015
                 Respondent                     :   Submitted: August 5, 2016


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                   FILED: December 21, 2016

               Petitioner Sandra L. Joyce (Claimant) petitions for review of an order
of the Unemployment Compensation (UC) Board of Review (Board), affirming a
decision of an Unemployment Compensation Referee (Referee) that denied her
claim for UC benefits pursuant to Section 401(d)(1) of the UC Law (Law).1 On
appeal, Claimant argues the Board erred in its determination that Claimant was not
able and available for suitable work. For the reasons set forth below, we affirm the
Board’s order.
               Claimant filed for unemployment compensation benefits on June 21,
2015, after taking a three-month leave of absence from her employment as a hair
stylist for Creative Hairdressers, Inc. (Employer). The purpose of Claimant’s leave

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1), which provides in relevant part that a claimant must be “able to work and available for
suitable work…” to be eligible for UC benefits.
of absence was to care for her elderly mother, who lived in California. (Hearing
Transcript (Hr’g Tr.) at 5, Record (R.) Item 11.) Claimant intended to return to her
job once her leave of absence ended. (Hr’g Tr. at 6.) In her initial telephone
interview, Claimant was asked to explain how she was able and available to work.
(Claimant’s Oral Interview at 1, R. Item 3.) Claimant responded, “I need to be
with my mother all of the time for now. I hope to get her placed in a better
residence and then get her surgery done. After she is moved and has her surgery, I
hope to be able and available for work again.” Id. (emphasis added).
              The Erie UC Service Center (Service Center) issued a determination
that Claimant had a necessitous and compelling reason for taking a leave of
absence and was not ineligible for benefits under Section 402(b) of the Law. 2
(Notice of Determination at 1, R. Item 6.) The Service Center further determined
that Claimant was able to work but not available for suitable work and, therefore,
ineligible for benefits under Section 401(d)(1) of the Law. Id. The Service Center
ruled that where Claimant was both eligible and ineligible for benefits, the
disqualifying Section took precedence over the eligibility Section and Claimant
was ineligible for benefits.         Id.    Claimant appealed the Service Center’s
determination. (Petition for Appeal, R. Item 7.)
              A telephonic hearing was held before a Referee on August 28, 2015.
Claimant testified on her own behalf, and Employer presented the testimony of its
manager. Claimant testified as follows: She began working for Employer in April
2003, with her last day of work either June 16, 2015 or June 20, 2015. (Hr’g Tr. at
5.) Claimant’s mother needed help with medical appointments and shopping, and

       2
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2987, as amended, 43 P.S. §
802(b), which provides in relevant part that a claimant is ineligible for compensation for any
week in which “unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature….”

                                               2
was going to have surgery on her eyes. Id. Claimant was the only person available
to take care of her mother, and she started looking for another job “a couple of
weeks” after arriving in California. Id. at 6. Since her mother did not need twenty-
four hour care, Claimant was interviewing people who could assist her mother
once Claimant returned to Pennsylvania. Id. at 7. Claimant had not returned to
Pennsylvania as of the date of the hearing because along with helping her mother
move, her mother also had other doctors appointments scheduled. Id. Claimant
answered in the affirmative when asked if she believed herself able to find work on
a temporary basis while helping with this move, interviewing caregivers, and
preparing to return to Pennsylvania in September. Id. at 8.
              Following the hearing, the Referee affirmed the determination of the
Service Center. (Referee Decision at 1, R. Item 12.) The Referee stated she “[did]
not find [C]laimant credible that she was able and available for suitable work while
in California,” and further found that Claimant was not realistically attached to the
labor market while there. Id. at 2. Claimant’s stay in California was temporary
and, during those three months, according to the Referee, “she provided very time
consuming services for her mother … [and] could not realistically search for,
interview for, and obtain employment while fulfilling her other obligations.” Id.
The Referee therefore did not believe it reasonable to conclude “[C]laimant would
find employment on such a temporary basis and with such limited and sporadic
availability.” Id.
              Claimant appealed the Referee’s decision to the Board, which
affirmed. On appeal,3 Claimant argues the Board erred in affirming the Referee’s

       3
         Our review of the Board’s Order “is limited to determining whether the necessary
findings of fact were supported by substantial evidence, whether errors of law were committed,
or whether constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review,
87 A.3d 1006 (Pa. Cmwlth. 2014).

                                               3
finding that she was not able and available for suitable work because of the
activities she provided for her mother.


                                   DISCUSSION
             An    unemployed      worker        who   registers   for   unemployment
compensation is presumed to be able and available for work. Penn Hills Sch. Dist.
v. Unemployment Comp. Bd. of Review, 437 A.2d 1213, 1216 (Pa. 1981). “This
presumption is rebuttable by evidence that a claimant’s physical condition limits
the type of work [s]he is available to accept or that [s]he has voluntarily placed
other restrictions on the type of job [s]he is willing to accept.”           Rhode v.
Unemployment Comp. Bd. of Review, 28 A.3d 237, 243 (Pa. Cmwlth. 2011). If the
presumption is rebutted, “the burden shifts to the claimant to produce evidence that
[s]he is able to do some type of work and that there is a reasonable opportunity for
securing such work.” Id. In short, the claimant must show that she “is ready,
willing, and able to accept some suitable work.” Id.
             In the case sub judice, Claimant indicated in her Internet Initial
Claims filed on June 21, 2015 she was able and available for work and would be
seeking temporary employment in California. (Claimant’s Internet Initial Claims
at 4, R. Item 2.) In her subsequent telephone interview which took place on June
29, 2015, Claimant stated she hoped “to be able and available for work again.”
(Claimant’s Oral Interview at 1.) With this second statement, Claimant rebutted
the presumption that she was able and available for suitable work at that time.
Accordingly, Claimant had to produce sufficient evidence she was thereafter ready,
willing, and able to accept suitable work.
             On August 28, 2015, Claimant testified during the telephonic hearing
before the Referee that her initial statement was prior to “assess[ing] the situation”

                                             4
with her mother. (Hr’g. Tr. at 6.) After she “watched her for a little bit,” Claimant
understood that her mother did “not need 24 hour care…” Id. at 5. Claimant
further testified that she was “available and willing to and able to work,” id. at 4,
that she began to look for work in California “a couple of weeks after [she] arrived
[to help her mother],” id. at 6, and that the kind of work she believed she would be
able to find in California on a temporary basis was in “customer service,
administrative work, [and as] a hair stylist.” Id. at 8.
             The Board adopted the Referee’s findings of fact which are
“conclusive on appeal so long as the record, taken as a whole, contains substantial
evidence to support those findings.”        Treon v. Unemployment Comp. Bd. of
Review, 453 A.2d 960, 962 (Pa. 1982). Substantial evidence is defined as “such
relevant evidence as a reasonable mind would accept as adequate to support a
conclusion.” Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181, 185
(Pa. Cmwlth. 2015). This Court is bound to examine the testimony in the light
most favorable to the party in whose favor the Board has found, giving that party
the benefit of all inferences that can logically and reasonably be drawn from the
testimony to determine if substantial evidence exists for the Board’s findings. Id.
Even where there is contrary evidence of record, the Board’s findings of fact are
binding upon the Court where supported by substantial evidence. Id. Here, the
Board did not find credible Claimant’s testimony that she was able and available
for suitable work. The Board noted the temporary nature of Claimant’s stay in
California and the time-consuming activities Claimant performed for her mother.
(Referee Decision at 2.)
             The only evidence presented by Claimant to support her ability and
availability to find suitable work was her testimony. She testified she was able and
available to work, that she had been looking for work, and that her mother did not

                                             5
need twenty-four hour, seven-day-a-week care. (Hr’g Tr. at 6.) Claimant also
provided testimony that she was interviewing people for a part-time caretaker
position, taking her mother to medical appointments, and had helped her mother
look for and move to a new residence. Id. at 7. The Referee, and Board in its
affirmation of the Referee’s decision, did not find credible Claimant’s testimony
that she would be able to search for, interview for, and obtain temporary
employment while fulfilling these obligations.
             The Board specifically argues in its brief that Claimant “is unable and
unavailable for suitable work where the time-consuming services she provided for
her mother, coupled with the temporary nature of her stay in California, caused her
to lack a genuine and realistic attachment to the labor market” with no supporting
factual basis. (Respondent’s Br. at 1.)   However, in Myers v. Unemployment
Compensation Board of Review, 330 A.2d 886, 888 (Pa. Cmwlth. 1975), we noted
that a claimant is not required to be available for full-time or permanent
employment. “So long as the claimant is ready, willing and able to accept some
substantial and suitable work [s]he has met the statutory requirements…. It is
sufficient if [s]he is able to do some type of work, and there is a reasonable
opportunity for securing such work in the vicinity in which [s]he lives.” Id.,
quoting Bliley Electric Co. v. Unemployment Comp. Bd. of Review, 45 A.2d 898,
905 (Pa. Super. 1946). Therefore, taken alone, the temporary nature of Claimant’s
stay in California does not bar a finding that she is ready, willing, and able to
accept substantial and suitable work.
             Someone who provides active care of a family member can be
“realistically attached to the labor market,” as this is a quite common experience
for many of our fellow citizens, who seek and find employment while continuing



                                           6
to provide needed, essential and “time consuming services” for their families. This
is the state of modern life for countless people.
              Nevertheless, in examining the testimony regarding the performance
of Claimant’s duties for her mother in the light most favorable to Employer, we
find substantial evidence exists to support that Claimant was not able or available
to work on June 21, 2015, when Claimant applied for benefits, or on June 29,
2015, when she stated she hoped to be able and available to work soon. The Board
concluded that Claimant was not credible and she was able and available for
suitable work.     Credibility determinations regarding witnesses are exclusively
within the province of the Board as the fact finder in unemployment cases and this
Court will not disturb the Board’s credibility determinations on appeal. Melomed
v. Unemployment Comp. Bd. of Review, 972 A.2d 593, 595 (Pa. Cmwlth. 2009). 4
              For these reasons, the Order of the Board is affirmed.




                                           ___________________________
                                           JOSEPH M. COSGROVE, Judge


Judge Covey concurs in the result only.




       4
         Nothing in this opinion should be construed as prohibiting Claimant from applying for
benefits for those weeks in which she was able and available for suitable work and actively
seeking such work.

                                               7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra L. Joyce,                        :
                        Petitioner      :
                                        :
                   v.                   :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 2559 C.D. 2015
                    Respondent          :


                                     ORDER


            AND NOW, this 21st day of December, 2016, the Order of the
Unemployment Compensation Board of Review is affirmed.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge
