                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy L. Irvin,                              :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Unemployment Compensation                      :
Board of Review,                               :   No. 284 C.D. 2018
                    Respondent                 :   Submitted: November 2, 2018


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: January 4, 2019

              Timothy L. Irvin (Claimant), pro se, petitions this Court for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) December 21,
2017 order affirming the Referee’s decision denying Claimant UC benefits under
Section 401(d)(1) of the UC Law1 (Law).2 Essentially, the issue before this Court is
whether the UCBR erred by concluding that Claimant was ineligible for UC benefits
under Section 401(d)(1) of the Law.3 After review, we affirm.
              Claimant was employed part-time by K-7 Parking Company (Employer)
as a valet parking attendant until July 17, 2017, when he took an approved leave of

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1) (referring to ability and availability for suitable work).
       2
         The Referee deemed Claimant ineligible for UC benefits under Section 401(d)(1) of the
Law, but eligible for UC benefits under Section 402(b) of the Law, 43 P.S. § 802(b) (referring to
voluntarily leaving work).
       3
         Claimant’s Statement of the Questions Involved listed two issues: (1) whether Employer
attempted to find Claimant light-duty work; and (2) whether the UCBR’s decision was justified.
See Claimant Br. at 6. Because both issues are subsumed in an analysis of the second, the Court has
combined the issues herein.
absence for hip replacement surgery. On or about July 25, 2017, Claimant applied
for UC benefits, submitting the questionnaire for a “Voluntarily Quit for Health
Reasons.” Certified Record (C.R.) Item 2 (Claimant Questionnaire) at 1. Claimant
represented therein that he was able and available to work. See id. at 1-2. On August
2, 2017, the Altoona UC Service Center determined that Claimant was eligible for
UC benefits under Sections 402(b) and 401(d)(1) of the Law. Employer appealed,
and a Referee hearing was held on September 7, 2017, which neither Employer nor
Claimant attended, despite having received notice thereof. On September 20, 2017,
the Referee affirmed the UC Service Center’s determination relative to Claimant’s
employment separation under Section 402(b) of the Law because Claimant was on an
approved leave of absence, but denied him UC benefits under Section 401(d)(1) of
the Law because the record lacked evidence that Claimant was available for work.
Claimant appealed to the UCBR. On December 21, 2017, the UCBR affirmed the
Referee’s decision. Claimant appealed to this Court.4
              As a procedural matter, Claimant asserts that since Employer appealed,
but failed to attend the hearing, its appeal should be dismissed or, in the alternative,
another hearing should be scheduled for the parties to present evidence. See Claimant
Br. at 9.
              Section 101.51 of the UCBR’s Regulations directs, in pertinent part: “If
a party notified of the date, hour and place of a hearing fails to attend a hearing
without proper cause, the hearing may be held in his absence. In the absence of all
parties, the decision may be based upon the pertinent available records.” 34 Pa. Code


       4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).



                                                 2
§ 101.51. This Court has reasoned that Section 101.51 of the UCBR’s Regulations,
read in conjunction with Section 502 of the Law (relating to referee decisions),
“reveals . . . the Legislature’s intention that referees decide [UC] cases on their
merits, even in the absence of a party or indeed both parties.”               Gadsden v.
Unemployment Comp. Bd. of Review, 479 A.2d 74, 76 (Pa. Cmwlth. 1984) (quoting
Miller v. Unemployment Comp. Bd. of Review, 476 A.2d 364, 366-67 (Pa. Cmwlth.
1984)). Accordingly, in the absence of the parties, the Referee was authorized to and
did properly proceed with the hearing and issue a decision on the available records.
             With respect to the merits of this case, Claimant argues that the UCBR
erred by concluding that Claimant was ineligible for UC benefits under Section
401(d)(1) of the Law. Specifically, Claimant contends that he was available for light-
duty work, but Employer failed to offer it and, thus, he “should have continued to
receive [] [UC] benefits until [he] was fully recovered.” Claimant Br. at 6.
             This Court has explained:

             Section 401(d)(1) of the Law provides, in part, that
             ‘[c]ompensation shall be payable to any employe[] who is
             or becomes unemployed and who . . . [i]s able to work and
             available for suitable work.’ The burden of proving
             availability for suitable work is on the claimant. An
             unemployed worker who registers for unemployment is
             presumed to be able and available for work. This
             presumption is rebuttable by evidence that a claimant’s
             physical condition limits the type of work he is available
             to accept or that he has voluntarily placed other restrictions
             on the type of job he is willing to accept. If the
             presumption of availability is rebutted, the burden shifts
             to the claimant to produce evidence that he is able to do
             some type of work and that there is a reasonable
             opportunity for securing such work.

Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237, 242-43 (Pa. Cmwlth.
2011) (citations omitted; emphasis added).       “[T]he determination of whether a
claimant is available for work as required by Section 401(d)[(1)] of the Law is a

                                           3
question of fact for the [UCBR.]” Craig v. Unemployment Comp. Bd. of Review, 442
A.2d 400, 401 (Pa. Cmwlth. 1982) (quoting Goodwin v. Unemployment Comp. Bd. of
Review, 378 A.2d 1308, 1310 (Pa. Cmwlth. 1977)). Further, “the [UCBR] is the
ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in
evidence, witness credibility, and weight accorded the evidence. . . . Where
substantial evidence supports the [UCBR’s] findings, they are conclusive on appeal.”
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted).
              Here, since neither party appeared at the hearing or offered evidence, the
Referee based her factual findings and conclusions on the parties’ documents. The
Referee declared that the documents submitted by the parties and admitted into the
record confirm that Claimant was off work after July 17, 2017 for hip replacement
surgery and recuperation. Relative to Section 401(d)(1) of the Law, the Referee
relied upon Claimant’s Questionnaire, in which Claimant represented that he was able
and available for work, but listed his work limitations as: “[N]o lifting, must sit on
stable chairs, use a walker or cane for walking[.]”5 C.R. Item 2 at 1. Further, in
response to the question, “Does the doctor have you off work completely?” Claimant
replied: “Yes[,] and off everything else too.”             Id.   Employer’s Appeal Petition
(Employer’s Petition) supports Claimant’s representations. Therein, Employer stated:
“Claimant had surgery and is not released to work at any capacity. Claimant has not
informed [Employer] of any return date or work release status. Claimant is a Valet
Parking Attendant and is not released to perform his job.” C.R. Item 5 (Employer’s

       5
         This Court has ruled that a claimant’s admissions in submissions such as the claimant
questionnaire “constitute party admissions that are admissible as an exception to the hearsay rule.”
Havrilchak v. Unemployment Comp. Bd. of Review, 133 A.3d 800, 804 n.3 (Pa. Cmwlth. 2015).
“[A]dmissions constitute independent evidence of themselves and are therefore capable of
independently providing competent evidence to support the findings of the [UCBR].” Id. (quoting
Unemployment Comp. Bd. of Review v. Houp, 340 A.2d 588, 591 (Pa. Cmwlth. 1975)).


                                                 4
Petition) at 3. Based upon those documents, the Referee concluded that the only
record evidence rebutted the presumption that Claimant was able and available for
work, and Claimant did not prove otherwise. See C.R. Item 9 (Referee’s Dec.).
              In Claimant’s Appeal Petition (Claimant’s Petition), Claimant stated for
the first time:

              The reason for this appeal is to clarify the facts[] that I []
              was able and available for work, not the work that I was
              previously performing. I was told by my supervisor that
              there was no light[-]duty work available, and I have yet to
              be informed of any work. My physician, Dr. Levine told
              me that I was able to do light[-]duty work after my left hip
              replacement surgery.
              I did not attend the appeal hearing due to confusion with
              appointment dates, related to various doctors’ appointments
              and rehabilitation scheduling. If any other information is
              required[,] I will be glad to submit it.

C.R. Item 10 (Claimant’s Petition) at 6.6




       6
         In Claimant’s brief to this Court, he reiterated that Employer was aware he was released to
light-duty work, but informed him “that there was not any other work available besides . . . parking
cars[,] which involved a lot [of] bending and getting in and out of cars.” Claimant Br. at 6.
Claimant also represented in his brief that he did not attend the hearing “due to the pain medicine
[he] was prescribed[,] [he] confused the dates and thought the hearing was on September 20,
2017[.]” Claimant Br. at 7. However, the law is well-settled that
              the [UCBR] may not consider evidence that was not presented to the
              referee in rendering its decision. See [Section 101.106 of the UCBR’s
              Regulations,] 34 Pa. Code § 101.106; [see also] Lock Haven Univ[.]
              of the P[a.] State Sys[.] of Higher Educ[.] v. Unemployment Comp[.]
              B[d.] of Review, . . . 559 A.2d 1015, 1018 ([Pa. Cmwlth.] 1989).
              Similarly, because mere allegations are no substitute for record
              evidence, this Court cannot consider the averments of fact in
              Claimant’s brief when determining whether the [UCBR] erred in
              issuing its findings.
Hollingsworth v. Unemployment Comp. Bd. of Review, 189 A.3d 1109, 1113 (Pa. Cmwlth. 2018).


                                                 5
            On appeal, the UCBR made the following findings of fact:

            1. [Employer] employed [Claimant] through July 14, 2017.
            2. After July 14, 2017, [Claimant] was on an approved
            leave of absence for hip replacement surgery.
            3. On July 17, 2017, [Claimant] underwent surgery.
            4. [Claimant] did not attend the September 7, 2017, hearing
            because he confused the date with that of a medical
            appointment.

C.R. Item 11 (UCBR Dec.) at 1. The UCBR concluded:

            Because      [Claimant’s]     confusion,     rather    than
            misinformation, resulted in his nonappearance at the
            [R]eferee’s hearing, he has not established proper cause for
            his nonappearance. Neither party appeared at the hearing,
            so the [UCBR] is constrained to consider the only
            competent evidence in the record - the parties’ admissions
            and hearsay evidence corroborated by those admissions.
            ....
            Although no competent evidence rebuts the presumption
            that [Claimant] is available for work, his hip replacement
            surgery is so significant that it rebuts the presumption of
            ability to work. The record contains no competent evidence
            that [Claimant] was able to work, so benefits must be
            denied under Section 401(d)(l) of the Law.
            Because Section 401(d)(l) of the Law is a weekly test, if
            [Claimant] became able and available for substantial and
            suitable work in his labor market after the weeks at issue
            here, [he] should notify the Department [of Labor and
            Industry], rather than the [UCBR].

UCBR Dec. at 2.
            This Court discerns no error in the UCBR’s conclusion. First, Claimant
did not request a remand or rehearing when he appealed to the UCBR. Even if he
had, there was no “proper cause” for his absence. 34 Pa. Code § 101.51. “[T]his
Court has repeatedly held that a party’s own negligence is not sufficient good cause

                                         6
as a matter of law for failing to appear at a Referee’s hearing.” Eat’N Park Hosp.
Grp., Inc. v. Unemployment Comp. Bd. of Review, 970 A.2d 492, 494-95 (Pa.
Cmwlth. 2008) (quotation marks omitted); see also Savage v. Unemployment Comp.
Bd. of Review, 491 A.2d 947, 950 (Pa. Cmwlth. 1985) (“[A] claimant’s own
negligence [by misreading a hearing date] is insufficient ‘proper cause,’ as a matter of
law, to justify his failure to appear at a referee’s hearing and warrant a new
hearing.”). Accordingly, in the absence of proper cause for Claimant’s failure to
attend the Referee hearing, the UCBR properly decided the case “based upon the
pertinent available records.” 34 Pa. Code § 101.51.
             Second, Employer’s and Claimant’s documentation “evidence that
[C]laimant’s physical condition limit[ed] the type of work he [was] available to
accept[,]” and rebutted the presumption that Claimant was able and available for
work. Rohde, 28 A.3d at 243. Thus, “the burden shift[ed] to [C]laimant to produce
evidence that he [was] able to do some type of work and that there is a reasonable
opportunity for securing such work.” Id. However, there is no record evidence to
that effect. Accordingly, the UCBR properly determined Claimant was not able and
available for work and, thus, was ineligible for benefits under Section 401(d)(1) of
the Law.
             For the above reasons, the UCBR’s order is affirmed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy L. Irvin,                       :
                         Petitioner     :
                                        :
                    v.                  :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 284 C.D. 2018
                    Respondent          :


                                      ORDER

            AND NOW, this 4th day of January, 2019, the Unemployment
Compensation Board of Review’s December 21, 2017 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
