             IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Edna Davis,                                    :
                             Petitioner        :
                                               :
              v.                               :    No. 339 C.D. 2017
                                               :    Submitted: September 22, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: December 11, 2017

              Edna D. Davis (Claimant), acting pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board), which
affirmed an Unemployment Compensation Referee’s (Referee) decision, denying
Claimant        unemployment            compensation          benefits        pursuant        to
Sections 401(d)(1) and 402(b) of the Unemployment Compensation Law (Law).1
We now affirm.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 801(d)(1) and 802(b). Section 401(d)(1) of the Law provides, in part, that compensation shall
be payable to any employee who is “able to work and available for suitable work.” Section 402(b)
of the Law provides, in part, that a claimant “shall be ineligible for compensation for any week”
in which the claimant’s “unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.”
              Claimant filed for unemployment compensation benefits after she
ceased employment with GGNSC (Employer), with her last day of employment
being September 8, 2016. (Certified Record (C.R.), Item No. 5.) The Erie UC
Service Center (Service Center) issued a determination finding Claimant eligible for
benefits. (Id.) Employer appealed this determination. (C.R., Item No. 6.) A Referee
conducted a hearing on December 1, 2016, at which neither party appeared. (C.R.,
Item No. 9.) As neither party attended the hearing, the substance of the hearing
involved the Referee identifying the documents made available to him, including a
document entitled “Claimant’s questionnaire,” and entering them into the record.
Following the hearing, the Referee issued a decision and order, reversing the Service
Center’s determination and finding Claimant ineligible for benefits pursuant to
Sections 401(d)(1) and 402(b) of the Law.2 (C.R., Item No. 10.)
              Claimant appealed the Referee’s decision to the Board, and the Board
affirmed. (C.R., Item Nos. 11, 12.) The Board concluded that Claimant failed to


       2
        Section 101.51 of the Unemployment Compensation Board of Review regulations, 34 Pa.
Code § 101.51, pertaining to absence of a party at a hearing before a referee, provides:
              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. The tribunal may take such other action as may be deemed appropriate.
Thus, it was within the Referee’s discretion to render a decision upon the pertinent available
records or to reschedule a hearing where, as here, both parties did not appear at a hearing. See
Clairton Mun. Auth. v. Unemployment Comp. Bd. of Review, 639 A.2d 921, 923 (Pa.
Cmwlth. 1994).
       Furthermore, we note that Claimant, in her brief, claims that she “showed up at the court
hearing to show supporting documentations to plead as of why [she is] no longer employed on the
job GGSNC[,] and on that day [she] was told [she] cannot be seen by the judge.” (Claimant’s Br.
at 8.) The record shows that the hearing began promptly at 11:00 a.m. The Referee introduced
documents and concluded the hearing at 11:01 a.m., without any party having arrived. Claimant
does not indicate when she arrived, and she did not request a remand.

                                                2
establish her ability and availability for suitable work and failed to establish cause
of a necessitous and compelling nature to quit. In so doing, the Board issued the
following findings of fact:
             1. GGNSC employed the claimant.
             2. The claimant voluntarily terminated her employment.

(C.R., Item No. 13 at 1.) With regard to Claimant’s ability and availability for
suitable work, the Board reasoned:
             When applying for benefits, the claimant provided the
             [Department of Labor and Industry] with contradictory
             information regarding her ability and availability for
             suitable work. Notably, the claimant stated that she is “not
             able to work due to [her] medical condition[.]” The Board
             concludes that in light of the claimant’s admission and
             contradictory information, the presumption of ability and
             availability for work has been rebutted. The claimant
             failed to present competent evidence that she is able and
             available for suitable work. Therefore, the Board
             concludes the claimant is ineligible for benefits under
             Section 401(d)(1) of the Law.

(Id. at 2.) With regard to Claimant’s failure to establish that she resigned from her
work due to cause of a necessitous and compelling nature, the Board reasoned:
             When applying for benefits, the claimant admitted to the
             [Department of Labor and Industry] that she took a leave
             of absence. Under the Law, a leave of absence constitutes
             a voluntary termination of one’s employment. The
             claimant failed to present competent evidence establishing
             a necessitous and compelling reason for voluntarily
             terminating her employment. Therefore, the Board
             concludes the claimant is ineligible for benefits under
             Section 402(b) of the Law.

(Id.)




                                          3
              On appeal to this Court,3 Claimant appears to argue that the Board erred
as a matter of law in determining that (1) Claimant voluntarily quit her employment
without a necessitous and compelling reason, and (2) Claimant was not able and
available for suitable work. Specifically, Claimant argues that she is unemployed
due to a lack of work stemming from a medical condition, and she was able and
available for suitable work commensurate with her medical restrictions.
              We will first address Claimant’s argument that the Board erred in
determining Claimant voluntarily quit her employment without necessitous and
compelling cause. Whether a claimant had cause of a necessitous and compelling
nature for leaving work is a question of law subject to this Court’s review. Wasko v.
Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A
claimant who voluntarily quits her employment bears the burden of proving that
necessitous and compelling reasons motivated that decision.                     Fitzgerald v.
Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998),
appeal denied, 794 A.2d 364 (Pa. 1999). In order for a claimant to establish cause
of a necessitous and compelling nature, she must show: (1) the existence of
circumstances that created real and substantial pressure to leave employment; (2)
that such circumstances would compel a reasonable person to leave employment; (3)
that she acted with common sense; and (4) that she made a reasonable attempt to
continue her employment. Comitalo v. Unemployment Comp. Bd. of Review, 737
A.2d 342, 344 (Pa. Cmwlth. 1999).



       3
         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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.

                                               4
                Here, Claimant asserted in her questionnaire that she was unable to
perform her job function due to a medical condition and that she would only be able
to work light duty. (C.R., Item No. 2.) There is no evidence in the record, however,
to establish that Claimant made a reasonable attempt to preserve her employment or
that she met the other requirement for a necessitous and compelling cause to quit.
See Comitalo, 737 A.2d at 344. In fact, we note that Employer indicated on
“Employer’s Notice of Application/Request for Separation and Wage Information”
form that Claimant was a no call/no show; she . . . abandoned her job.” (C.R., Item
No. 3.)4 Accordingly, the Board did not err in concluding that Claimant is ineligible
for benefits under Section 402(b) of the Law, as she failed to establish that she
voluntarily quit her employment with cause of a necessitous and compelling nature.
                Because we conclude that the Board did not err in denying Claimant
benefits based on Section 402(b) of the Law, we need not consider whether the Board
erred in determining that Claimant was ineligible for benefits under
Section 401(d)(1) of the Law.5



       4
          We note that Claimant’s brief contains documents regarding her medical condition and
treatment that are not part of the certified record created during the hearing. Documents attached
to a brief as an appendix or reproduced record may not be considered by an appellate court when
they are not part of the certified record. B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa.
Cmwlth. 2012). Accordingly, these documents will not factor into this Court’s analysis.
       5
           This Court previously held:
              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



                                                  5
              Accordingly, the order of the Board is affirmed.




                                    P. KEVIN BROBSON, Judge




       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, 243 (Pa. Cmwlth. 2011) (citations
omitted). Here, as noted by the Board, Claimant indicated in her questionnaire that she is “not
able to work due to [her] medical condition,” thus rebutting the presumption of her ability and
availability for work. (See C.R., Item No. 2.) The burden then shifted to Claimant to prove that
she is able to do some type of work and that there is a reasonable opportunity for securing such
work. There is no evidence of record regarding whether she has such ability and opportunity. For
that reason, were we to consider whether Claimant was “able to work and available for suitable
work” under Section 401(d)(1) of the Law, we would conclude that the Board did not err in
concluding that Claimant failed to meet her burden and, therefore, determining Claimant was
ineligible for benefits under that section.

                                               6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edna Davis,                            :
                        Petitioner     :
                                       :
              v.                       :   No. 339 C.D. 2017
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                     ORDER


              AND NOW, this 11th day of December, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
