         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chandra B. Chiado,                    :
                 Petitioner           :
                                      :
            v.                        : No. 1786 C.D. 2016
                                      : Submitted: April 21, 2017
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: May 24, 2017


            Chandra B. Chiado (Claimant) petitions this Court for review of the
Unemployment Compensation Board of Review’s (Board) decision affirming the
Referee’s determination that Claimant did not provide a “proper cause” for her
nonappearance at the initial hearing on the merits to determine her eligibility for
benefits. For the following reasons, we affirm.


                                        I.
            Claimant was employed as a Supervisor at Addiction Specialists
(Employer). After she fractured her hip on March 13, 2016, Claimant left her
employment because her treating physicians advised her not to return to work. She
also claimed an additional reason she left work was anxiety brought on by a
Federal Bureau of Investigation (FBI) investigation into Medicare fraud and
unlawfully dispensing Suboxone, a drug used to treat addicts of heroin and other
opiates.


               Claimant applied for unemployment compensation (UC) benefits but
her application was denied by the Service Center. In its determination, the Service
Center found that:

               In situations where the Claimant voluntarily quits due to
               health problems, the burden is on the Claimant to show
               that she informed Employer of health limitations. It is
               then the Employer’s responsibility to provide suitable
               work within the Claimant’s work limitations. In this
               case, the Claimant’s restrictions were so great that she
               was unable to accept any type of work. As such there
               was no work that Employer could offer the Claimant.
               The Claimant has sustained her burden of proof and
               benefits must be allowed under Section 402(b).

               However, the Claimant must be able and available for
               suitable work in order to qualify for UC benefits. In this
               case, the Claimant’s restrictions are so great that she was
               unable to accept any type of work. As such benefits must
               be denied under Section 401(d) of the Law.[1]

               Situations where a Claimant is ruled both eligible and
               ineligible for benefits under different Sections of the
               Law, the disqualifying Section takes precedence over the
               eligible Section. As such Claimant is ineligible for
               benefits.[2]
      1
        Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).

      2
          (Record (R.) Item No. 4, Notice of Determination, dated 5/17/2016 (Ineligible)).



                                                2
                Claimant appealed and on June 2, 2016, she received a Notice of
Hearing informing her that a hearing had been scheduled for June 13, 2016, with a
Referee. The Notice read in part:

                If you cannot attend the hearing for any reason, you may
                request a continuance (postponement) of the hearing.
                You should do this as soon as possible. The Referee will
                grant this only for “proper cause” and upon terms that
                he/she deems proper. If a continuance is granted, a
                rescheduling will follow. Requests for a continuance
                must be made in writing.[3]


                On June 6, 2012, Claimant was admitted to a hospital to receive
alcohol detoxification treatments. Because she believed that she could not attend
the hearing on the date scheduled, on June 10, 2016, Claimant had a note faxed to
the Referee which read:

                Request for continuance of hearing for Monday June 13,
                2016 due to medical reasons. Currently in hospital.
                Thank you.[4]


Claimant made no attempt to contact the Referee to confirm that her continuance
had been granted or to request another continuance.




      3
        (R. Item No. 7, Notice of Hearing, Including Returned Employer Copy and Report of
Telephone Calls on Hearings Regarding Employer Address) (emphasis added).

      4
          Id.




                                           3
                On June 13, 2016, at 10:36 a.m., the Referee attempted to contact
Claimant by phone to inform her that someone from the hospital would have to
verify her hospitalization.         Unfortunately, because Claimant’s mother did not
recognize the Referee’s telephone number when he called, she did not answer the
phone and the call went to voicemail. Again, unfortunately, Claimant’s mother did
not forward the message to Claimant.


                Because neither the Employer nor Claimant appeared at the scheduled
time, pursuant to 34 Pa. Code § 101.51,5 the Referee conducted the hearing without
them. The Referee found Claimant ineligible for benefits but did so for a different
reason than the Service Center. Unlike the Service Center, the Referee found that
Claimant was able to work, making her eligible for benefits under Section
401(d)(1) of the Pennsylvania Unemployment Compensation Law (Law).6
However, again, contrary to the Service Center’s finding, the Referee went on to
find that Claimant did not have a necessitous and compelling reason to leave work,
making her ineligible for benefits under Section 402(b) of the Law.7

       5
           34 Pa. Code. § 101.51 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.

       6
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1). Section 401(d)(1) provides that compensation shall be payable to any employee who
is or becomes employed and who “[i]s able to work and available for suitable work.”

       7
       Section 402(b) of the Law provides, in part, that an employee shall be ineligible for
compensation for any week:
(Footnote continued on next page…)

                                                 4
                 Claimant then appealed to the Board, contending that her broken hip
and the stress from the FBI investigation constituted a necessitous and compelling
reason to leave work. The Board remanded the matter to the Referee to act as a
hearing officer for the Board with instructions to limit the evidence to whether
Claimant had proper cause not to appear.


                 At the remand hearing, Claimant testified that she did not appear at
the June 13, 2016 hearing because she had been released from the hospital on June
12, 2016. She admitted that she did not confirm that her continuance had been
granted and did not appear because she assumed that it would be granted. With
regard to her June 10, 2016 request, the Referee explained that it was not granted
because the fax:

                 That was received by the Referee’s Office and there
                 [were] telephone calls made because we couldn’t figure
                 out what was going on. . . . And so, because there was—
                 all there was, was the statement in regard to being in the
                 hospital, but we didn’t know when, or where, or
                 whatever.[8]



(continued…)

                 In which his unemployment is due to voluntarily 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….

43 P.S. § 802(b).

       8
            (R. Item No. 14, Board Hearing—Remand: Transcript of Testimony, dated 9/14/2016,
pp. 3-4).



                                                 5
              The Board held that Claimant did not show proper cause for her
nonappearance because:

              The claimant testified that she was in the hospital until
              June 12, 2016, the day before the hearing. The claimant
              has not shown proper cause why she did not attend the
              hearing because she was out of the hospital on the day of
              the hearing and could have either attended the hearing or
              called the Referee to confirm her continuance had been
              granted or again request a continuance.[9]


              Claimant then filed a petition for review to this Court10 claiming that
the Board erred in finding that she lacked “proper cause” for her nonappearance at
the June 13, 2016 hearing.11




       9
           (R. Item No. 15, Board’s Order w/Returned Employer Copy, dated 9/30/2016
(Ineligible)).

       10
         In unemployment compensation appeals, this Court’s review is limited to determining
whether the Board’s adjudication was in violation of constitutional rights, whether errors of law
were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v.
Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987).

       11
           Claimant contends that the Board capriciously disregarded her evidence in arriving at
its decision. “A capricious disregard of evidence occurs where the fact finder willfully and
deliberately disregards competent and relevant evidence that one of ordinary intelligence could
not possibly have avoided in reaching a result.” Wise v. Unemployment Compensation Board of
Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). However, “[t]he express consideration and
rejection of this evidence, by its definition, is not capricious disregard.” Taliaferro v. Darby
Township Zoning Hearing Board, 873 A.2d 807, 816 (Pa. Cmwlth. 2005). Claimant’s
contention is not that the Board capriciously disregarded evidence, but erred in finding that her
evidence did not establish proper cause for her nonappearance. We note, though, that the Board
specifically referenced Claimant’s testimony in its decision.



                                               6
                                        II.
            If a party does not appear at an unemployment compensation hearing
at the date, hour and place of the hearing “without proper cause, the hearing may
be held in his absence.” 34 Pa. Code § 101.51. When a party contends that he or
she has a “proper cause” for his or her nonappearance, the Board must make an
independent determination that the reasons proffered constitute proper cause.
McNeill v. Unemployment Compensation Board of Review, 511 A.2d 167, 169 (Pa.
1986). A party’s own negligence is not sufficient to establish proper cause for
failing to appear at a Referee’s hearing. Eat’N Park Hospitality Group, Inc. v.
Unemployment Compensation Board of Review, 970 A.2d 492, 494 (Pa. Cmwlth.
2008) (holding that referee’s inability to contact employer on day of hearing due to
failure of employer to inform referee of a change in telephone number is not proper
cause for nonappearance).     See also Bennett v. Unemployment Compensation
Board of Review (Pa. Cmwlth., No. 1644 C.D. 2015, filed September 26, 2016)
2016 WL 5349360 (holding that failure to appear because claimant got lost on the
way to the hearing without further explanation is not “proper cause”).


            At the remand hearing, Claimant testified that she was admitted to the
hospital on June 6, 2016, and presented testimony that she was released from her
six-day hospital stay on June 12, 2016. She did not provide any medical reason
that she could not attend the June 13, 2016 hearing. We agree with the Board that
Claimant’s explanation that her release from the hospital the day before the
hearing, without more, did not establish proper cause for her nonappearance at the
hearing the next day.




                                         7
             Claimant also contends that she had proper cause for her
nonappearance because she assumed her June 10, 2016 request for continuance had
been granted. Because her June 10, 2016 request for continuance was not specific
as to where she was hospitalized and the length of her stay, the Referee attempted
to contact Claimant to obtain more details to decide whether to grant the
continuance. He was unable to do so because Claimant’s mother did not answer
the phone or forward that voicemail message to her which explained that Claimant
needed to have her hospitalization verified.       Once a party has filed for a
continuance, it has a continuing obligation to attend the hearing until it is granted
and cannot assume that a continuance will be granted. Such an assumption is not
proper cause not to attend the hearing as scheduled.


             Accordingly, for the foregoing reasons, the Board’s order is affirmed.



                                       ______________________________
                                       DAN PELLEGRINI, Senior Judge




                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chandra B. Chiado,                     :
                 Petitioner            :
                                       :
            v.                         : No. 1786 C.D. 2016
                                       :
Unemployment Compensation              :
Board of Review,                       :
                 Respondent            :




                                      ORDER


            AND NOW, this 24th day of May, 2017, the order of the
Unemployment Compensation Board of Review dated September 30, 2016, in the
above-captioned matter is affirmed.



                                       ______________________________
                                       DAN PELLEGRINI, Senior Judge
