                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James W. Cooke,                                  :
                          Petitioner             :
                                                 :
                   v.                            :
                                                 :
Unemployment Compensation                        :
Board of Review,                                 :    No. 1718 C.D. 2018
                 Respondent                      :    Submitted: May 10, 2019



BEFORE:            HONORABLE MARY HANNAH LEAVITT, President Judge
                   HONORABLE RENÉE COHN JUBELIRER, Judge
                   HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: July 24, 2019


                   James W. Cooke (Claimant) petitions, pro se, for review from the
December 5, 2018 order of the Unemployment Compensation Board of Review
(Board), which affirmed the decision of an Unemployment Compensation (UC)
referee (Referee) finding Claimant ineligible for benefits under Section 402(b) of
the Unemployment Compensation Law (Law),1 which provides that a claimant shall
be ineligible for benefits in any week in which his unemployment is due to
voluntarily leaving work without cause of a necessitous and compelling nature. We
affirm.


          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
              Claimant was employed by Adecco Staffing (Employer), a temporary
staffing agency, from November 4, 2016 through December 7, 2016. See Referee’s
Decision/Order dated October 17, 2018 (Referee’s Decision), Findings of Fact2
(F.F.) 1; see also Employer Separation Information dated March 22, 2018, Certified
Record Item No. 2 (Employer Separation Information), at 2. Claimant informed
Employer that he suffered a wrist injury at home and could no longer work. See
Employer Separation Information. Claimant did not return to work for Employer.
Id. Claimant thereafter applied for and received Unemployment Compensation
(UC) benefits in the amount of $4,710.00. See Claim Record, Certified Record Item
No. 1; F.F. 3.
              On September 7, 2018, the Department of Labor and Industry, Office
of Unemployment Compensation Benefits (Department), mailed Claimant a Notice
of Determination that concluded that Claimant was ineligible for UC benefits under
Section 402(b) of the Law because he voluntarily quit his employment with
Employer, did not inform Employer of his work limitations, and did not show a
necessitous and compelling reason for leaving his employment. See Notice of
Determination and Notice of Determination Overpayment of Benefits both dated
September 7, 2018, Certified Record Item No. 5 (collectively, Notice of
Determination). The Department further informed Claimant that he had received
UC payments to which he was not entitled and established a $4,710.00 fault
overpayment under Section 804(a) of the Law, 43 P.S. § 874(a), subjecting Claimant
to repayment of the overpayment. Id.



       2
          The Board adopted and incorporated the Referee’s findings of fact and conclusions of
law in its order affirming the Referee’s decision. See Board Order dated December 5, 2018.

                                              2
              On September 18, 2018, Claimant filed a Petition for Appeal
challenging the Department’s Notice of Determination. See Petition for Appeal
dated September 18, 2018, Certified Record Item No. 7 (Petition for Appeal). As
his reason for disagreeing with the determination and filing the appeal, Claimant
stated:

              I was denied benefits for 12/10/16-3/18/17 and I was not
              employed. I have already paid backed [sic] $762.04 due
              to overpayment. I do not owe anything.

Petition for Appeal at 3 (pagination supplied).

              On October 5, 2018, the Department mailed a Notice of Hearing to both
Claimant and Employer. See Notice of Hearing dated October 5, 2018, Certified
Record Item No. 10 (Notice of Hearing). The Notice of Hearing indicated the date,
time, and location of the hearing and instructed the participants to report at least 15
minutes prior to the designated start time to review case materials. Id.
              Despite receiving the Notice of Hearing,3 neither party attended the
hearing. See Transcript of Referee’s Hearing, October 17, 2018, Certified Record
Item No. 11, at 1. Additionally, neither party requested a postponement of the
proceedings. Id. The Referee accepted the Notice of Hearing and multiple pertinent
Department forms into evidence before closing the record. Id.
              On October 17, 2018, the Referee issued the Referee’s Decision finding
that Claimant voluntarily resigned his employment with Employer. See Referee’s
Decision at 1 (pagination supplied). Therefore, the Referee concluded that Claimant

       3
         Neither the Notice of Hearing mailed to Claimant nor the Notice of Hearing mailed to
Employer was returned by postal authorities as undeliverable. See Transcript of Referee’s
Hearing, October 17, 2018, Certified Record Item No. 11, at 1.

                                             3
was ineligible for UC benefits under Section 402(b) of the Law. See id. at 1-2.
Regarding the $4,710.00 overpayment of UC benefits previously received by
Claimant, the Referee modified the $4,710.00 overpayment from a fault
overpayment subject to repayment to a non-fault overpayment subject only to
recoupment, not repayment, under Section 804(b) of the Law.4 Id. at 2-3.
                 Claimant appealed to the Board. See Petition for Appeal dated October
22, 2018, Certified Record Item No. 13. On December 5, 2018, the Board adopted
the Referee’s findings of fact and conclusions, and ultimately affirmed the Referee’s
determinations that: (1) Claimant was ineligible for UC benefits under Section
402(b) of the Law because Claimant did not prove that his separation from
employment was involuntary; and (2) the $4,710 overpayment was a non-fault
overpayment subject to recoupment. See Board Decision and Order, December 5,
2018 (Board Decision) at 1. Claimant then petitioned this Court for review.5
                 On appeal, Claimant contends that the Board erred in affirming the
Referee’s determination that Claimant was ineligible for UC benefits under Section
402(b) of the Law. See Claimant’s Brief at 5-6. Claimant argues that he informed

       4
           Section 804(b) of the Law provides, in pertinent part:

                 Any person who other than by reason of his fault has received with
                 respect to a benefit year any sum as compensation under this act to
                 which he was not entitled shall not be liable to repay such sum but
                 shall be liable to have such sum deducted from any future
                 compensation payable to him with respect to such benefit year, or
                 the three-year period immediately following such benefit year[.]

43 P.S. § 874(b)(1).
       5
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed, or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).

                                                  4
Employer of his injury, but never said that he would not return to work. Id. Claimant
alleges that Employer told him not to return to work. Id.
             Section 402(b) of the Law provides that an employee will be ineligible
for UC benefits for any week “[i]n which his unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature[.]” 43 P.S. §
802(b). Whether an employee’s separation from employment results from the
employee voluntarily quitting or from an employer discharge is a question of law
subject to review by this Court that must be determined from a totality of the facts
surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of
Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996).               An employee voluntarily
terminates employment when he resigns, leaves, or quits the employment without
action by the employer. Roberts v. Unemployment Comp. Bd. of Review, 432 A.2d
646, 648 (Pa. Cmwlth. 1981). Further, “[e]mployees of temporary staffing agencies
who fail to follow the employer agency’s policies regarding work availability will
be considered to have voluntarily quit work.” Thiessen v. Unemployment Comp. Bd.
of Review, 178 A.3d 255, 261 (Pa. Cmwlth.), appeal denied, 194 A.3d 554 (Pa. 2018)
(internal quotation marks omitted).
             However, a claimant who voluntarily quits his employment may still be
eligible for UC benefits if he voluntarily quit for cause of a necessitous and
compelling nature. See 43 P.S. § 802(b). “Whether a claimant had cause of a
necessitous and compelling nature to quit a job is a conclusion of law subject to
review by this Court.” Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d
594, 596 (Pa. Cmwlth. 1997).          “A claimant who voluntarily terminates his
employment has the burden of proving that a necessitous and compelling cause
existed.” Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d


                                          5
1051, 1056 (Pa. Cmwlth. 2012). Claimants who claim to have left their employ for
a necessitous and compelling reason must prove:

             (1) circumstances existed which produced real and
             substantial pressure to terminate employment; (2) such
             circumstances would compel a reasonable person to act in
             the same manner; (3) the claimant acted with ordinary
             common sense; and (4) the claimant made a reasonable
             effort to preserve her employment.

Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006). As the prevailing party below, Employer is
entitled to the benefit of all reasonable inferences drawn from the evidence on
review. See Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d
338, 342 (Pa. Cmwlth. 2008).
             Here, Claimant now alleges that he did not quit, but instead was told by
Employer that, because of his broken wrist, he was a liability and to not return. See
Claimant’s Brief at 5-6. However, this argument is not supported by evidence of
record. Employer reported to the Department that Claimant voluntarily quit a
temporary position as a dishwasher due to health reasons after breaking his wrist at
home. See Employer Separation Information. Employer indicated continuing work
was available, but that Claimant did not maintain contact with Employer after he
quit. Id. Claimant did not respond to the Claimant Questionnaire mailed to him by
the Department. See Claimant Questionnaire, Certified Record Item No. 3. Because
neither Employer nor Claimant appeared at the scheduled hearing, the Referee
entered into the record and considered the available Department records to find that
Claimant voluntarily terminated his employment.        See Transcript of Referee’s
Hearing, October 17, 2018, Certified Record Item No. 11, at 1; Referee’s Decision


                                         6
at 1-2.      Allegations contained in Claimant’s brief cannot support a contrary
conclusion. See Jones v. Workers’ Comp. Appeal Bd. (City of Chester), 961 A.2d
904, 909 (Pa. Cmwlth. 2008) (stating “briefs filed in this Court are not part of the
evidentiary record and assertions of fact therein that are not supported by the
evidentiary record may not form the basis of any action by this Court”).
Consequently, the Board did not err in affirming the Referee’s determination that
Claimant was ineligible to receive UC benefits pursuant to Section 402(b) of the
Law because he failed to meet his burden of proving that a necessitous and
compelling cause for his voluntary quit existed.
                Additionally, to the extent Claimant suggests that he is entitled to relief
based on his misunderstanding as to whether his presence was required at the
hearing, we are unpersuaded. See Claimant’s Brief at 6.
                A referee may conduct a UC benefits hearing in the absence of a
notified party. 34 Pa. Code § 101.51. Further, “[i]n the absence of all parties, the
decision may be based upon the pertinent available records.” Id. However, parties
may make a request to continue a matter before the hearing occurs or a request to
reopen the record after the hearing is complete. See 34 Pa. Code §§ 101.23(a)6 &
101.24(a).7 Both a request to continue a hearing and a request to reopen the record
must be made in writing and set forth the proper cause for the request. Id.

       6
           34 Pa. Code § 101.23(a) provides:

                Continuance of a hearing will be granted only for proper cause and
                upon the terms as the tribunal may consider proper. The inability of
                a party to attend a hearing because he received less than 7 days
                notice will be considered proper cause for continuance of a hearing.

34 Pa. Code § 101.23(a).
       7
           34 Pa. Code § 101.24(a) provides:

                                                 7
              Here, Claimant concedes that he received the Notice of Hearing in the
mail. See Claimant’s Brief at 6. The Notice of Hearing lists the location of the
hearing – Washington Greene County Job Training Agency, 351 West Beau Street,
Washington, PA 15301 – next to the hearing time and date on the first page of the
Notice of Hearing. See Notice of Hearing at 1. Not far thereunder, and still on the
first page, the Notice of Hearing discusses the importance of (1) arriving early to the
hearing to review the file, and (2) bringing identification to the hearing. Id. Later,
in the “Purpose of Hearing” section, the Notice of Hearing discusses the importance
of and reasons for appearing at the hearing. Id. at 2. Additionally, the Notice of
Hearing outlines the requirements for parties to request both continuances and the
reopening of the record after the scheduled hearing date.8 Id. at 3. Nothing in the
record indicates Claimant filed a request to either continue the hearing or reopen the
record once the hearing had occurred. There is no evidence of record to substantiate
Claimant’s self-serving statements in his brief regarding an alleged phone


              If a party who did not attend a scheduled hearing subsequently gives
              written notice, which is received by the tribunal prior to the release
              of a decision, and it is determined by the tribunal that his failure to
              attend the hearing was for reasons which constitute “proper cause,”
              the case shall be reopened. Requests for reopening, whether made
              to the referee or Board, shall be in writing; shall give the reasons
              believed to constitute “proper cause” for not appearing; and they
              shall be delivered or mailed--preferably to the tribunal at the address
              shown on the notice of hearing or to the Unemployment
              Compensation Board of Review, Labor and Industry Building,
              Seventh and Forster Streets, Harrisburg, Pennsylvania 17121, or to
              the local employment office where the appeal was filed.

34 Pa. Code § 101.24(a).
       8
         The Notice of Hearing explains that continuance or reopening requests must be made in
writing and must allege specific reasons and circumstances that constitute “proper cause” for
granting a request to continue or reopen the record. See Notice of Hearing at 3.

                                                8
conversation he had with the Department. See Jones. Additionally, Claimant’s
negligent reading of the admittedly-received Notice of Hearing cannot excuse his
failure to appear at the hearing or to comply with the proper continuance and/or
record reopening procedures. See Savage v. Unemployment Comp. Bd. of Review,
491 A.2d 947, 950 (Pa. Cmwlth. 1985) (holding that “a claimant’s own negligence
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”). Therefore, Claimant’s explanation
of his misunderstanding that his presence was not required at the hearing cannot
afford him relief.
             Finally, Claimant argues that he should not be subject to further
repayment beyond the $762.04 he alleges to have already repaid. See Claimant’s
Brief at 6. We note that the Board adopted the Referee’s determination that the
evidence supported a non-fault overpayment under Section 804(b) of the Law,
subject only to recoupment, as opposed to a fault overpayment under Section 804(a)
of the Law, which would have been subject to repayment. See Referee’s Decision
at 2; Board’s Opinion at 1. We find no error in this determination. Accordingly,
Claimant is not required to repay the overpayment.9
             For these reasons, we affirm the order of the Board.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge




      9
          We note, however, that Claimant remains liable for recoupment of the outstanding
overpayment amount, should qualifying compensation become payable to him in the future. See
43 P.S. § 874(b).
                                            9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James W. Cooke,                     :
                  Petitioner        :
                                    :
           v.                       :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 1718 C.D. 2018
                 Respondent         :


                                ORDER


           AND NOW, this 24th day of July, 2019, the December 5, 2018 order
of the Unemployment Compensation Board of Review is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
