           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Home Care Helpers, LLC,                       :
                      Petitioner              :
                                              :
                     v.                       :   No. 1052 C.D. 2016
                                              :   Submitted: December 23, 2016
Unemployment Compensation Board               :
of Review,                                    :
                    Respondent                :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                           FILED: March 20, 2017



       Home Care Helpers, LLC (Employer), petitions for review of an Order of
the Unemployment Compensation (UC) Board of Review (Board) concluding that
Elena L. Rejametova (Claimant) is not ineligible for UC benefits under Sections
402(b)1 or 402(e)2 of the UC Law (Law). On appeal, Employer argues that the

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) provides, in relevant part: “An employe shall be ineligible for
compensation for any week— . . . (b) In which h[er] 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 . . . .” Id.
       2
          43 P.S. § 802(e). Section 402(e) provides: “An employe shall be ineligible for
compensation for any week— . . . (e) In which h[er] unemployment is due to h[er] discharge or
                                                                             (Continued…)
Board erred in concluding that Claimant’s separation from her employment was
involuntary and, in the alternative, that Claimant’s separation was not due to
Claimant’s willful misconduct. Finding no error, we affirm.


I.     BACKGROUND
       Claimant was employed as a full-time home health aide with Employer
“from May 1, 2014 through approximately December 28, 2015.”                           (Referee
Decision, Findings of Fact (FOF) ¶ 1.) Claimant’s work was to provide home care
assistance to her mother (Mother). (Id. ¶ 2.) Employer did not allow Claimant to
continue providing these services to Mother after December 28, 2015. (Id. ¶ 3.)
There is a dispute between the parties over the terms of Claimant’s subsequent
separation from her employment.
       Claimant applied for UC benefits in January of 2016 and submitted a
completed Claimant Questionnaire alleging that she was discharged by Employer
on the basis of discrimination. (R.R. at 1a-4a.) A UC Service Center found that
because Claimant voluntarily quit her employment without a necessitous and
compelling cause, she is ineligible for benefits under Section 402(b) of the Law.
(Id. at 6a.) Claimant appealed and the matter was assigned to a UC Referee for a
hearing and disposition.
       Hearings were held on March 24, 2016 and April 8, 2016, at which Claimant
and Employer’s Office Manager (Office Manager) testified.3 Neither party was

temporary suspension from work for willful misconduct connected with h[er] work, irrespective
of whether or not such work is “employment” as defined in this act.” Id.
       3
         In addition to Office Manager, one of the two owners of Employer attended the March
24, 2106 hearing and intended to testify. (R.R. at 39a.) However, the March 24, 2016 hearing
ran over time and was continued to April 8, 2016. (Id. at 56a, 76a.) Only Office Manager
attended the April 8, 2016 hearing on behalf of Employer as the owner was sick that day. (Id. at
                                                                               (Continued…)
                                               2
represented by counsel at the hearings. The Referee began the March 24, 2016
hearing by asking whether Claimant voluntarily quit her employment or whether
she was terminated.        (R.R. at 43a.)       Office Manager testified that Claimant
voluntarily left her employment, and Claimant testified that she was terminated.
(Id.)
        Office Manager testified as follows. Claimant began her employment on
May 1, 2014, and Claimant’s last day was either December 27 or December 28,
2015. (Id. at 44a.) Claimant worked full-time as a home health aide to Mother.
(Id. at 45a.) Claimant was informed at the time she commenced her employment
that she could not serve as Mother’s representative at the same time she served as
Mother’s home health aide. (Id.) Claimant was informed about this rule on the
phone and in person by a caseworker with the Allegheny County Area Agency on
Aging (County Agency). (Id. at 45a-46a.) However, Office Manager was not
present at any time when Claimant was informed of this rule.                     (Id. at 46a.)
Employer’s files had another individual listed as Mother’s representative up to
January 22, 2015. (Id. at 49a.) Mother’s case worker informed Employer via
email on October 22, 2015, that the previous representative was no longer listed as
Mother’s representative, and the matter was raised with Claimant by a
representative of the County Agency and one of the two owners of Employer at
Claimant’s house. (Id. at 49a-50a; Employer’s Ex. 1, R.R. 58a.) In December of
2015, the other owner of Employer told Claimant that there were opportunities to
work with other clients for which she was not a representative. (Id. at 46a.) Office


76a.) Similarly, Claimant brought a witness to the March 24, 2016 hearing that did not have an
opportunity to testify. (Id. at 38a.) This witness also did not attend the April 8, 2016 hearing.
(Id. at 76a.)

                                               3
Manager was present when Claimant was told of other opportunities, but because
the conversation between Claimant and the owner was conducted in Russian,
Office Manager could not understand what was said. (Id.) Mother’s home health
care services were then re-assigned to two other employees. (Id. at 53a.)
        Office Manager testified at the March 24, 2016 hearing that there was
another issue that led to Claimant’s separation. (Id. at 47a.) Office Manager stated
that she was not able to testify to the facts underlying that issue because an
investigation on the matter was not completed by Protective Services. (Id.) The
Referee asked Office Manager at the start of the April 8, 2016 hearing if she was
prepared to offer testimony on that issue and Office Manager declined. (Id. at
77a.)
        Claimant, through an interpreter, testified as follows. Claimant worked for
Employer caring for Mother. (Id. at 78a.) Claimant never resigned from Employer
and remains able and ready to work. (Id.) One of the owners of Employer told her
that she was fired when the owner came to Claimant’s house intoxicated and
behaving inappropriately.4         (Id.)    The owner attacked another caregiver by
scratching and punching him in the stomach.5 (Id.) The owner told Claimant that
Mother had to go to a nursing home and that Claimant was fired. (Id.) The owner
later called Claimant and told her that she was fired and that the other caregiver
would be next. (Id.) The owner told Claimant that she should not even think about
applying for UC benefits because the owner and the County Agency are “related to

        4
          It is not clear from the transcript when these events transpired. The transcript reads:
“Until then, you know from [inaudible] 20th, [owner] told me that I was fired. (R.R. at 78a (first
alteration in original).) Based on Office Manager’s testimony, it appears that the missing word is
“December,” however this fact remains unknown.
        5
          The other caregiver was prepared to testify at the March 24, 2016 hearing, but did not
attend the April 8, 2016 hearing when Claimant testified to these facts.

                                                4
the government and you have no chance of getting Unemployment.” (Id.) A
representative from the County Agency emailed Claimant and told her that unless
Claimant and Mother found a new home care agency, Mother’s assistance would
be discontinued. (Id.) The same representative later called Claimant and told her
that they are taking away all of Claimant’s work hours. (Id.) Claimant told the
representative that she could give her the name of another person to serve as
Mother’s representative. (Id. at 80a.) The representative told Claimant that such
was not possible. (Id.) Claimant later attempted to name a new representative
through an email to the representative, which went unanswered. (Id.) Claimant
thinks that she was discriminated against because she is Russian. (Id. at 78a.)
Claimant went into Employer’s office asking for documentation on the reason for
her termination, and Employer refused her request. (Id. at 78a-79a.)
      Office Manager questioned Claimant at the April 8, 2016 hearing and asked
Claimant whether she understood that there was alternative work available. (Id. at
81a.) Claimant responded by stating: “I understand but nobody offered me any
other work. They just wanted to get rid of me.” (Id.) The Referee asked Claimant
whether she would be available to accept employment for other individuals, to
which Claimant responded “yes.” (Id. at 82a.) The Referee asked Office Manager
whether she personally contacted Claimant to offer her additional employment.
(Id. at 83a.) Office Manager said that she had not. (Id.) According to Office
Manager, one of Employer’s owners offered Claimant alternative work in Russian
when Claimant came into the office. (Id.) While Office Manager could not
understand Russian, the owner told Office Manager what was said after Claimant
left the office. (Id.) Office Manager testified that the owner could not attend the
hearing because she had to be in the office while Office Manager was away. (Id.)


                                        5
When asked by the Referee why the owner did not come in the place of Office
Manager, Office Manager testified: “I’m just doing what I’m told – I am not sure.”
(Id. at 84a.)
       The Referee considered the evidence and issued a Decision and Order on
April 14, 2016. The Referee found that Claimant did not quit her employment and
that Employer did not offer Claimant work with any other individuals. (FOF ¶¶ 3-
4.) The Referee concluded that Office Manager’s testimony was hearsay and
reasoned as follows.

       Here, there is no competent evidence of record to corroborate
       [E]mployer’s hearsay testimony.        [C]laimant denies being a
       representative for her mother and further denies being offered other
       job assignments. [C]laimant denies quitting [her] employment and
       argues that she was fired. The evidence of record leads to the
       conclusion that [C]laimant’s separation from employment was
       involuntary and Section 402(b) of the Law does not apply. There is
       no competent evidence of record to meet [E]mployer’s burden of
       proving willful misconduct and [C]laimant’s request for UC benefits
       cannot be denied in accordance with Section 402(e) of the Law.

(Referee Decision at 2.)         The Referee concluded that because Claimant’s
separation was involuntary, she could not be found ineligible for benefits under
Section 402(b) of the Law, and that Employer did meet its burden to prove willful
misconduct under Section 402(e) of the Law. (Id.) Employer appealed to the
Board, which affirmed and adopted and incorporated the Referee’s findings and
conclusions. (Board Order.) This appeal followed.6


       6
         This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact
were supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014).

                                             6
II.     EMPLOYER’S APPEAL
        On appeal, Employer argues that Claimant voluntarily terminated her
employment without a necessitous and compelling cause. Employer further argues
that Claimant is guilty of willful misconduct by “engag[ing] in neglectful behavior
toward her client.” (Employer’s Br. at 17.) This neglect, according to Employer,
“resulted in a confidential investigation by the Allegheny County Area Agency on
Aging and Protective Services” and the removal of Mother from Claimant’s home.
(Id.)
        The central issue in this case is whether Claimant’s separation from her
employment was voluntary or involuntary. While our review of this question is
highly fact intensive, “[w]hether a claimant’s separation from employment is the
result of a voluntary action or a discharge is a question of law subject to review by
this Court and must be determined from a totality of the facts surrounding the
cessation of employment.” Watkins v. Unemployment Comp. Bd. of Review, 65
A.3d 999, 1004 (Pa. Cmwlth. 2013).         To that end, “[a] finding of voluntary
termination is essentially precluded unless the claimant has a conscious intention to
leave h[er] employment.” Id.
        The Board considered conflicting testimony on the terms of Claimant’s
separation from her employment and concluded that Claimant’s separation was not
voluntary. (FOF ¶ 4.) Employer did not permit Claimant to continue working as
Mother’s home health aide and did not offer Claimant employment with other
individuals. (Id. ¶ 3.) Based on these findings, we see no error of law because
there is no indication from the facts found by the Board that Claimant intended to
leave her employment.



                                         7
       Office Manager’s testimony on the terms of Claimant’s separation is little
more than uncorroborated hearsay.7               Employer argues in its Reply Brief that
documents attached to its Brief allegedly corroborating Office Manager’s
testimony should be considered because the record made at the administrative level
was incomplete. Employer cites to this Court’s case law addressing local agency
appeals stating that “where a record before a local agency is incomplete the trial
court may hear the appeal de novo, or may remand the proceedings to the agency
for the purposes of making a full and complete record.” (Reply Br. at 12 (citing
Cain v. Allegheny Cnty. Housing Auth., 986 A.2d 947, 957 n.7 (Pa Cmwlth.
2009)).) Employer further argues that remand is appropriate in the UC context
where the Board fails to make adequate findings of fact sufficient for this Court to
perform its appellate review. (Id. (citing Falciglia v. Unemployment Comp. Bd. of
Review, 422 A.2d 1204, 1207 (Pa. Cmwlth. 1980)).)
       To the extent that Employer argues that the record before the Referee and
Board was incomplete because it contains no evidence corroborating Office
Manager’s testimony, we believe it was up to Employer to introduce such evidence

       7
          Hearsay is “a statement that (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.” Rule 801(c) of the Pennsylvania Rules of Evidence, Pa. R.E. 801(c).
“Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and
may support a finding of the Board, [i]f it is corroborated by any competent evidence in the
record, but a finding of fact based [s]olely on hearsay will not stand.” Walker v. Unemployment
Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). While Employer argues in its
reply brief that Office Manager’s testimony is not hearsay, Employer did not raise this issue to
the Board or in the Petition for Review to this Court. This issue is, therefore, waived for
appellate review. Lausch v. Unemployment Comp. Bd. of Review, 679 A.2d 1385, 1391 (Pa.
Cmwlth. 1996). Even if the issue was not waived, we would conclude that Office Manager’s
testimony on the terms of Claimant’s separation is uncorroborated hearsay as Office Manager’s
testimony relies exclusively on out of court statements made to her by the owners of Employer.


                                                  8
at the hearing. There has been no argument that Employer was precluded from
doing so. Given the evidence presented, the Board’s findings of facts sufficiently
allow this Court to conduct appellate review. We expect that the record will be
developed by the Referee. Umedman v. Unemployment Comp. Bd. of Review, 52
A.3d 558, 564 (Pa. Cmwlth. 2012). We cannot consider any evidence not made
part of the certified record on appeal. Id. Accordingly, we will not consider the
documents attached to Employer’s brief.
       Employer also argues that Office Manager’s testimony is corroborated by a
single sentence of Claimant’s Petition for Appeal from the Notice of Determination
and evidence attached to its brief that was not submitted to the Referee. The
sentence in Claimant’s Petition for Appeal pointed to by Employer relates to
Claimant’s allegation of discrimination and Mother’s wish to change the manner in
which her services were provided. (Petition for Appeal ¶ 6, R.R. at 17a.) The
allegation reads:

       My mom wanted to change this agency to self-services to do it My
       Way[8] and stay home so it will take care of all problems without
       discrimination [of] her rights. [The representative of the County
       Agency] is not willing to help with My Way, based on the hate and
       discrimination [of] Russians with disabilities. She said that My Way
       is not for you!

(Id.) This sentence, reflecting Mother’s desire to change the terms of her care and
Claimant’s exploration of alternative approaches to Mother’s care, does not go to

       8
          “My Way” appears to refer to the “Services My Way” model of long-term care
assistance administered by the Department of Human Services. Claimant testified that she tried
to “enroll in the service called Service My Way” and was told by the representative of County
Agency that she could not because she was “already fired.” (R.R. at 79a-80a.) Information on
the     “Services       My       Way”     program      can      be     found    online      at:
www.dhs.pa.gov/citizens/longtermcareservices (last visited Feb. 21, 2017).

                                              9
the terms of Claimant’s separation and, therefore, does not corroborate Office
Manager’s hearsay testimony.
      The evidence of record, specifically Claimant’s testimony that she did not
quit but was fired and that Employer did not give her any other clients, represents
substantial evidence in support of the Board’s findings. By arguing that the facts
of record do not support a finding that Claimant’s termination was not voluntary,
Employer essentially asks this Court to reweigh the evidence, which we cannot do.

      [I]t is well settled that the Board is the ultimate finder of fact in
      unemployment compensation proceedings. Thus, issues of credibility
      are for the Board which may either accept or reject a witness’
      testimony whether or not it is corroborated by other evidence of
      record. Findings of fact are conclusive upon review provided that the
      record, taken as a whole, contains substantial evidence to support the
      findings. This Court must examine the evidence in the light most
      favorable to the party who prevailed before the Board, and to give that
      party the benefit of all inferences that can be logically and reasonably
      drawn from the testimony.

Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth.
2011) (citations omitted). As such, we will not disturb the findings, which support
the Board’s conclusion that Claimant did not voluntarily leave her employment.
      Employer’s willful misconduct argument presumes that Claimant was
involuntarily discharged and relies exclusively on bare allegations of neglect and
evidence not presented to the Referee or Board. Office Manager was provided two
opportunities to present evidence on Claimant’s alleged neglectful conduct to the
Referee and declined. (R.R. at 47a, 77a.) The only evidence relied upon by
Employer in support of this claim of willful misconduct is a document detailing its
work rules attached to Employer’s brief to this Court. As stated above, we cannot
consider the documents attached to Employer’s brief that were not presented to the

                                        10
Board. Umedman, 52 A.3d at 564. As the employer bears the burden to prove
willful misconduct, Chapman, 20 A.3d at 606, and Employer presented no
competent evidence showing that Claimant was terminated for willful misconduct,
we must conclude that the Board did not err in concluding that Employer has not
met its burden.


      For the foregoing reasons, the Order of the Board is affirmed.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                        11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Home Care Helpers, LLC,              :
                      Petitioner     :
                                     :
                 v.                  :   No. 1052 C.D. 2016
                                     :
Unemployment Compensation Board      :
of Review,                           :
                    Respondent       :



                                   ORDER


     NOW, March 20, 2017, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is AFFIRMED.




                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
