J.A. Patterson v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janette A. Patterson, :
Petitioner :
:
v. :
:
Unemployment Compensation : No. 1861 C.D. 2019
Board of Review, : No. 1862 C.D. 2019
Respondent : Submitted: August 21, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 24, 2020
Janette A. Patterson (Claimant) petitions this Court, pro se, for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) November 12,
2019 orders affirming the Referee’s decisions finding Claimant ineligible for UC
benefits under Sections 401(d)(1) and 402(b) of the UC Law (Law),1 appeal numbers
9660 and 9661, respectively. Claimant presents two issues for this Court’s review: (1)
whether the UCBR erred by determining Claimant was not able and available for work;
and (2) whether the UCBR erred by determining that Claimant voluntarily left her
employment without necessitous and compelling cause. After review, we affirm.
Michael G. Rubin (Employer) employed Claimant as a part-time
housekeeper beginning June 22, 2017. On February 22, 2019, Claimant voluntarily
resigned her employment. On June 23, 2019, Claimant applied for UC benefits. On
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
801(d)(1) (able and available for suitable work), 802(b) (voluntarily leaving work without cause of a
necessitous and compelling nature).
July 17, 2019, the Erie UC Service Center issued two determinations, ruling therein
that Claimant was ineligible for UC benefits under Sections 401(d)(1) and 402(b) of
the Law. Claimant appealed from both determinations and a Referee hearing was held
on August 27, 2019. Although one hearing was held for both appeals, the Referee
issued two decisions. On September 3, 2019, the Referee affirmed the UC Service
Center’s determination that Claimant was not able and available for work, declaring:
The Claimant Advocate was the only individual to participate
in the hearing. The [Claimant] Advocate testified credibly
that [] Claimant did not appear because it was necessary for
her to attend a medical appointment for her father, who has a
heart condition. The hearing notice notifies parties that a
hearing may be postponed upon request at the discretion of
the Referee. There is no evidence that [] Claimant requested
a postponement.
It is not possible for the Referee to accept the testimony of
the [Claimant] Advocate in the absence of competent
firsthand testimony. [] Claimant must be rendered ineligible
for benefits.
Referee Dec. Appeal No. 9660 at 2. On September 3, 2019, the Referee also affirmed
the UC Service Center’s determination that Claimant voluntarily left work without
cause of a necessitous and compelling nature, similarly explaining:
The only individual to appear for the hearing was a Claimant
Advocate. This individual was permitted to offer testimony,
however[,] the Referee cannot consider her statements in the
absence of competent firsthand testimony from [] Claimant.
The [Claimant] Advocate stated credibly that [] Claimant did
not appear because her father, who has a heart condition, had
a medical appointment on the day of the hearing. The
hearing notice provides parties the opportunity to request a
postponement of a proceeding. There is no evidence that []
Claimant requested a postponement.
[] Claimant’s burden of proof has not been met. [UC]
[b]enefits are denied.
2
Referee Dec. Appeal No. 9661 at 2.
Claimant appealed from both decisions to the UCBR, arguing that she
believed she did not have to appear if a Claimant Advocate appeared on her behalf, and
requested a hearing so she could produce evidence. On November 12, 2019, the UCBR
separately denied the hearing requests and affirmed the Referee’s decisions. Both
UCBR decisions contained the following ruling:
The [UCBR], after considering the entire record in this
matter, concludes that the determination made by the Referee
is proper under the [Law]. Therefore, the [UCBR] adopts
and incorporates the Referee’s findings and conclusions. []
[C]laimant requested a remand hearing to present her
testimony[,] as she was unaware that her advocate could not
offer testimony on her behalf. However, the Notice of
Hearing outlines the purpose of the hearing and the
requirements for parties to request a continuance. Here, []
[C]laimant had the opportunity for a full and fair hearing and
chose not to participate or request a continuance. A
claimant’s own negligence or misunderstanding of the
process is insufficient proper cause to justify her failure to
appear at a referee’s hearing and warrant a new hearing.
Accordingly, the Board enters the following order:
The decision of the Referee is affirmed.
UCBR Dec. Appeal Nos. 9660, 9661 at 1. Claimant appealed from both orders to this
Court.2 On February 27, 2020, the UCBR filed an Application for Consolidation,
which this Court granted.
Claimant raises her reason for not appearing at the Referee hearing in her
Petition for Review, but argues in her brief to this Court that she was able and available
2
“Our scope of review is to determine whether constitutional rights were violated, whether
an error of law was committed or whether necessary findings of fact are supported by substantial
competent evidence.” Allen v. Unemployment Comp. Bd. of Review, 189 A.3d 1128, 1133 n.3 (Pa.
Cmwlth. 2018).
3
to work for waiting week ending June 29, 2019 and, based on the Claimant Advocate’s
representations on her behalf, she had necessitous and compelling cause for quitting
her job. The UCBR rejoins that, although Claimant raises the issue of her failure to
attend the hearing in the “Statement of Case” section of her brief, Claimant Br. at 3,
Claimant does not list it in the “Statement of Questions Involved,” id., nor argue it in
the “Summary of Argument” or “Argument” sections of her brief, Claimant Br. at 6, 7,
thus, Claimant waived that issue.
Initially,
Claimant, in her Petition for Review, [raises her entitlement
to a remand hearing]. Nonetheless, she fails to address this
issue in either her statement of questions or argument section
of her brief. As such, this issue is waived consistent with
[Pennsylvania Rule of Appellate Procedure (Rule)] 2116(a)
[(‘No question will be considered unless it is stated in the
statement of questions involved . . . .’),] and [Rule] 2119(a)
[(‘The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each
part--in distinctive type or in type distinctively displayed--
the particular point treated therein, followed by such
discussion and citation of authorities as are deemed
pertinent.’)]. AT&T v. Workers’ Comp[.] Appeal [Bd.]
(DiNapoli), 816 A.2d 355, 361 (Pa. Cmwlth. 2003); LP
Water & Sewer Co. v. [Pa.] Pub. Util. Comm’n, 722 A.2d
733, 738 (Pa. Cmwlth. 1998); Watkins v. Unemployment
Comp[.] [Bd.] of Review, 689 A.2d 1019 (Pa. Cmwlth. 1997).
Muretic v. Workers’ Comp. Appeal Bd. (Dep’t of Labor & Indus.), 934 A.2d 752, 758
(Pa. Cmwlth. 2007) (footnotes omitted).
Further,
[Rule] 1551(a) . . . states[,] in pertinent part: ‘Review of
quasijudicial orders shall be conducted by the court on the
record made before the government unit. No question shall
be heard or considered by the court which was not raised
before the government unit. . . .’ [Pa.R.A.P. 1551(a)].
Umedman v. Unemployment Comp. Review Bd., 52 A.3d 558, 565 (Pa. Cmwlth. 2012).
4
Here, the only issue Claimant raised before the UCBR was her request for
a remand hearing. See Certified Record (C.R.) Item 11 (Claimant’s Appeal from
Referee’s Decisions and Request for Remand Hearing). However, Claimant did not
list her remand hearing request as an issue in her Statement of Questions Involved, nor
did she argue it in her brief to this Court. Accordingly, Claimant waived the only issue
properly before this Court.
Notwithstanding, it is well-settled law that “a claimant’s own negligence
is insufficient ‘proper cause’ as a matter of law, to justify [her] failure to appear at a
referee’s hearing and warrant a new hearing.” Savage v. Unemployment Comp. Bd. of
Review, 491 A.2d 947, 950 (Pa. Cmwlth. 1985); see also Gibson v. Unemployment
Comp. Bd. of Review (Pa. Cmwlth. No. 1732 C.D. 2018, filed November 7, 2019);
Cooke v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 1718 C.D. 2018, filed
July 24, 2019); Irvin v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 284
C.D. 2018, filed January 4, 2019).3 Because Claimant’s own negligence in
misunderstanding the hearing notice cannot justify her failure to appear at the Referee’s
hearing, “Claimant’s contention that [her] absence from the Referee’s hearing was for
‘proper cause’ must be rejected.” Savage, 421 A.2d at 950.
For all of the above reasons, the UCBR’s orders are affirmed.
___________________________
ANNE E. COVEY, Judge
3
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent. These unreported cases are cited herein for their
persuasive value.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janette A. Patterson, :
Petitioner :
:
v. :
:
Unemployment Compensation : No. 1861 C.D. 2019
Board of Review, : No. 1862 C.D. 2019
Respondent :
ORDER
AND NOW, this 24th day of September, 2020, the Unemployment
Compensation Board of Review’s November 12, 2019 orders are affirmed.
___________________________
ANNE E. COVEY, Judge