IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christine N. Maher, Petitioner v. No. 321 C.D Unemployment Compensation Submitted July 11, 2014 Board of Review, Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED September 9, 2014 Christine N. Maher (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) affirming the UC Referee s (Referee) denial of her claim for UC benefits pursuant to Section 401(d)(1) of the UC Law (Law). 1 On appeal, Claimant argues that the Board incorrectly determined that she was unable and unavailable for work and, 1 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 [c]ompensation shall be payable to any employe who is or becomes unemployed, and who [i]s able to work and available for suitable work.... Id.

2 therefore, ineligible for UC benefits. Also before this Court for disposition is the Board s Motion to Strike 2 Claimant s reply brief. We will first address the Board s Motion to Strike. I. Motion to Strike In support of its Motion to Strike, the Board argues that (1) Claimant s reply brief violates Rule 2113(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2113(a), because it restates the arguments of her principal brief instead of responding to new matters in the Board s brief; and (2) Claimant has improperly attached extra-record documents to her reply brief. First, we address the Board s argument that Claimant s reply brief violates Rule 2113(a) because it restates her original arguments set forth in her principal brief. Rule 2113(a) states that the appellant may file a brief in reply to matters raised by appellee s brief or in any amicus curiae brief and not previously addressed in appellant s brief. Id. In response, 3 Claimant asserts that the Board s Motion to Strike should be denied because she is defending herself against the new matters raised by the Board in its brief and providing the evidence needed to prove her case. (Answer to Motion to Strike, 1.) 2 The Board s Motion to Strike is titled Application for an Application for Relief in the Form of a Motion to Strike Claimant s Reply Brief and to Dismiss Claimant s Appeal. Therein, however, the Board does not request that Claimant s appeal be dismissed; the only relief requested is that this Court strike Claimant s reply brief. 3 Claimant s response is titled Application for an Application in the Form of a Motion to Counter Strike Respondent s Reply Brief, Motion to Strike and Reverse Appellants Denial, which we shall treat as an answer to the Motion to Strike. 2

3 Upon review of the Board s brief and Claimant s reply brief, it is apparent that Claimant s reply brief is based on a misunderstanding of the Board s choice of phrasing. The Board, in its brief, phrased the counter-statement of the question involved as [w]as Claimant realistically attached to the labor market during the weeks at issue, and therefore, able to work and available for suitable work? (Board s Br. at 1.) In her reply brief, Claimant responds by arguing that the issue of whether she was realistically attached to the labor market was never previously raised. (Claimant s Reply Br. at 1.) Asking whether a claimant was realistically attached to the labor market is just another way of asking if a claimant was able and available to work. The phrase realistically attached to the labor market and several similar variations thereof have been used by this Court when analyzing claims under Section 401(d)(1). See, e.g., Rohde v. Unemployment Compensation Board of Review, 28 A.3d 237, 245 (Pa. Cmwlth. 2011) (using the phrase reasonably attached to the job market ); Hardwood v. Unemployment Compensation Board of Review, 531 A.2d 823, 826 (Pa. Cmwlth. 1987) (using the phrase attached to the labor force ); Kuzma v. Unemployment Compensation Board of Review, 523 A.2d 830, 833 (Pa. Cmwlth. 1987) (using the phrase realistically attached to the labor market ). While it appears that Claimant, who is representing herself, did not recognize that the Board was rephrasing an existing issue, it does appear that she genuinely believed she was responding to a new matter. Thus, we will not strike Claimant s reply brief based on a violation of Rule 2113(a). Second, the Board argues that Claimant attached extra-record documents to her reply brief. Claimant contends that the documents are not extra records 3

4 because the documents simply add definitions and explain the factual evidence that the Board overlooked. It is axiomatic that [t]his Court may not consider auxiliary information appended to a brief that is not part of the certified record on appeal. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995). Claimant did attach documents to her reply brief which are not part of the original record for reasons explained later in this opinion; therefore, this Court is not permitted to consider them. However, attachment of these documents does not require us to strike Claimant s reply brief in its entirety. Accordingly, for the foregoing reasons, we deny the Board s Motion to Strike. We now turn to the merits of Claimant s appeal. II. Merits Claimant worked as a server for Max & Erma s until February 27, 2013; she also worked for Home Depot. (Referee Decision, Finding of Fact (FOF) 1-2, R. Item 9.) Claimant left her employment to relocate with her husband, an active duty military member who was reassigned to a base in the southern United States. (FOF 3.) Claimant moved on March 3, 2013 to join her husband and she was pregnant with twins when she moved. (FOF 4.) On August 7, 2013, Claimant completed two separate Internet Initial Claims (Initial Claim) for UC benefits. (FOF 5.) On the Initial Claim listing Max & Erma s as her separating employer, Claimant answered no to the question Are 4

5 you able to work? and wrote, as an explanation for her answer, the following statement Child Care costs are too high-and currently pregnant with high[-]risk twins. (Initial Claim (Max & Erma s) at 4, R. Item 2; FOF 6.) Claimant also answered no to the question Are you available for work? and wrote as an explanation for her answer Not at this time ONLY. (Initial Claim (Max & Erma s) at 4.) Claimant stated further on the Initial Claim that there were restrictions and/or limitations with regard to the type of work she was seeking or willing to accept; specifically, Claimant stated that Child Care costs are a MAJOR factor in job position. (Initial Claim (Max & Erma s) at 4.) Finally, Claimant provided the following statement as additional information that she believed affected her eligibility for UC benefits I am currently unable to work due to the following reasons which I hope can be resolved in the near future can[ ]t afford child care pregnant with twins high risk no jobs available for hire Husband is Active Military Duty[.] (Initial Claim (Max & Erma s) at 4.) Claimant provided these same answers and explanations on the Initial Claim listing Home Depot as her separating employer. (Initial Claim (Home Depot) at 9, R. Item 2; FOF 7.) Claimant received a single Notice of Determination from the UC Service Center, dated August 28, 2013, denying her UC benefits beginning with the waiting week ending August 10, (Notice of Determination, R. Item 3.) The 4 We note that the Notice of Determination lists American Blue Ribbons Holdings, 400 West 48 th Avenue, Denver, Colorado, as Claimant s employer; however, American Blue Ribbons Holdings is listed in the certified record as Max & Erma s representative. (Notice of Determination, R. Item 3; Petition for Appeal from Determination, R. Item 4.) We note further that Claimant testified that she was not employed for the period of February 27, 2013 through September 5, 2013 the date she delivered her twins. (Hr g Tr. at 5-6, R. Item 8.) 5

6 Notice of Determination stated that, although Claimant was eligible for UC benefits under Section 402(b) of the Law because of her husband s military transfer, she was ineligible under Section 401(d)(1) of the Law because she was unable and unavailable to work. (Notice of Determination.) Claimant appealed, and a hearing before a Referee was held on October 7, (Petition for Appeal from Determination, R. Item 4; Notice of Hearing, R. Item 6.) Claimant participated in the hearing via telephone. A representative appeared on behalf of Max & Erma s and presented the testimony of its General Manager. Home Depot did not participate in the hearing. During the hearing Claimant attempted to submit, as evidence, a letter dated September 6, 2013 from her military health care provider purporting to show that she was able to work during her pregnancy. (Hr g Tr. at 2, R. Item 8.) Max & Erma s representative objected to the letter on the basis of hearsay, and the Referee omitted it on that basis. (Hr g Tr. at 2.) Claimant testified that, despite what she stated in her Initial Claims for UC benefits, she was able to work during her pregnancy, which was not high-risk, and she would have paid for child care in order to work. (Hr g Tr. at 3, 5.) Claimant also clarified that she learned she was pregnant in December 2012, left her employment in February 2013, and gave birth to her twins on September 5, (Hr g Tr. at 4.) In response to Claimant s contention that the letter she attempted to introduce into evidence supported her claim, the Referee explained to Claimant that, even if the letter was admissible, it would not have benefitted her claim 6

7 because it was dated September 6, 2013, one day after she delivered her twins, and weeks after the August 10, 2013 waiting week at issue. (Hr g Tr. at 8.) The Referee issued a Decision finding Claimant eligible under Section 402(b) of the Law, but ineligible under Section 401(d)(1) because she was not able and available to work for the waiting week ending August 10, (Referee Decision at 2, R. Item 9.) Claimant appealed the Referee s Decision to the Board. (Petition for Appeal from Referee s Decision/Order (Petition for Appeal), R. Item 10.) Claimant again attempted to submit the letter from her military health care provider by attaching it to her Petition for Appeal, and she also attempted to submit a letter from a civilian health care provider. (Petition for Appeal.) The Board adopted the Referee s findings of fact and conclusions of law and affirmed the Referee s denial of benefits pursuant to Section 401(d)(1) because Claimant was not able and available to work. (Board Order, R. Item 11.) The Board stated that for the week at issue, based on the claimant s own statements, she could not work due to a high-risk twin pregnancy. (Board Order.) Claimant now petitions this Court for review. 5 On appeal to this Court, Claimant argues that (1) she did not voluntarily quit her employment, but was compelled to leave because of her husband s military reassignment; and (2) that the Board improperly disregarded Claimant s evidence purporting to show that she was able and available to work. 5 Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014). 7

8 Claimant first offers extensive argument that she did not voluntarily leave her employment, but was compelled to leave in order to relocate with her family. Section 402(b) of the UC Law provides, in pertinent part, [a]n employe shall be ineligible for compensation for any week [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature P.S. 802(b). In situations where a claimant terminates employment due to a move to join a relocating spouse, the claimant s burden is satisfied if an economic hardship in maintaining two residences is demonstrated, or that a move has resulted in an insurmountable commuting problem. Glenn Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561, 564 (Pa. Cmwlth. 1995). The necessity to move must be caused by circumstances beyond the control of the claimant s spouse. Id. From the start, the UC Service Center determined that Claimant s move from Pennsylvania to join her husband at his new military assignment in Louisiana was a necessitous and compelling reason to leave her employment. (Notice of Determination, R. Item 3.) This determination has remained unchanged throughout the course of Claimant s appeal and the Board agreed with Claimant that she had a necessitous and compelling reason to leave her employment. Claimant was deemed eligible to receive benefits under Section 402(b) of the Law; therefore, Claimant was not denied benefits because she had to relocate. Instead, Claimant s ineligibility stems only from the Board s determination that she was not able and available to work as required by Section 401(d)(1) of the Law. Accordingly, Claimant was eligible for UC benefits pursuant to Section 402(b). 8

9 The salient issue in this matter is whether the Board erred in finding Claimant ineligible under Section 401(d)(1) for the waiting week ending August 10, While Claimant left her employment in early 2013, she did not file for UC benefits until August 7, As such, the issue was not why Claimant initially left her employment or whether she was able and available for work beginning in March The issue before the Board was whether Claimant was able and available for work for the waiting week ending August 10, It is undisputed that Claimant wrote on her Initial Claims that she was not able and available for work as of August 7, 2013 due to her high-risk pregnancy and child care costs. Notwithstanding the foregoing, Claimant asserts that the Board should have credited the testimonial evidence she presented during the hearing and should have weighed that evidence more heavily than the statements she made in her Initial Claims. Claimant argues that, at all times beginning with her separation from employment from Max & Erma s and Home Depot and throughout her entire pregnancy, she was able and available to work. In UC matters, the Board is the ultimate factfinder and may weigh evidence and make credibility determinations as seen fit. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). [T]he Board is free to reject the testimony of any witness, even uncontradicted testimony. Id. It is also within the Board s authority to resolve conflicts in the evidence. Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth. 2013). 9

10 Here, the Board was presented with conflicting evidence; specifically, Claimant s statements in her Initial Claims that she was not able or available to work versus Claimant s testimony during the hearing that she was, at all times, able and available to work. 6 Faced with this conflicting evidence, the Board chose to credit the statements in Claimant s Initial Claims over her testimony. When the Board resolves conflicts of evidence based on credibility determinations, this Court cannot disturb those credibility determinations or reweigh the evidence. Henderson, 77 A.3d at 718; Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 (Pa. Cmwlth. 2011). Thus, the fact that there is evidence cited by Claimant... which contradicts the Board s determinations... does not compel the conclusion that the Board s determinations should be reversed. Chapman, 20 A.3d at 610. Therefore, we decline to disturb the Board s decision to credit the statements in the Initial Claims and discredit Claimant s testimony. Claimant argues further that two different letters from her doctors should have been admitted into evidence and considered by the Board. Claimant 6 During the Referee s hearing, Claimant offered an explanation regarding the intent of the statements in her Initial Claims. When questioned by the Referee, Claimant stated that although twin gestations are normally classified as high-risk pregnancies, I was not a high-risk pregnancy, so I didn t feel the obligation to lie on my application. I didn t have any restrictions at work. (Hr g Tr. at 3.) Claimant asserted that, notwithstanding what she indicated on her Initial Claims, she was not unavailable for employment because she could not afford child care or because she was coping with a high-risk pregnancy. (Hr g Tr. at 4.) She testified that she was just stating facts. (Hr g Tr. at 4.) Claimant stated that, I had no restrictions. I guess what it s boiling down to is my honesty backfiring in my face as far as I mean I would have paid for child[]care necessary to work, and that she believed she would have been falsifying her application had she not listed her child care and pregnancy concerns in her Initial Claims. (Hr g Tr. at 5.) 10

11 attempted to submit the first letter, from her military doctor dated September 6, 2013, during the Referee s hearing. Max & Erma s representative objected to the letter on the basis that it was hearsay since the author of the letter was not present to testify. Claimant argues that the letter was improperly rejected by the Referee and should have been considered by the Board. However, the Board is not permitted to base findings on hearsay evidence when a party has properly objected to its admittance. Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa. 1993); Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). Therefore, the Board properly refused to consider the letter from Claimant s military doctor. Moreover, as stated previously, the Referee explained to Claimant that even if the letter was admissible it would not have benefitted her claim because it was dated September 6, 2013, one day after she delivered her twins, and the week at issue was the waiting week ending August 10, (Hr g Tr. at 8.) The Referee also informed Claimant that, if the military doctor had been present to testify at the hearing, he would have been able to ask the doctor questions regarding Claimant s ability to work, including whether Claimant was able and available for work one day after giving birth to twins. (Hr g Tr. at 8.) In other words, Claimant needed to submit competent evidence that she was able and available for work beginning the waiting week ending August 10, 2013, not as of September 6, The second letter, from Claimant s former civilian doctor, was not presented at the Referee s hearing, but was offered as evidence for the first time as an attachment to Claimant s Petition for Appeal. The Board s regulations govern the 11

12 taking of additional evidence. Pursuant to 34 Pa. Code , 7 the Board may direct the taking of additional evidence sua sponte. Pursuant to 34 Pa. Code , 8 if a claimant has additional evidence believed to be of importance, she may request that the Board grant a second hearing to offer the new evidence. In 7 Section states In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted, or direct the taking of additional testimony. In any case the Board may limit the parties to oral argument or the filing of a written argument or both. 34 Pa. Code Section states (a) Within 15 days after the issuance of the decision of the Board, as may be determined by the provisions of (relating to form and filing of application for further appeal from decision of referee), any aggrieved party may request the Board to reconsider its decision and if allowed, to grant further the opportunity to do the following (1) Offer additional evidence at another hearing. (2) Submit written or oral argument. (3) Request the Board to reconsider the previously established record of evidence. (b) The requests will be granted only for good cause in the interest of justice without prejudice to any party. The parties will be notified of the ruling of the Board on each request. The request for reconsideration and the ruling of the Board shall be made a part of the record and subject to review in connection with any further appeal to the Commonwealth Court. 34 Pa. Code

13 this matter, the Board neither sua sponte directed the taking of additional testimony in accordance with Section nor did Claimant make a request for a second hearing in order to submit new evidence pursuant to Section Therefore, the Board did not err by not considering the letter from Claimant s civilian doctor. 9 For the foregoing reasons, the Board s Order is affirmed. 10 RENÉE COHN JUBELIRER, Judge 9 Claimant has also filed with this Court a letter, which we shall treat as a Motion to Supplement the Record, again asking that these same documents be admitted into the record. However, for the same reasons stated in this opinion as to why the Board did not err in not admitting these documents into the record, Claimant s motion is denied. 10 We note that the determination at issue in this case is for the waiting week ending August 10, We are aware of no prohibition against Claimant, if she remains unemployed, filing another claim for benefits when she is able and available for work. 13

14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christine N. Maher, Petitioner v. No. 321 C.D Unemployment Compensation Board of Review, Respondent O R D E R NOW, September 9, 2014, it is hereby ORDERED as follows 1. The Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is AFFIRMED. 2. Upon consideration of the Unemployment Compensation Board of Review s Application for an Application for Relief in the Form of a Motion to Strike Claimant s Reply Brief and to Dismiss Claimant s Appeal (Motion to Strike) and the response thereto, the Motion to Strike is DENIED. 3. Upon consideration of the August 7, 2014 Letter filed by Christine N. Maher, which shall be treated as a Motion to Supplement the Record, requesting that this Court admit certain documents into the record, the Motion is DENIED. RENÉE COHN JUBELIRER, Judge