IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy J. Snell,                                      :
                             Petitioner            :
                                                   :
                      v.                           :
                                                   :
Unemployment Compensation                          :
Board of Review,                                   :       No. 109 C.D. 2019
                    Respondent                     :       Submitted: May 17, 2019

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: August 8, 2019

              Amy J. Snell (Claimant), pro se, petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) December 31, 2018
order affirming the Referee’s decision denying Claimant UC benefits under Sections
401(d)(1) and 402(b) of the UC Law (Law).1 Essentially, the issues before this Court
are whether the UCBR erred by concluding that Claimant is ineligible for UC
benefits under Sections 401(d)(1) and 402(b) of the Law, and by denying Claimant’s
reconsideration request (Reconsideration Request).2 After review, we affirm.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(d)(1) (referring to ability and availability for suitable work), 43 P.S. § 802(b) (referring to
voluntarily leaving work without a necessitous and compelling reason).
       2
         Claimant lists four issues in her Statement of the Questions Involved in her brief to this
Court. The first three listed issues pertain exclusively to whether Claimant had a necessitous and
compelling reason to terminate her employment and whether she was able and available for work.
See Claimant Br. at 5-6. The fourth issue refers to her nonappearance at the remand hearing, which
was the subject of Claimant’s Reconsideration Request, and which the UCBR had not yet ruled
upon at the time of Claimant’s appeal to this Court. See Claimant Br. at 7. For clarity and ease of
reference, the Court has reframed Claimant’s enumerated issues which are subsumed therein.
              Claimant was employed full-time as a Medical Management Nurse II by
Capital Blue Cross (Employer) until July 6, 2018, when she voluntarily terminated
her employment to care for her husband. Claimant applied for UC benefits and stated
in her UC application that her husband had suffered strokes, was permanently
disabled, and required 24-hour care.3 See Certified Record (C.R.) Item 2, Internet
Initial Claims at 3. Claimant also explained therein that, prior to terminating her
employment, she discussed modifying her schedule with Employer so she could
transport her husband to his scheduled therapy appointments, but Claimant and
Employer could not reach a workable solution. See id.
              On September 13, 2018, the Altoona UC Service Center issued a
determination (Determination) denying Claimant UC benefits because, although she
was eligible for UC benefits under Section 402(b) of the Law, she was ineligible
under Section 401(d)(1) of the Law. Claimant timely appealed. On September 28,
2018, a notice scheduling a Referee hearing for October 12, 2018 (Initial Hearing
Notice) was sent to Claimant at her home address.                  Neither the Claimant nor
Employer appeared at the October 12, 2018 hearing (Initial Hearing).4 Because there
was no record evidence that Claimant terminated her employment for a necessitous
and compelling reason, and that Claimant was able and available to work, the Referee
reversed the Determination to the extent the UC Service Center found that Claimant
was eligible for UC benefits under Section 402(b) of the Law, and affirmed the
Determination finding Claimant ineligible under Section 401(d)(1) of the Law
(Decision).


       3
          Claimant further responded that she was not able to work because “I am needed to care for
my husband who is permanently disabled and requires 24 hour supervision/care[,]” and she was not
available for work because “I am the primary caregiver to my permanently disabled husband status
post [sic] two strokes on 4/3/18[.]” C.R. Item 2, Internet Initial Claims at 5.
        4
          On October 3, 2018, Employer notified the Referee that it would not participate in the
hearing.
                                                2
              On October 19, 2018, Claimant appealed to the UCBR, alleging she had
not received the Initial Hearing Notice, and requested her case be reopened and a new
hearing be held (October 19, 2018 Appeal Petition). On November 7, 2018, the
UCBR ordered that a hearing be held to receive testimony and evidence relative to
Claimant’s reason for not appearing at the Initial Hearing and regarding the merits of
her UC eligibiltiy (Remand Hearing). On November 15, 2018, the UCBR mailed the
Remand Hearing notice to Claimant at her home address (Remand Hearing Notice).
Again, neither the Claimant nor Employer appeared at the November 28, 2018
Remand Hearing.5         On December 31, 2018, the UCBR affirmed the Referee’s
Decision (December 31, 2018 Order) because Claimant did not appear at the Remand
Hearing and, thus, failed to demonstrate that she had proper cause for not attending
the Initial Hearing.
              On January 5, 2019, Claimant filed her Reconsideration Request with
the UCBR (Reconsideration Request), claiming she did not receive the Remand
Hearing Notice until the scheduled Remand Hearing date because her mail carrier
routinely delivered her mail to the incorrect mailbox. On January 22, 2019, Claimant
appealed from the UCBR’s Order to this Court.6 By January 30, 2019 order, the
UCBR denied Claimant’s Reconsideration Request. See C.R. Item 22, Ruling on
Reconsideration Request.
              In her brief to this Court, Claimant explains that she was unable to attend
the hearings because she did not receive notice. Further, she asserts that she is
eligible for UC benefits because she is able and available to work and had a


       5
         On November 20, 2018, Employer notified the Referee that it would not participate in the
Remand Hearing.
       6
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
                                                 3
necessitous and compelling reason to terminate her employment, given her husband’s
medical condition and her unsuccessful attempt to work with Employer to modify her
position and schedule to enable her to continue to work and care for her husband’s
needs.
             Claimant admits in her brief that she received the Remand Hearing
Notice on November 28, 2018, the same day as the Remand Hearing.
Notwithstanding, Claimant did not contact the UCBR about the missed hearing or
request another hearing until January 5, 2019, 38 days after the Remand Hearing and
five days after the UCBR issued its December 31, 2018 Order affirming the
Determination. Therefore, the UCBR contends that Claimant failed to comply with
Section 101.24(a) of the UCBR’s Regulations, which pertains to the reopening of
hearings and states, in relevant part: “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 h[er] failure to
attend the hearing was for reasons which constitute ‘proper cause,’ the case shall be
reopened.” 34 Pa. Code § 101.24(a) (emphasis added).
             However, Claimant’s delay did not foreclose her right to request that the
hearing be reopened. Section 101.24(d) of the UCBR’s Regulations provides in
pertinent part:

             If a request for reopening is not received before the decision
             was mailed but is received or postmarked within 15 days
             after the decision of the [UCBR] was mailed to the
             parties, it will be accepted as a request for
             reconsideration and a reopening of the hearing and the
             [UCBR] will rule upon the request.

34 Pa. Code § 101.24(d) (emphasis added).7


         7
          Similarly, Section 101.111 of the UCBR’s Regulations (pertaining to UCBR
reconsideration) specifies:
                                           4
              In the instant matter, in accordance with Section 101.24(d) of the
UCBR’s Regulations, on January 5, 2019, within 15 days of the UCBR mailing its
December 31, 2018 Order, Claimant asked the UCBR to reopen the hearing. As in
her first request following the Initial Hearing, Claimant alleged in her
Reconsideration Request that she missed the Remand Hearing because she had not
received notice thereof. Pursuant to Section 101.24(d) of the UCBR’s Regulations,
the UCBR “accepted [Claimant’s request] as a request for reconsideration and a
reopening of the hearing . . . .” 34 Pa. Code. § 101.24(d).
              This Court’s scope of review of an agency’s denial of a reconsideration
request is whether the agency abused its discretion. J.B. Steven, Inc. v. Dep’t of
Transp., 627 A.2d 278 (Pa. Cmwlth. 1993). This Court has explained that “[a]n
abuse of discretion occurs if, in reaching a conclusion, the law is overridden or
misapplied or judgment exercised is manifestly unreasonable or is the result of
partiality, prejudice, bias, or ill will. An abuse of discretion is not merely an error of



              (a) Within 15 days after the issuance of the decision of the [UCBR],
              as may be determined by the provisions of [Section] 101.102 [of the
              UCBR’s Regulations, 34 Pa. Code § 101.102] (relating to form and
              filing of application for further appeal from decision of referee), any
              aggrieved party may request the [UCBR] 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 [UCBR] 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 [UCBR] on each such request. The request for
              reconsideration and the ruling of the [UCBR] 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 § 101.111 (emphasis added).
                                                5
judgment.” Henderson v. Unemployment Comp. Bd. of Review, 77 A.3d 699, 713
(Pa. Cmwlth. 2013) (citation omitted).
               In its brief to this Court, the UCBR states:

               In her brief to the Court, Claimant asserts that she had
               difficulty receiving mail at her residence, and that she did
               not receive notice of the remand hearing until the date of
               the hearing. (Claimant’s Br. at 11, 12) Notably, however,
               Claimant made no effort to contact the [UCBR] between the
               November 28, 2018, hearing and issuance of the [UCBR’s]
               December 31, 2018, order to report that she allegedly did
               not receive notice.

UCBR Br. at 7-8. As evidenced by the fact that Claimant emailed her appeal from
the Referee’s decision within three days of the mailing date, Claimant was well aware
of the significance of the timeliness of her appeal.8 Notwithstanding, knowing that
the UCBR would have no reason to reverse the Referee’s decision if she did not
appear, Claimant did not notify the UCBR of her allegedly untimely receipt of her
hearing notice until a full 38 days after she received the Remand Hearing Notice.
Because Claimant waited until after the UCBR issued its order (i.e., over a month
after she received the Remand Hearing Notice) to request that her hearing be
reopened, this Court is constrained to conclude that the UCBR did not abuse its
discretion by denying Claimant’s Reconsideration Request.9




       8
          Further, Claimant’s appeal from the Determination was received by the UCBR 2 days after
the Determination’s mailing date; Claimant emailed her Reconsideration Request within 5 days of
the mailing date of the UCBR’s December 31, 2018 Order (one of those days being a holiday); and
Claimant mailed her appeal to this Court within 7 days of the mailing date of the UCBR’s letter,
stating that, although it received her Reconsideration Request, Claimant still had the right to appeal
to this Court.
        This Court finds it interesting that the only correspondence Claimant allegedly either did not
receive or received untimely were the two hearing notices.
        9
          Because Claimant did not appear at either hearing, the UCBR properly concluded that
Claimant did not meet her burden of proving her eligibility for UC benefits.
                                                  6
For all of the above reasons, the UCBR’s order is affirmed.



                         ___________________________
                         ANNE E. COVEY, Judge




                             7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy J. Snell,                            :
                       Petitioner        :
                                         :
                 v.                      :
                                         :
Unemployment Compensation                :
Board of Review,                         :     No. 109 C.D. 2019
                    Respondent           :


                                    ORDER

            AND NOW, this 8th day of August, 2019, the Unemployment
Compensation Board of Review’s December 31, 2018 order is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge