IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friendship Community, Inc., :

Petitioner :

:

 v. :

:

Unemployment Compensation :

Board of Review, : No. 1553 C.D. 2019

Respondent : Submitted: May 11, 2020

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE COVEY1 FILED: September 11, 2020

Friendship Community, Inc. (Employer) petitions this Court for review 

of the Unemployment Compensation (UC) Board of Review’s (UCBR) October 8, 

2019 order affirming the Referee’s decision granting Bethany N. Young (Claimant) 

UC benefits under Sections 401(d)(1) and 402(b) of the UC Law (Law).2

Essentially, Employer presents two issues for this Court’s review: (1) whether 

Claimant was disqualified from receiving benefits under Section 401(d)(1) of the 

Law; and (2) whether Claimant was ineligible for UC benefits under Section 402(b) 

of the Law.

3

 

 

1 This matter was reassigned to the author on June 29, 2020.

2 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).

3 Employer presents four additional issues in its Statement of Questions Involved regarding 

the Referee’s finding of facts; see Employer Br. at 4-5, however, the UCBR, as the “ultimate factfinder,” made its own findings of fact and those are the findings before this Court. Ductmate 

Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
2

Employer employed Claimant as a full-time, direct caregiver working

overnight shifts beginning January 17, 2011. Employer approved Claimant for 

intermittent time off from work due to migraines under the Family and Medical 

Leave Act (FMLA).4 After December 2, 2018, Claimant was off work on an 

approved continuous FMLA leave of absence (FMLA leave) due to having foot 

surgery on December 4, 2018. In December 2018, Claimant spoke to Employer’s 

human resource director and they agreed that Claimant would not return to working 

overnight shifts due to the interruption of Claimant’s sleep pattern and the frequency 

of her migraines. On or about February 22, 2019, Claimant exhausted her original 

FMLA leave. Employer informed Claimant that it had posted her overnight direct 

caregiver job, and that she should apply for other available positions within 

Employer’s company when she was released to return to work.

On March 20, 2019, Claimant’s doctor released her to return to work

without restrictions. However, Claimant informed Employer that she was not fully 

healed or ready to return to work in a caregiver position. Claimant requested an 

office position and Employer advised her to check Employer’s employment website 

to apply for that type of position. Employer then granted Claimant an extension of 

her FMLA leave until May 22, 2019. On May 22, 2019, Claimant resigned from her 

employment.

Claimant applied for UC benefits on March 17, 2019, for waiting week

ending March 23, 2019. On June 11, 2019, the Harrisburg Overflow Center (UC 

Service Center) determined that Claimant was eligible for UC benefits under Section 

402(b) of the Law, but ineligible for UC benefits under Section 401(d)(1) of the Law. 

Claimant appealed and a Referee hearing was held. On July 24, 2019, the Referee 

 

4 29 U.S.C. §§ 2601-2654.
3

affirmed the UC Service Center’s determination in part and reversed in part, finding 

Claimant eligible for UC benefits under both Sections 402(b) and 401(d)(1) of the 

Law. Employer appealed to the UCBR. On October 8, 2019, the UCBR affirmed 

the Referee’s decision. Employer appealed to this Court.5

Employer argues that the UCBR erred by concluding that Claimant was 

not disqualified from receiving UC benefits under Section 401(d)(1) of the Law. 

This Court has explained:

Section 401(d)(1) of the Law provides, in part, 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.’ The burden of proving 

availability for suitable work is on the claimant. An 

unemployed worker who registers for unemployment is 

presumed to be able and available for work. This 

presumption is rebuttable by evidence that a claimant’s 

physical condition limits the type of work [s]he is 

available to accept or that [s]he has voluntarily placed 

other restrictions on the type of job [s]he is willing to 

accept. If the presumption of availability is rebutted, 

the burden shifts to the claimant to produce evidence

that [s]he is able to do some type of work and that there 

is a reasonable opportunity for securing such work.

‘The real question is whether Claimant has imposed 

conditions on [her] employment which so limit [her]

availability as to effectively remove [her] from the 

labor market.’ Harwood v. Unemployment Comp. Bd. of 

Review, . . . 531 A.2d 823, 826 ([Pa. Cmwlth.] 1987).

Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237, 242-43 (Pa. Cmwlth. 

2011) (emphasis added; citations omitted). 

 

5

“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).
4

Here, the UCBR found as a fact: “On March 20, 2019, [] [C]laimant 

was released by her doctor to return to work without restrictions. However, [] 

[C]laimant informed [] [E]mployer that she was not fully healed or ready to return 

to work in a caregiver position.” UCBR Dec. at 2, Finding of Fact 6 (emphasis 

added). Because Claimant “voluntarily placed . . . restrictions [on returning to work 

and] on the type of job [s]he [was] willing to accept[,]” the presumption of 

availability was rebutted. Rohde, 28 A.3d at 243. “[T]he burden [then] shift[ed] to 

[C]laimant to produce evidence that [s]he [was] able to do some type of work and 

that there is a reasonable opportunity for securing such work.” Id. (emphasis 

added).

With respect to Claimant’s ability to work, the UCBR concluded 

“[C]laimant testified that she was able to perform office type work for the week at 

issue. Therefore, [] [C]laimant is not disqualified from receiving [UC] benefits 

under Section 401(d)(1) of the Law.” UCBR Dec. at 3. Notwithstanding, Claimant 

was still required to meet her burden of proving that she was available. “To be 

considered ‘available’ for purposes of eligibility for unemployment compensation, 

a claimant must be ready, willing and able to accept either temporary or permanent 

suitable employment at any time by another employer and be actually and 

currently attached to the labor force.” Craig v. Unemployment Comp. Bd. of 

Review, 442 A.2d 400, 402 (Pa. Cmwlth. 1982) (emphasis added). 

The factual circumstances in the instant matter are similar to those in 

Wincek v. Unemployment Compensation Board of Review, 439 A.2d 890 (Pa. 

Cmwlth. 1982). Therein, a fast food employee informed her supervisors that she 

was pregnant and that her attending physician advised that she engage in only 

sedentary employment. After considering whether the claimant could perform her 
5

duties while seated on a stool, the parties determined that the claimant should take a 

leave of absence until released from the medical restrictions and then return to her

job at the restaurant. Thereafter, the claimant applied for UC benefits and her 

application was denied. The claimant appealed to this Court, which remanded the 

matter to the UCBR to determine, inter alia, whether the claimant’s leave of absence 

was voluntary or involuntary. The UCBR held an evidentiary hearing and 

determined that because the claimant’s leave was directed by the employer, it was 

involuntary. Notwithstanding, the UCBR found that the claimant was not available 

for work during the leave of absence and therefore, the UCBR denied UC benefits. 

The claimant again appealed to this Court.

Finding the presumption rebutted, the Court explained:

We have consistently held that the presumption of 

availability ‘is rebuttable by evidence that a claimant’s 

physical condition limits the type of work he is available 

to accept.’ Pizzo v. Unemployment Comp[.] B[d.] of 

Review, . . . 424 A.2d 1021, 1023 ([Pa. Cmwlth.] 1981). 

For example[,] in Chapman v. Unemployment 

Compensation Board of Review, . . . 414 A.2d 174 ([Pa. 

Cmwlth.] 1980)[,] where the claimant’s lung condition 

limited his job availability to ‘sedentary, clean air 

endeavors[s]’ and in Baker v. Unemployment 

Compensation Board of Review, [336 A.2d 671 (Pa. 

Cmwlth. 1975)], where the claimant’s allergies limited her 

availability to part-time work of a sedentary nature, and in 

Unemployment Compensation Board of Review v. Patsy,

[345 A.2d 785 (Pa. Cmwlth. 1975)], where the claimant’s 

fractured leg limited him to sedentary jobs, we held the 

presumption of availability to be rebutted. It was 

reasonable and in complete accord with the decisions of 

this Court for the [UCBR] to conclude that the 

presumption was similarly unavailable to the claimant in 

this case. 

Wincek, 439 A.2d at 892 (citations and footnote omitted).
6

The Court further explained:

[A]s we wrote in Pizzo . . . : 

[o]nce the presumption is rebutted it 

disappears and has no further effect upon the 

outcome of the case. Following a rebuttal of 

the presumption, a claimant must produce 

evidence that he is able to do some work 

and that there is a reasonable opportunity 

for securing such work.

Id. . . . at 1022 [(emphasis added; citations omitted)]. The 

[UCBR]’s legal conclusion that it was the claimant’s 

burden to show the existence of local employment 

opportunities within her limitations was not in error.

No evidence was introduced at the referee’s hearings 

in an attempt to show the availability of jobs for which 

the claimant was suited. Indeed, the only evidence on 

this issue is the claimant’s testimony that her inquiries of 

friends and other establishments failed to disclose a single 

job opening. 

Wincek, 439 A.2d at 892 (emphasis added). 

Relying on Pennsylvania Electric Co. v. Unemployment Compensation 

Board of Review, 458 A.2d 626 (Pa. Cmwlth. 1983), the UCBR asserts that “[a]

claimant who requests other work and is placed on an unpaid leave of absence, is 

available for purposes of the Law.” UCBR Br. at 18. However, in Pennsylvania 

Electric, the Court concluded that the presumption of availability had not been 

rebutted, explaining that “a person may not be disqualified for benefits based solely 

upon the brevity of his unemployment or his intention to return to work for the same 

employer.” Penn. Electric, 458 A.2d at 628 (emphasis added).6 Consequently, if 

 

6

In support of this declaration, the Pennsylvania Electric Court cited to the Pennsylvania 

Supreme Court’s decision in Penn Hills School District v. Unemployment Compensation Board of 
7

other reasons exist that support the conclusion that a claimant has removed herself 

from the job market, she may be disqualified from receiving benefits. See McCall 

v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 197 C.D. 2019, filed 

December 5, 2019).7 Thus, contrary to the UCBR’s assertion, a claimant who 

requests other work and is placed on an unpaid leave of absence is not available for 

purposes of the Law if other evidence demonstrates that she has removed herself 

from the job market. 

In the instant matter, unlike the facts in Pennsylvania Electric, the 

presumption of availability was rebutted because Claimant limited her employment 

to office work with Employer.

8

 However, Claimant did not show that there was any 

opportunity to secure such work. In Pennsylvania Electric, the claimant requested 

other work from the employer and also “testified that she interviewed with job 

counselors from the Bureau of Employment Security and looked in newspapers to 

see what jobs were available.” Id. at 628. Here, after Employer directed Claimant 

to its website, she searched Employer’s office position job postings but did not apply 

for any of the office positions because “a lot of the positions [she] wanted in the 

office would [sic] ask for a bachelor’s degree, which [she] do[es] not have.”9 

 

Review, 437 A.2d 1213 (Pa. 1981). However, in Penn Hills, the presumption of availability was 

not rebutted as it was herein. 

7 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. McCall is cited herein for its persuasive 

value.

8 Notably, on Claimant’s Internet Initial Claims form, completed on March 18, 2019, 

Claimant was specifically asked: “Are you able to work?”; Certified Record (C.R.) Item 1 at 4, 

Claimant responded no, “[n]ot yet cleared by my doctor but should be during my next 

[appointment] on April 3.” Id. In addition, on March 25, 2019, Claimant responded on her 

“Claimant Questionnaire” as follows: “Were you capable of doing the other work? No. Post 

surgery I am unable to perform my job tasks.” C.R. Item 3 at 2. 

9 Claimant’s testimony undermines the Board’s factual finding that “the only office work 

positions available required a bachelor’s degree which [Claimant] does not possess.” UCBR Dec. 
8

Reproduced Record (R.R.) at 9a (emphasis added). That is the full extent to which 

Claimant attempted to attach to the labor force. Thus, Pennsylvania Electric is 

inapposite. Claimant admitted that she did not have the qualifications for the job 

type she wanted with Employer and, as in Wincek, offered no evidence of any effort 

to join the local labor market by searching for jobs outside of Employer or to even 

make it known to the labor market that she was available to work. 

The record evidence reflects that Claimant first restricted her 

availability by limiting her work to daytime positions due to migraines. She further 

restricted her availability when, as the UCBR found, despite her doctor’s release 

with no work restrictions, she refused caregiving positions because she was not fully 

healed or ready to return to work in a caregiver position. Claimant expounded that

“having fibromyalgia and migraines and arthritis, [she] didn’t want to move into a 

direct care position again, in a home that would have a lot of moving and lifting.” 

R.R. at 9a. Claimant again restricted her availability by strictly limiting her search

to office jobs with Employer. Importantly, Claimant sought such office jobs only

with Employer, and only those office jobs she desired, notwithstanding that she 

lacked the necessary qualifications. Claimant admitted: “whenever I looked at a 

position . . . , my experiences . . . weren’t at a certain level of experience or [] it 

required a bachelor’s [degree] and so, I never felt that I could apply and get offered 

an interview. So, I wouldn’t apply.” R.R. at 11a. Despite the fact that it was 

Claimant’s burden to offer evidence to establish she was available for work, she

presented no evidence regarding Employer’s other available office positions or those 

office positions for which she was qualified. Claimant only testified to those 

positions she wanted and for which she was not qualified.

 

at 2, Finding of Fact 7 (emphasis added). Claimant’s statements reveal that not all of Employer’s 

office positions required a bachelor’s degree, but simply those office positions she desired. 
9

By limiting her job search only to certain office positions with 

Employer, despite knowing she did not qualify for those positions, Claimant 

effectively hid her availability from the local labor market and imposed conditions 

“so restrictive as to preclude a reasonable opportunity for employment.” Sorace v. 

Unemployment Comp. Bd. of Review, 437 A.2d 1316, 1318 (Pa. Cmwlth. 1981). 

Having placed such significant restrictions on her availability, Claimant failed to 

show “that there are jobs available that [s]he would be able to perform and that these 

same jobs are reasonably available to [her].” McCall, slip op. at 8 (emphasis 

added). There is simply no substantial evidence that Claimant was “realistically 

attached to the local labor market.” Wincek, 439 A.2d at 893. Thus, Claimant did 

not satisfy her burden of proving she was available for suitable work. Accordingly, 

the UCBR erred by concluding that Claimant was not disqualified from receiving 

UC benefits under Section 401(d)(1) of the Law.10

For all of the above reasons, the UCBR’s order is reversed.

 ___________________________

ANNE E. COVEY, Judge

 

10 Because Claimant is disqualified from receiving UC benefits under Section 401(d)(1) of 

the Law, the Court need not address Employer’s argument concerning Claimant’s disqualification 

under Section 402(b) of the Law. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friendship Community, Inc., :

Petitioner :

:

 v. :

:

Unemployment Compensation :

Board of Review, : No. 1553 C.D. 2019

Respondent :

 O R D E R

AND NOW, this 11th day of September, 2020, the Unemployment 

Compensation Board of Review’s October 8, 2019 order is reversed.

 ___________________________

ANNE E. COVEY, Judge