IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Maire Gibson, :

Petitioner :

 :

v. : No. 1732 C.D. 2018

 : Submitted: August 16, 2019

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: November 7, 2019

Nicole Maire Gibson (Claimant) petitions for review of a December 7, 2018

Order of the Unemployment Compensation (UC) Board of Review (Board) that 

adopted and affirmed the Referee’s Decision finding Claimant ineligible for benefits 

under Section 402(b) of the UC Law.

1 The Referee determined Claimant quit her

part-time employment without a necessitous and compelling reason based upon the 

record before the Referee because neither Claimant nor Springwood Hospitality 

d/b/a Hilton (Employer) appeared at the hearing. The Board subsequently refused 

to remand for a new hearing, concluding Claimant did not have a legally sufficient 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 

§ 802(b) (providing an employee is ineligible for compensation if the employee voluntarily left

work without cause of a necessitous and compelling nature).
2

reason for missing the first hearing. Further, because Claimant failed to appear for 

the first hearing, the Board agreed with the Referee that Claimant offered no 

competent evidence that she was terminated instead of voluntarily quit. Based on a 

review of the record, we are constrained to affirm.

I. BACKGROUND

Claimant was employed part-time by Employer as a housekeeper. On March 

25, 2018, Claimant filed a claim for UC benefits, indicating that she was discharged 

from her job with Employer without reason. (Internet Initial Claims, Certified 

Record (C.R.) Item 2.) Upon receipt of the claim, the local Service Center requested 

additional information through oral interviews from Claimant and Employer. 

Employer provided a statement that “she did not show up for her shift and she did 

not return manager[’s] calls she quit [sic].” (Employer Record of Oral Interview and 

Employer Questionnaire, C.R. Item 4.) In addition, Employer checked the voluntary 

quit box on the Employer Questionnaire. Claimant failed to respond to the local 

Service Center’s phone call or letter requesting a return phone call to discuss the 

reason for her separation from employment. (Claimant Record of Oral Interview 

and Request for Information, C.R. Item 5.) 

On April 13, 2018, the local Service Center issued a Notice of Determination, 

finding Claimant voluntarily quit for unknown reasons and because Claimant did not 

show she had a necessitous and compelling reason for quitting, she was ineligible 

for benefits under Section 402(b) of the UC Law. (Notice of Determination, C.R. 

Item 6.) 
3

A. Claimant’s Appeal to the Referee

On April 19, 2018, Claimant appealed the Notice of Determination to a 

Referee for a hearing regarding whether Claimant was discharged or voluntarily left 

work. (Claimant’s Petition for Appeal, C.R. Item 7.) A hearing was scheduled for 

10:15 a.m. on May 11, 2018, at the Harrisburg Referee Office. (Notice of Hearing, 

C.R. Item 9.) The Notice of Hearing provided that the parties “MUST report at least 

15 minutes prior to the designated hearing time to review the file.” (Id.) The Notice 

of Hearing further advised that “[i]f you are prevented from attending the scheduled 

hearing because of a compelling reason, you may request to have the hearing 

reopened.” (Id.) To do so, the Notice of Hearing advised that the party requesting 

the hearing to be reopened must “set forth specific reasons and circumstances that 

are alleged to constitute ‘proper cause’ for non-appearance at the scheduled 

hearing.” (Id.) 

According to a transcript of the hearing, the Referee convened the hearing on 

May 11, 2018, at 10:16 a.m. and closed the hearing at 10:21 a.m., with neither 

Claimant nor Employer appearing or contacting the Referee’s Office to seek a 

continuance or explain their non-appearance. (Hr’g Tr. at 1-2, C.R. Item 11.) In 

addition, the Referee noted that “[t]here’s also nothing in the hearing file to indicate 

that either party contacted the Referee’s Office prior to this scheduled start of today’s 

hearing to indicate that they were running late for the hearing.” (Id. at 1.) Based 

upon the competent documentary evidence of record, the Referee found that 

Employer provided information to the local Service Center that Claimant did not 

show up for her scheduled shifts or return the manager’s telephone calls. (Referee 

Decision at 2, C.R. Item 12.) Claimant, on the other hand, did not respond to the 

local Service Center’s request for additional information. Because Claimant did not 
4

appear to offer testimony or evidence related to her separation from employment, 

the Referee concluded there was not competent evidence of record to support a 

finding that Claimant quit for necessitous and compelling reasons. Accordingly, the 

Referee found Claimant was ineligible for benefits under Section 402(b) of the UC 

Law.2 

B. Claimant’s Appeal to the Board

Claimant appealed the Referee’s Decision to the Board.3 (Claimant’s Petition 

for Appeal, C.R. Item 15.) The Board noted that Claimant alleged she was five 

minutes late for the first hearing because she went to the wrong building. (Board 

Order, C.R. Item 22.) However, the Board found that the transcript showed the 

hearing closed at 10:21 a.m., six minutes after the hearing’s scheduled start time, 

with neither party appearing. The Board further found that the Notice of Hearing 

provided the correct address and advised parties to arrive 15 minutes early. The 

Board determined the excuse that Claimant went to the wrong location for her first 

 

2 The Referee also ruled that Claimant failed to meet the criteria under Unemployment 

Compensation Board of Review v. Fabric, 354 A.2d 905 (Pa. Cmwlth. 1976), as Claimant was not 

in open-claim status at the time of separation, thus she did not qualify for any benefits. An 

employee who quits a part-time job without a necessitous and compelling reason can only be 

disqualified to the extent of the potential earnings. Id. at 908. In Fabric, we ruled an employee is 

only eligible for benefits if she is in open-claim status and receiving partial benefits at the time of 

separation. Id. at 907-08.

3 Claimant’s appeal was filed May 30, 2018, one day late. On June 5, 2018, the Board 

notified Claimant that the appeal was untimely and advised Claimant that she could request a 

hearing on the timeliness issue, which Claimant did. (Board’s Response to Late Appeal, C.R. Item 

16; Claimant’s Request for a Remand Hearing, C.R. Item 17.) On July 16, 2018, a hearing was 

held at which Claimant testified that her landlord had stopped her mail at her previous address and 

prevented Claimant from receiving the Referee’s Decision. The Board credited Claimant’s 

testimony that she did not receive the Referee’s Decision and found Claimant’s late appeal was 

due to non-negligent circumstances. (Board Order, C.R. Item 22.) Therefore, the Board 

considered Claimant’s appeal on its merits.
5

hearing was legally insufficient to justify her nonappearance. Thus, the Board 

denied Claimant’s remand request and determined that the Referee’s Decision was 

proper. The Board adopted and incorporated the Referee’s findings and conclusions 

as its own and affirmed the Decision of the Referee. 

II. PARTIES’ ARGUMENTS

On appeal,4 Claimant argues the merits of her underlying appeal and that there 

was an excuse for her lack of appearance at the hearing with the Referee. 

(Claimant’s Amended Brief (Br.) at 3, 8.) Before this Court, Claimant argues that 

she was three minutes late to the first hearing with the Referee as she went to the 

wrong building. (Id. at 8.) Claimant notes that there is not proof that Claimant 

voluntarily quit under Section 402(b) of the UC Law. Claimant argues that the 

Referee made a mistake when rendering the Decision, based on the facts presented. 

The Board responds that going to the wrong location is negligent conduct and 

cannot be a proper excuse for Claimant’s nonappearance as a matter of law. (Board’s 

Br. at 4.) The Board also asserts that Claimant failed to provide any competent 

evidence that Claimant was terminated. The Board notes that Employer denied 

Claimant’s assertion that she was terminated. As Claimant failed to appear for the 

hearing, Claimant also did not provide any evidence contrary to Employer’s 

statement or that she had a necessitous and compelling reason to quit. Therefore, 

the Board argues it did not err when it declined to remand for additional testimony 

and denied Claimant UC benefits. 

 

4

“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 Comp. Bd. of Review, 87 A.3d 1006, 

1009 n.2 (Pa. Cmwlth. 2014).
6

III. CLAIMANT’S FAILURE TO ATTEND HEARING

Section 101.51 of the Board’s regulations provides: 

If a party notified of the date, hour and place of a hearing fails to attend 

a hearing without proper cause, the hearing may be held in [the 

party’s] absence. In the absence of all parties, the decision may be 

based upon the pertinent available records. The tribunal may take such 

other action as may be deemed appropriate. 

34 Pa. Code § 101.51 (emphasis added). Referees are to decide a case on its merits, 

even in the absence of both parties. Gadsden v. Unemployment Comp. Bd. of Review, 

479 A.2d 74, 76 (Pa. Cmwlth. 1984). In addition, Section 101.24(a) of the Board’s 

regulations provides:

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 [the party’s] failure 

to attend the hearing was for reasons which constitute ‘proper cause,’

the case shall be reopened.

34 Pa. Code § 101.24(a). 

Claimant argues she went to the wrong building and was three minutes late

but should still receive a hearing to argue the merits of her unemployment claim as 

to whether she was terminated or voluntarily quit. The Board denied her remand 

request for a hearing on the merits, as the Notice of Hearing directed the parties to 

the correct address and informed them to arrive 15 minutes prior to the hearing time. 

(Board Order.)

Proper cause is shown if the claimant never receives the notice because it was 

not sent to the claimant’s last known address. Gadsden, 479 A.2d at 76. A lack of 

proper notice of a hearing is not negligent conduct by the claimant so long as the 

correct address was entered or updated by the claimant. Id. at 75. In contrast, this 
7

Court has held that a claimant’s own negligence is not sufficient proper cause to 

justify a failure to appear. Savage v. Unemployment Comp. Bd. of Review, 491 A.2d 

947, 950 (Pa. Cmwlth. 1985). In DiBello v. Unemployment Compensation Board of 

Review, 197 A.3d 819, 822 (Pa. Cmwlth. 2018), the claimant filed an untimely 

appeal after noticing that the employer failed to submit the correct number of weeks 

worked. Id. We held a claimant’s negligent reading of a notice does not constitute 

proper cause as a matter of law to justify a claimant’s failure to appear. Id. 

In the case before us, Claimant went to the wrong address, due to her own 

fault, and failed to attend the hearing. There is no evidence in the record that she 

attempted to contact the Referee’s Office to let it know she was going to be late. 

Claimant’s negligence is not proper cause to justify a new hearing or relief. Based 

on the above stated facts of this case, we cannot find the Board erred in denying a 

remand request as Claimant’s excuse that she went to the wrong building was not a 

legally sufficient reason justifying her non-appearance at the initial hearing.

IV. COMPETENT EVIDENCE

Claimant bears the burden to prove with competent evidence that Claimant 

has a right to UC benefits by: (1) proving that Claimant’s separation was 

involuntary; or (2) proving Claimant had a necessitous and compelling reason to 

quit. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859-60 (Pa. 

Cmwlth. 2004). Before the hearing, in her “Internet Initial Claims,” Claimant

asserted that she was discharged from her job without reason. (C.R. Item 2.) 

Claimant failed to respond to the local Service Center’s requests for additional 

information related to her separation from employment. (C.R. Item 5.) 
8

Because Claimant failed to attend the hearing, the Referee decided the matter 

based upon the record. The only evidence of record was Employer’s statement that 

Claimant did not show up for her shifts or return manager’s calls, which Employer 

considered as evidence that Claimant voluntarily quit. (C.R. Item 4.) Claimant did 

not demonstrate either that her separation from Employer was involuntary or that 

she had a necessitous and compelling reason to quit. Thus, the Referee and Board 

did not err when they found Claimant ineligible for benefits under Section 402(b) of 

the UC Law.

V. CONCLUSION

Claimant bears the ultimate burden to prove the merits of her claim, but she 

has not proffered any evidence in this case to meet that burden. Claimant argued

that she should have been given a hearing to provide evidence that she had an excuse 

for failing to timely attend the hearing that was provided to her. However, 

Claimant’s excuse that she accidentally went to another building causing her to run

late is not non-negligent conduct and, therefore, not proper cause to warrant a new 

hearing. Thus, the Board did not err in denying Claimant’s request for remand to 

receive a new hearing on the merits of her appeal. As we are constrained by the 

record before us and Claimant’s lack of evidence, we must affirm the Board’s Order

adopting and affirming the Referee’s Decision that Claimant was ineligible for 

benefits under Section 402(b) of the UC Law.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Maire Gibson, :

Petitioner :

 :

v. : No. 1732 C.D. 2018

 : 

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

NOW, November 7, 2019, the Order of the Unemployment Compensation 

Board of Review, dated December 7, 2018, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge