IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ashely M. Kearsley, :

Petitioner :

:

v. : No. 294 C.D. 2017

: Submitted: July 14, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: November 28, 2017

Ashely M. Kearsley (Claimant), representing herself, petitions for 

review from an order of the Unemployment Compensation Board of Review (Board) 

denying her unemployment compensation (UC) benefits because she did not satisfy 

the financial eligibility requirements of Section 401(a) of the Unemployment 

Compensation Law (Law).1 In so doing, the Board reversed the referee’s decision. 

She contends the Board erred in excluding wages she earned from Kaleidoscope 

Family Solutions, Inc. (KFS) based on insufficient proof. She asserts she submitted 

her pay stubs to the Department of Labor and Industry (Department) as required, 

providing proof of her base year earnings throughout the proceedings. She also argues 

the Board erred in ignoring her sworn testimony as to her earnings. Based on gaps in 

the record, we vacate and remand for further proceedings.

 

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

§801(a).
2

I. Background

Claimant worked as a special education teacher for KFS. Relevant here, 

she previously applied for UC benefits in June 2015, naming KFS as her employer. 

The Erie UC Service Center issued a determination finding she was ineligible because 

she was self-employed. In August 2015, a referee held a hearing to discern whether 

Claimant was self-employed or was employed by KFS. KFS did not appear. The 

referee determined Claimant “was not self-employed under Section 402(h) and

Section 4(l)(2)(B) of the [Law].” Bd. Op., 2/24/17, Finding of Fact (F.F.) No. 1; 

Certified Record (C.R.) at Item No. 9 (Clmt. Ex. 1). Significantly, KFS did not appeal 

that determination. As a result, the referee’s August 2015 decision became final and

binding on KFS under Section 509 of the Law, 43 P.S. §829. 

As to this UC claim, Claimant stopped working for KFS on February 10, 

2016. At that time, the Therapeutic Center at Fox (Therapeutic Center) hired her 

directly in the same teaching position for the Villa Academy. She continued teaching 

for the Therapeutic Center until June 17, 2016, when the program ended and she was 

laid off. She applied for UC benefits on July 6, 2016. 

Excluding wages from KFS, the Erie UC Service Center found her 

financially ineligible for UC benefits on July 12, 2016 (July Determination). See C.R. 

at Item No. 3. The July Determination showed only wages in the first quarter of 2016 

from the Therapeutic Center, in the amount of $4,683. Claimant timely appealed on 

July 18, 2016, alleging missing wages from KFS (First Appeal). F.F. No. 9; see

Pet’r’s Br. at App. D. 
3

From the submissions and findings, it appears the Harrisburg office 

received her First Appeal on July 27, 2016.2 An email dated August 8, 2016, directed 

to “LI, UCP-UCSC-Erie” states: “Claimant called to see if appeal was received. There 

are no annotations that you received it but HOC recvd it on 160727 and forward[ed] 

it. Claimant was advised to send it again but she would like her appeal processed.” 

C.R., Item No. 3.3 The Claim Record also indicates the Department advised Claimant

to send pay stubs and a W-2, noting “CLT STATES UNABLE TO FAX, WILL MAIL 

THEM IN.” C.R. at Item No. 1. It appears that in the interim, Claimant resubmitted 

her appeal as requested. C.R. at Item No. 4 (Web Petition for Appeal as to July 

Determination) (Second Appeal).

On August 17, 2016, the Department vacated its July Determination. 

F.F. No. 10. The record contains no explanation for the Department’s decision in this 

regard.

4

 The record also does not include Claimant’s submissions to the Department 

to supplement her First Appeal. 

Also in August 2016, the Department undertook a wage investigation to 

discern Claimant’s financial eligibility. C.R. at Item No. 5. Despite the August 2015

referee decision to the contrary, the Department determined Claimant was an 

independent contractor of KFS. As a result, it deemed Claimant financially ineligible. 

 

2 There is a notation in the Claim Record dated “160727” stating: “MON APL REC’D IN 

HOC FROM CLMT; FWD TO 0993.” Certified Record (C.R.) at Item No. 1.

3 This email corresponds to the entry in the Claim Record dated “160808” stating “ADV 

CLMT WLD EMAIL SUP REGARDING CLMTS APPL TO FIN DETER SENT TO 0993.” Id. 

4 The Board found “the Department vacated its [July Determination] under Revised 

Standing Order 2014-2.” Bd. Op., 2/24/17, Finding of Fact (F.F.) No. 10. However, the basis for 

this finding is not clear. It also occurred after Claimant filed her First Appeal.
4

By mid-September, Claimant still did not receive UC benefits or other 

communication from the Department about her appeals. F.F. No. 11. When she 

inquired about the status of her claim, she was instructed to appeal. F.F. No. 12. 

Claimant appealed as instructed (Third Appeal). However, at that time, the 

Department had not issued a revised financial determination from which she could 

appeal. F.F. No. 13. On September 22, 2016, the Department issued a revised 

eligibility determination (September Determination).5 F.F. No. 14.

Claimant did not timely appeal the September Determination. On this 

record, it is unclear whether she received it. The Claim Record reflects she contacted 

the Department about her UC benefits on October 13, 2016. The Department advised 

her to submit another appeal, explaining the late filing. F.F. No. 16. She appealed the 

September Determination on October 18, 2016 (Final Appeal). C.R. at Item No. 4. 

The Department scheduled a hearing. The hearing notice listed the 

Therapeutic Center as the employer, and KFS (“Employer”) and Labow James Harley

(“Agency Representative”) as additional interested parties. C.R. at Item No. 7. 

A referee held a telephonic hearing.

6

 Again, KFS did not appear. The 

Agency Representative scheduled to participate was also not available. A 

representative for Therapeutic Center testified as to Claimant’s earnings in the first 

 

5 The September 22, 2016 financial determination from which Claimant appealed, and is 

before us, is not included in the certified record. The only information about its content is found 

in the referee’s decision, stating it was the same as the July Determination.

6 Prior to the hearing, Claimant emailed the Department “forms for Ashely Kearsley and 

1099 status.” See C.R. at Item No. 4 (email dated 11/15/16). Although the email shows two .jpg 

attachments, only a copy of the transmission email appears in the certified record. 
5

quarter of 2016. The referee facilitated the testimony as there was some question as to 

which employer, KFS or Therapeutic Center, paid Claimant in that quarter. N.T. at 12.

Claimant testified on her own behalf regarding her appeals and her 

wages. In the course of her appeals, she submitted a 1099 form showing payments

from KFS in 2015 totaling $34,919.80, a copy of the referee’s August 2015 decision, 

and pay stubs from KFS and from the Therapeutic Center.7 N.T. at 10. The referee 

accepted this evidence.

Claimant testified about misinformation received from the Department, 

which led her to submit three or four appeals for one UC claim. N.T. at 13. She 

expressed confusion about the process when a prior referee decided the matter in her 

favor. She “didn’t realize that when it was a new claim, I had to go through the whole 

process again. Because I said it was already determined. Why would I have to sit 

through another Referee Hearing if I’m debating the same facts ... [?]” N.T. at 14. 

Claimant testified she worked full-time during the school year. During 

the summer, she worked shorter hours. The referee noted a pay stub for the third week 

of June 2015 showed the transition from full-time to a summer schedule. She testified 

the summer schedule was in effect from late June until the first day of school, 

September 1st. Id. at 17. She testified she earned $552 per week during the summer 

schedule, other than the first week of August 2015, when she took vacation. 

 

7

“Public Health Management Corporation” appears as the payer on the pay stubs from 

Therapeutic Center for teaching at the Villa Academy. C.R. at Item No. 1.
6

After deeming her Final Appeal timely, the referee determined Claimant

was financially eligible for benefits. She found Claimant earned the following from 

KFS: $12,675 in the 2nd quarter of 2015; $8,204 in the 3rd quarter of 2015; $14,040 

in the 4th quarter of 2015; and, $9,357 in the 1st quarter of 2016. Ref. Dec., 12/1/16, 

F.F. No. 7. KFS appealed to the Board.8 

The Board reversed the referee’s eligibility determination, issuing its 

own findings and conclusions. As to Claimant’s relationship to KFS, it found the 

referee’s decision in August 2015 concluding that Claimant was not self-employed

bound KFS. Bd. Op., 2/24/17, F.F. Nos. 1, 2. The Board found Claimant received 

the following wages from KFS: $1,632.00 in the 2

nd quarter of 2015; $552.00 in the 

3

rd quarter of 2015; $870.75 in the 4th quarter of 2015; and, $1,080.00 in the 1st quarter 

of 2016. F.F. Nos. 4-7. It also found Claimant received $4,683.60 in wages in the 1st

quarter of 2016 from the Therapeutic Center. Her highest quarterly base year wages 

were $5,763.60, whereas her base year wages totaled $8,818.35.

Ultimately, the Board determined Claimant was financially ineligible for 

UC benefits under Section 401(a) of the Law because she did not earn sufficient wages 

in her base year. The Board reasoned “[a] form 1099 is insufficient evidence to 

establish when [Claimant] received her payments, as is [her] testimony about how 

much she generally worked in given months. [Claimant] presented only a sampling 

of pay stubs from KFS, the only competent evidence of her wages.” Bd. Op. at 4 

(emphasis added). Thus, it concluded Claimant did not meet her burden of proof.

 

8 KFS also attempted to submit evidence to the Board that it was not Claimant’s employer, 

including a copy of the independent contractor agreement. See C.R. at Item No. 11. The Board did 

not accept this evidence. Bd. Op. at 2.
7

Claimant filed a petition for review to this Court, alleging she was 

financially eligible for UC benefits because she earned sufficient wages. In support, 

she appended additional records documenting her pay, including several pay stubs and 

a copy of a check register report from KFS showing it paid her a total of $40,408.26 

from 3/22/15 to 2/19/16. Claimant explained older KFS pay stubs were unavailable 

because “this case [was] closed months ago.” Pet’r’s Pro Se Letter, 3/6/17. 

The Board filed an application to strike this extra-record material, which 

this Court granted. Claimant then filed a motion for reconsideration asking this Court

to consider additional pay stubs, which we denied. The matter is ready for disposition.

II. Discussion

On appeal,9 Claimant argues the Board erred in determining there was 

insufficient evidence to establish her financial eligibility. Specifically, she argues 

the pay stubs, the 1099 form and her testimony are sufficient evidence establishing 

her eligibility for UC benefits at a rate of $564 per week. She also contends the 

Board erred in disregarding her testimony that she earned $27 per hour, 8 hours a 

day, 5 days a week, while working for KFS during the school year. 

Here, the Board determined Claimant did not establish sufficient base 

year earnings to qualify for UC benefits. Although the Board included payments 

from KFS that were supported by pay stubs, it reasoned that the evidence Claimant 

submitted was insufficient to show the base year earnings she claimed. 

 

9 Our review of the Board’s decision on financial eligibility is limited to determining 

whether necessary findings of fact were supported by substantial evidence, whether the 

adjudication is in accordance with the law, and whether constitutional rights were violated. Devine 

v. Unemployment Comp. Bd. of Review, 101 A.3d 1235 (Pa. Cmwlth. 2014).
8

The claimant bears the burden to prove financial eligibility. Pagliei v. 

Unemployment Comp. Bd. of Review, 37 A.3d 24 (Pa. Cmwlth. 2012). To meet her 

burden, a claimant must satisfy the requirements of Sections 401(a) and 404 of the 

Law. 43 P.S. §§801(a), 804. Section 404 of the Law establishes the manner in which 

the UC benefit is calculated. 43 P.S. §804. Section 401(a) of the Law provides

compensation shall be payable when an employee: 

(1) has, within [her] base year,[

10] been paid wages for 

employment as required by Section 404(c) of this act.

(2) Except as provided in section 404(a)(3), not less than fortynine and one-half percentum (49.5%) of the employe’s 

total base year wages have been paid in one or more 

quarters, other than the highest quarter in such employe’s 

base year.

43 P.S. §801(a).

Facts found by the Board will not be disturbed on appeal if they are 

supported by substantial evidence. Chapman v. Unemployment Comp. Bd. of 

Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). “Substantial evidence has been 

defined as such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Procyson v. Unemployment Comp. Bd. of Review, 4 A.3d 

1124, 1127 n.4 (Pa. Cmwlth. 2010). In reviewing the record for substantial 

evidence, we “must examine the evidence in the light most favorable to the party 

who prevailed before the Board, and ... give that party the benefit of all inferences 

that can be logically and reasonably drawn” therefrom. Chapman, 20 A.3d at 607.

 

10 A claimant’s UC benefit is calculated based on wages earned during her “base year,” 

defined as “the first four of the last five completed calendar quarters immediately preceding the 

first day of an individual’s benefit year.” Section 4(a), 43 P.S. §753(a). 
9

However, the Board may not capriciously disregard competent 

evidence. Treon v. Unemployment Comp. Bd. of Review, 453 A.2d 960 (Pa. 1982). 

“Although the Board is the ultimate fact[-]finder, the Board cannot ignore 

overwhelming evidence in favor of a contrary result which is not supported by the 

evidence.” Stauffer v. Unemployment Comp. Bd. of Review, 74 A.3d 398 (Pa. 

Cmwlth. 2013) (quoting Phila. Gas Works v. Unemployment Comp. Bd. of Review, 

654 A.2d 153, 157 (Pa. Cmwlth. 1995)). 

A. Administrative Breakdown

Before addressing the sufficiency of Claimant’s evidence, we consider 

the unique circumstances that led to this appeal. 

There is no dispute that during the administrative proceedings, 

Claimant received misinformation about her claim, her financial eligibility, and the 

appeals process. Notably, the Board reviewed the history of this case as follows:

The record abounds with evidence of administrative breakdown. 

The Department waited nearly a month after [Claimant] filed a 

timely appeal to vacate its original financial determination, 

neglected to promptly investigate [Claimant’s] missing wages, 

advised [Claimant] to file an appeal from a nonexistent financial 

determination, and then failed to issue a revised financial 

determination until after [Claimant] filed yet another appeal.

Bd. Op. at 3. Thus, the Board allowed a late appeal from the September Determination. 

In addition to the Board’s summary, the Claim Record shows Claimant 

filed multiple appeals based on misinformation she received from the Department. 

Claimant expressed confusion throughout the process when timely appeals were not 

processed. See C.R. Item No. 1 (Claim Record). She also expressed confusion as to 
10

why she needed to submit documentation of her wages from KFS when the 

Department previously determined in 2015 that she was not self-employed, and, that 

payments from KFS counted as wages. See C.R. at Item No. 9 (Clmt. Ex. 1, Referee’s 

Dec., 8/14/15); N.T. at 13-14.

The Claim Record documents that Claimant submitted material in 

support of her claim. Indeed, there are six pay stubs showing payments from KFS, 

additional pay stubs showing payments from the Therapeutic Center, and an IRS 1099 

form for 2015 showing payments from KFS totaling $34,919.80. Nonetheless, the 

certified record appears incomplete. 

Significantly, the certified record does not contain a copy of the 

September Determination appealed from. It contains only the July Determination that 

the Department subsequently vacated. The referee noted this deficiency, stating “it’s 

the exact same financial information in the chart as the one that was mailed in 

September.” N.T. at 6 (marking Referee 5). Yet, the fact remains, there is no 

September Determination for this Court to review. 

Aside from the gaps in the certified record, there is a real possibility 

that the record does not contain evidence that Claimant previously submitted related 

to her financial eligibility. Whereas the certified record contains Claimant’s Final 

Appeal, it is unclear whether it contains all of the pay information Claimant submitted 

with her First Appeal, Second Appeal or Third Appeal, or at any time in between. 

This is particularly troubling when the Board deemed Claimant financially ineligible 

based on a lack of proof. 
11

Also, during the course of the administrative appeals, Claimant’s First 

Appeal was missing, and the Erie UC Service Center had no record of its receipt until 

after the appeal period expired. Then, the Department vacated the July Determination 

from which she appealed to replace it with the September Determination that was 

purportedly the same. With these acknowledged deficiencies, it is not clear to this 

Court that the certified record contains all of Claimant’s submissions. 

Moreover, it is evident that multiple administrative communications and 

repeated appeals led to Claimant’s confusion regarding the issues in dispute. 

Claimant was uncertain whether the Department determined her ineligible based on 

independent contractor status. The Claim Record reveals entries that Claimant was 

“ruled IC.” C.R. at Item No. 1. Her confusion is thus understandable. 

This Court recognized that issuance of revised notices of determination 

causes confusion. Martyna v. Unemployment Comp. Bd. of Review, 692 A.2d 594 

(Pa. Cmwlth. 1997). Among other reasons, it raises the question of whether the 

Department had jurisdiction to issue more than one determination, particularly when 

there is evidence of a timely appeal before its revision. We reasoned “[the claimant] 

should not bear the consequences of that administrative confusion.” Id. at 597.

The information the Department provided to Claimant regarding the 

issues in dispute is material to whether Claimant had a full and fair opportunity to 

submit evidence about those issues.11 Given the gaps in the certified record, and the 

lack of development of the record during the referee’s hearing, this Court cannot 

 

11 Also, the hearing transcript reflects that the referee was satisfied with the pay stubs 

Claimant submitted. When she noted she was attempting to locate additional pay stubs, the referee 

repeated, “That’s alright,” N.T. at 16, and “That’s okay,” N.T. at 17, indicating her satisfaction. 

However, the Board as fact-finder did not share the referee’s view of the evidence.
12

discern this issue. It would be inappropriate to penalize Claimant for the insufficiency 

of the record before the Court in this regard. Martyna. 

Here, there is a legitimate question as to the completeness of the record 

before the Board, particularly as to whether it included all of Claimant’s submissions. 

Also, the Board acknowledges the Department mishandled this appeal, misinforming 

Claimant throughout the process. Under these rare circumstances, when the 

Department’s misdirection may be the cause of the evidentiary deficiency, a remand 

for further development of the record is in order. Accordingly, we remand for further 

explication of the Department’s communications to Claimant, including the 

September Determination. On remand, the Board may accept additional evidence to 

develop an adequate record for appellate review. Stana v. Unemployment Comp. Bd. 

of Review, 791 A.2d 1269 (Pa. Cmwlth.), appeal denied, 813 A.2d 848 (Pa. 2002); 

see also Dorn v. Unemployment Comp. Bd. of Review, 866 A.2d 497 (Pa. Cmwlth.

2005) (remanding to allow Board to consider corrected wage information and a new 

eligibility determination based on that information); Bereznak v. Unemployment 

Comp. Bd. of Review (Pa. Cmwlth., No. 1366 C.D. 2011, filed July 20, 2012), 2012 

WL 8682665 (unreported) (remanding for credibility determinations).

B. Submitted Evidence and Findings

In addition to developing the record on remand, we also direct the 

Board to explain its findings and credibility determinations as to the evidence the 

Board acknowledges Claimant submitted. 

In determining Claimant was financially ineligible, the Board relied 

solely on five pay stubs Claimant submitted during the administrative proceedings. 

The Board concluded the pay stubs were the only competent evidence before it 
13

regarding Claimant’s wages. Thus, the Board disregarded the 1099 form showing 

payments from KFS in 2015, and Claimant’s testimony about her earnings. 

Importantly, the record reflects that Claimant submitted at least six pay

stubs. C.R. at Item No. 1. Respondent acknowledges that one paystub from 

September 2015, in the amount of $654.75 was not considered by the Board. See

Resp’t’s Br. at 12 n.15. Thus, the Board’s finding as to Claimant’s earnings in the 

3

rd quarter of 2015, F.F. No. 5, is contrary to the evidence of record, as is its 

conclusion regarding her base year earnings. Stauffer. This Court cannot presume 

whether the consideration of this additional pay stub, which the Board overlooked, 

would have tipped the scale in Claimant’s favor. Thus, a remand for additional factfinding is appropriate.

In addition to this oversight, the Board did not explain its disregard of 

competent evidence other than Claimant’s pay stubs. The Board disregarded the 

1099 form showing Claimant received $34,919 from KFS since her hiring in March 

2015 through December 2015. Although the 1099 form does not constitute evidence 

as to which quarter the earnings were received, it evinces her earnings over the three 

relevant quarters in 2015. The Board’s conclusion that Claimant earned a total of 

$8,818.35 in base year earnings cannot be reconciled with evidence of her total 

earnings from KFS as reflected on the 1099 form at almost four times that amount.

It is also unclear why the Board did not consider Claimant’s testimony 

competent evidence. Testimony, if credited, constitutes competent evidence. The 

Board is free to discount testimony even when that testimony is uncontradicted. 

However, as fact-finder, the Board must make credibility determinations. Miller v. 

Unemployment Comp. Bd. of Review, 131 A.3d 110, 115 (Pa. Cmwlth. 2015)
14

(“Where the Board fails to make necessary findings and credibility determinations 

we must remand to the Board.”); see also Bereznak.

Here, the Board offered no basis to discredit Claimant’s uncontradicted 

testimony. Claimant testified she worked full-time as a special education teacher at 

the Villa Academy, starting in March 2015. She was paid through KFS, until the 

Therapeutic Center hired her directly in 2016. She worked full-time during the 

school year; then in late June, she transitioned to a summer schedule. The pay stubs 

corroborate the transition from 8-hour days to 4.5-hour days in the summer of 2015. 

As to the 3rd quarter of 2015, Claimant specified that she worked the 

summer schedule until September 1, 2015, with the exception of one week in 

August. Her testimony substantiates that she earned $552 for four weeks in July and 

three weeks in August. Her pay stubs show that once she started full-time in 

September, she earned $216 per 8-hour day. Yet, the Board found she earned only 

$552 in wages from KFS from July 1 through September 30, 2015.

Accordingly, we also remand for the Board to address the documentary 

and testimonial evidence contrary to its conclusion. Specifically, we instruct the 

Board to address the credibility of Claimant’s testimony, and to render new findings 

based on the credited evidence as to Claimant’s earnings. 

Further, it appears that the Claim Record served as the sole basis for 

several of the Board’s findings. See Bd. Op., 2/24/17, Findings of Fact Nos. 9-15. 

Not all of the entries in the Claim Record are comprehendible without explanatory 

testimony. Therefore, on remand, we urge the Board to develop the record, with 

testimony of a Department representative if necessary, to substantiate these findings.
15

III. Conclusion

For the foregoing reasons, the order of the Board is vacated and the 

matter is remanded with instructions to develop the evidentiary record in accordance 

with this opinion. 

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ashely M. Kearsley, :

Petitioner :

:

v. : No. 294 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 28th day of November, 2017, the decision of the 

Unemployment Compensation Board of Review is VACATED, and the matter is 

REMANDED with instructions to develop a sufficient record for appellate review, 

and to issue a new determination based thereon, in accordance with the foregoing 

opinion. 

Jurisdiction is relinquished.

 

ROBERT SIMPSON, Judge