IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Murphy Marine Services, Inc., :

Petitioner :

 :

v. : No. 1291 C.D. 2016

 : Submitted: January 20, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: May 18, 2017

Murphy Marine Services Inc. (Employer) petitions for review of an Order of 

the Unemployment Compensation (UC) Board of Review (Board), which, on 

remand from this Court, found Byron A. Jones (Claimant) not ineligible for 

benefits under Section 402(a) of the UC Law (Law).1 In its Petition for Review, 

Employer argues that the Board erred in applying Section 402(a) of the Law and 

instead should have utilized Section 402(b), 43 P.S. § 802(b), and/or Section 

401(d)(1), 43 P.S. § 801(d)(1), which would have resulted in a finding of 

 

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

§ 802(a). 
2

ineligibility.2 After review, discerning no errors of law, abuse of discretion, or 

procedural infirmities, we affirm. 

Claimant is a registered casual worker belonging to Local 1291 of the 

Longshoremen’s International Association based in Philadelphia. (Board 

Decision, June 29, 2016 (June Board Decision), Findings of Fact (FOF) ¶ 4.) He

reopened a claim for emergency unemployment compensation (EUC) benefits in 

late April 2013. (Id. ¶ 1.) After working only some days during the week ending 

May 18, 2013, Claimant filed a claim for benefits.3(Id. ¶ 2.) The local UC 

Service Center found Claimant not ineligible for benefits under Section 402(a) of 

the Law.4 (Notice of Determination, R. Item 4.) Employer appealed on July 22, 

2013, asserting as it does in this appeal, that eligibility was determined under the 

wrong provision of the Law. (Petition for Appeal, R. Item 5.) A hearing was held 

before a UC Referee (Referee) on August 26, 2013, at which only a witness for 

Employer and Employer’s counsel appeared.

5

 Following the hearing, the Referee 

affirmed the Service Center’s determination that Claimant was not ineligible for 

benefits pursuant to Section 402(a). (Referee Decision, R. Item 9.) Specifically,

 

2 Although Employer raises the issue of whether Section 402(a) or Section 402(b) 

properly applies in its Petition for Review, Employer devotes its brief to the issue of whether 

Claimant is ineligible for benefits under Section 401(d)(1). Because Employer briefly discusses 

the applicability of Section 402(b) in one paragraph of the brief, see Employer’s Br. at 11-12, we 

find the matter was properly raised and will address it along with Employer’s argument 

concerning Section 401(d)(1). 

3 Another week previously was challenged but is not at issue in this appeal. 

4

The Service Center found Claimant had refused work but because Employer did not 

comply with Section 402(a) of the Law by notifying the Office of UC Benefits of a job offer in 

writing within seven days, Claimant was deemed eligible. (Notice of Determination, R. Item 4.) 

Whether Employer satisfied the notice requirements is not an issue before this Court. 

5 Claimant was notified of the hearing, and the hearing notice was not returned as 

undeliverable. (R.R. at 51a.)
3

the Referee found Claimant “was not guaranteed any offers of work but [was]

merely offered the possibility of employment.” (Id.) Employer filed a timely 

appeal to the Board, once again asserting the case was decided under the wrong 

section of the Law. (Petition for Appeal, R. Item 10.) By Decision and Order 

dated November 14, 2013, the Board affirmed, adopting and incorporating the 

Referee’s findings and conclusions. (Board Decision and Order, Nov. 14, 2013, R. 

Item 11.) 

Thereafter, Employer filed a Petition for Review with this Court, asserting 

the Board erred in not finding Claimant ineligible under Sections 401(d)(1) and 

402(b) of the Law. Because Employer’s argument centered on the terms of 

contractual agreements between members of the Ports of the Delaware River 

Marine Trade Association (PMTA), to which Employer is a member, and various 

locals, including Claimant’s, (PMTA Agreements), which were not part of the 

record, we remanded that matter to the Board to determine which section of the 

Law applied in light of the PMTA Agreements and whether Claimant was 

ineligible under that section. Murphy Marine Servs., Inc. v. Unemployment Comp. 

Bd. of Review (Pa. Cmwlth., No. 2232 C.D. 2013, filed Aug. 4, 2014), slip op. at 

6-9. 

On remand, the Board requested a referee take additional evidence, and a 

remand hearing was held on September 12, 2014. At the hearing, excerpts of the

PMTA Agreements were entered into evidence6and Employer again offered the 

testimony of its witness. 

 

6 Our review is limited by having only excerpts of the PMTA Agreements in the record. 

We would ordinarily remand the matter in such cases, but here, it was Employer’s Counsel who 

introduced the excerpts in lieu of the full PMTA Agreements, which counsel stated exceed 1,100 

pages, “the vast majority of [which were] not [] relevant.” (R.R. at 166a.) Because Employer 

(Footnote continued on next page...)
4

The Board subsequently issued a new Decision and Order on June 29, 2016, 

which made the following relevant findings of fact:

4. The [C]laimant is a registered casual worker who belongs to 

Local 1291 of the Longshoremen’s International Association 

based in Philadelphia. 

5. Local 1291 along with two other longshoremen locals have an 

agreement with five companies that together comprise the 

[PMTA].

6. The [E]employer in this proceeding is located in Wilmington, 

Delaware, and is able to hire Philadelphia-based longshoremen 

through a reciprocal agreement with the PMTA and the 

Philadelphia locals.

7. The PMTA agreement with the various longshoremen’s locals 

governs the procedures for the companies to offer 

longshoremen work on a day-to-day basis.

8. The [C]laimant had a history of working intermittently for 

several of these companies.

9. The [C]laimant during April/May 2013 worked a total of 47 

hours for the [E]employer. 

10. The union members typically work an assignment until it is 

completed, and then are unemployed until they pick up a new 

assignment, often from a different company in the PMTA.

11. Local members can telephone each morning to obtain a list of 

the work orders for the day prior to reporting to the hiring hall.

12. As a member of Local 1291, the [C]laimant is expected to 

report to the Philadelphia hiring center before he reports any 

place else.

_____________________________

(continued...)

provided the excerpts that it deems relevant, we do not perceive any prejudice in proceeding with 

our review. 
5

13. The [C]laimant is permitted, but not required, to attempt to 

secure work in Delaware if work is not available in 

Philadelphia.

14. Hiring is usually completed in Philadelphia by 7:15 a.m., and in 

Wilmington by 7:30 a.m., although sometimes it can continue 

until 8:00 a.m. in Wilmington. 

15. The Wilmington hiring facility is approximately 30 miles from 

the Philadelphia hiring facility.

16. When workers are hired at the Wilmington union hall, the 

contract requires that they be hired by seniority and in the 

following order: first, basic unit members of the three 

Wilmington locals; second, basic unit members of Philadelphia 

locals; third, secondary workforce members of the three 

Wilmington locals; fourth, Philadelphia-area secondary 

workforce members; fifth, Wilmington registered casuals; sixth, 

Philadelphia registered casuals; and seventh, unregistered 

casuals and new hires. 

17. The [C]laimant obtained work through the Wilmington hiring 

facility on May 13 and 14, 2013. 

18. On May 15, 2013, seven positions were filled at the 

Wilmington facility. 

19. On May 15, 2013, the [C]laimant did not appear at the 

Wilmington hiring facility to seek work.

20. The [C]laimant would have had only the “possibility” of 

obtaining work at Wilmington on May 15, 201[3].

(FOF ¶¶ 4-20.)

Based on the above, the Board concluded Section 402(a) of the Law, not 

Section 402(b), was the proper provision because it found that Claimant was 

considered unemployed on May 15, 2013. (June Board Decision at 4.) The Board 

further concluded that because Claimant only had the “possibility” of obtaining 
6

one of the seven positions and because he was sixth in terms of preference of 

hiring,7it could not conclude that Claimant failed to accept an offer of suitable 

work. (Id.) The Board also stated that although Claimant did not appear at the 

hearings to testify, because Claimant registered for UC benefits, there was a 

presumption that he was able and available for work, which was not rebutted by 

Employer, and therefore, he was not ineligible under Section 401(d)(1) of the Law 

either. (Id. at 4-5.) Employer now petitions for review of this Board Order.8 

First, Employer claims in its Petition for Review that the Board applied the 

wrong provision of the Law. The Board found that, generally, union members 

work an assignment until it is completed and then are considered unemployed until 

they pick up a new assignment with one of the PMTA companies, making Section 

402(a) of the Law the appropriate standard. (FOF ¶ 11; June Board Decision at 4.) 

Section 402(a), provides, in relevant part, that 

[a]n employe shall be ineligible for compensation for any week . . . 

[i]n which his unemployment is due to failure, without good cause, . . 

. to accept suitable work when offered to him . . . by any employer . . 

. ; however this subsection shall not cause a disqualification of . . . 

benefits under the following circumstances: when work is offered by 

his employer and he is not required to accept the offer pursuant to the 

terms of the labor-management contract or agreement . . . .

43 P.S. § 802(a). Section 402(b), which Employer claims applies, states, in 

pertinent part, that “[a]n employe shall be ineligible for compensation for any week 

 

7

The Board’s discussion section incorrectly states that Philadelphia-registered casual 

workers were seventh in terms of hiring preference, not sixth, as stated in the Board’s findings of 

fact. This error was harmless to the Board’s disposition. 

8

This Court’s scope of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 

1006, 1009 n.2 (Pa. Cmwlth. 2014). 
7

. . . [i]n which his unemployment is due to voluntarily leaving work without cause 

of a necessitous and compelling nature.” 43 P.S. § 802(b). This Court previously 

determined that Section 402(a) of the Law applies to “claimants who, while 

unemployed, refuse to accept an offer of suitable work,” whereas “[c]laimants who, 

while employed, refuse to accept an offer of continued employment are deemed to 

have quit their position, and are thus subject to Section 402(b) of the [Law].” 

Hosp. Serv. Ass’n of Ne. Pa. v. Unemployment Comp. Bd. of Review, 476 A.2d 

516, 518 (Pa. Cmwlth. 1984) (emphasis in original). 

The evidence establishes, as the Board found, that “[C]laimant is employed 

by any one employer for the duration of his assignment, and then has a break in 

service before accepting his next assignment” with one of the PMTA companies. 

(June Board Decision at 3.) At the remand hearing, Employer’s witness testified 

that Claimant was not required to accept work from only members of PMTA, 

which is evidence that there was no ongoing employment relationship. (R.R. at 

166a.) She also explained that there are a “large number of people who work a day 

or two a month or maybe a day or two a year.” (Id. at 55a.) Furthermore, in its 

appeal letter, Employer itself stated that work was on a “day-to-day” basis. (Id. at 

120a.) The PMTA Agreements are rife with discussion concerning hiring

practices. (See, e.g., id. at 59a (discussing automated hiring system), 61a-62a 

(discussing hiring times), 66a (discussing guaranteed hours when “rehired”), 91a92a (discussing “re-employment” under the hiring system).) In addition, the 

PMTA Agreements recognize the “casual employment nature of this industry.” 

(Id. at 81a.) None of this reflects an ongoing employment relationship. Therefore, 

Section 402(a) is the appropriate legal standard by which Claimant’s eligibility for 

benefits should be determined.
8

Having found that the Board did not err in applying Section 402(a), we must 

now determine whether Claimant would have been ineligible under this provision. 

As stated above, a claimant is ineligible for benefits if his unemployment is “due to 

failure, without good cause, . . . to accept suitable work” offered to him. 43 P.S. § 

802(a). “Our court has interpreted [Section] 402(a) to require that claimants 

demonstrate good faith through conduct consistent with a genuine desire to work 

and be self-supporting.” Markby v. Unemployment Comp. Bd. of Review, 564 

A.2d 1340, 1341 (Pa. Cmwlth. 1989). Thus, Claimant will be ineligible for 

benefits under Section 402(a) if: (1) an offer of suitable work was made; and (2), 

the claimant did not have good cause for refusing the work. 

By Employer’s own admission, no offer of employment existed. Although 

Employer’s witness initially testified Claimant was offered employment on May 

15, 2013, (R.R. at 52a), when questioned further about the nature of the “offer,” 

she acknowledged that it was an “offer for the possibility of employment not a 

guarantee[d] offer of employment.” (Id. at 55a. (emphasis added).) There are 

approximately 800 to 1,500 longshoremen, and 7 positions were open that day. 

(Id. at 53a.) Because some of those positions required certification to operate 

equipment, which Claimant did not have, Employer’s witness testified that it was 

possible Claimant would not have been selected. (Id. at 54a.) Employer’s witness 

admitted that not all longshoremen are guaranteed a position; rather, it is dependent 

upon Employer’s need. (Id.) Based upon this evidence, we cannot conclude the 

Board erred in concluding that Claimant did not fail to accept an offer of suitable 

employment.

9

 

9 Because there was no offer of suitable work, it is not necessary to address whether 

Claimant had good cause to refuse same. 
9

Employer also argues that Claimant was not able and available for work 

under Section 401(d)(1) of the Law because he did not report to the Wilmington 

hiring hall on May 15, 2013 to register for work. Section 401(d)(1) provides, in 

relevant 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.” 43 P.S. § 801(d)(1). “A claimant is attached to the labor force as long as 

[]he is able to do some type of work and there is a reasonable opportunity for 

securing such work in the vicinity of [his] residence.” Wilder & Miller, P.C. v. 

Unemployment Comp. Bd. of Review, 525 A.2d 852, 856 (Pa. Cmwlth. 1987)

(citing Cillo v. Unemployment Comp. Bd. of Review, 514 A.2d 287 (Pa. Cmwlth. 

1986)). Here, the Board relied upon the presumption that Claimant was able and 

available for work based upon his filing for UC benefits. Because Employer’s 

witness did not know whether Claimant did or did not initially report to the 

Philadelphia hiring hall that morning, the Board concluded Employer did not 

successfully rebut that presumption. 

We agree that a claimant who registers for UC benefits is presumed to be 

able and available for work. Pifer v. Unemployment Comp. Bd. of Review, 639 

A.2d 1293, 1295 (Pa. Cmwlth. 1994). “Once Claimant established a prima facie 

case of availability for work, the burden shifted to Employer to present evidence 

that the [C]laimant was unable and unavailable for work.” Id. Here, Employer’s 

witness testified she was not sure if Claimant registered for work in Philadelphia 

on May 15, 2013. (R.R. at 167a.) A witness’s lack of knowledge cannot serve as 

competent evidence to rebut a presumption. Employer’s witness also testified 

Claimant did not report to Wilmington, but importantly, Claimant was not required 

to register for work in Wilmington. (Id. at 166a.) Therefore, this cannot be used to 
10

disqualify Claimant either. Because there was no evidence to rebut the 

presumption that Claimant was able and available to work, the Board did not err in 

concluding that Section 401(d)(1) did not disqualify Claimant. 

Based upon the foregoing, we conclude that the Board’s determination that 

Claimant was unemployed on May 15, 2013, is supported by substantial evidence 

and, as a result, the Board did not err in applying Section 402(a) instead of Section 

402(b) of the Law. We also conclude that the Board did not err or abuse its 

discretion in determining that Claimant was not ineligible for benefits under either 

Section 402(a) or Section 402(d)(1) of the Law. Accordingly, we affirm the 

Board’s Order.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Murphy Marine Services, Inc., :

Petitioner :

 :

v. : No. 1291 C.D. 2016

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

NOW, May 18, 2017, the Order of the Unemployment Compensation 

Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge