IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kathleen G. Connors, :

Petitioner :

: No. 2198 C.D. 2013

v. :

: Submitted: June 20 , 201 4

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: July 21, 2014

Kathleen G. Connors (Claimant) petitions pro se for review of the

November 7, 2013 order of the Unemployment Compensation Board of Review

(Board) which held that Claimant is ineligible for benefits pursuant to section 402(b)

of the Unemployment Compensation Law (Law). 1 We affirm.

Claimant was employe d by Human Resources Centers, Inc. (Employer)

as a part

- time respite worker from June 2007 to April 2013

. On April 23, 2013,

Claimant resign ed from her position. The local job center determined that Claimant

was ineligible for compensation under section 402(b) of the Law because

, although

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

§802( b). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week

in which his unemployment is due to voluntarily leaving work without cause of a necessitous and

compelling nature.2

she had cause of a necessitous and compelling nature to leave her employment , she

did not exhaust all alternatives prior to quitting . Claimant appealed, and the matter

was assigned to a referee.

On June 28, 2013, t he referee mailed a Notice of H earing for July 1 2

,

2013 (Notice) to the parties

. N either party attended the hear ing . Citing Claimant’s

absence from the hearing, t he referee determined that Claimant failed to meet her

burden to demonstrate entitlement to ben efits and held that she was ineligible for

compensation under section 402(b) of the Law. (Referee’s o pinion at 2.) Claimant

appealed to the Board and requested a remand hearing. The Board remanded the

matter for a h earing to address the reason for Claim ant’s failure to appear at the July

12, 2013 hearing as well as the merits of the case

.

Claimant testified that she did not receive the Notice sent on June 28,

2013. She confirmed that she never had trouble receiving mail in the past and that

she receive d the referee’s Notice of Determination dated July 15, 2013. Claimant

stated that she knew of no reason why she would not have receive d the N otice.

(Notes of Testimony (N.T.), 10/01/2013

, at 2

- 3.)

Claimant testified that after she sustain ed a work injury in December

2012, she was unable to provide services for her original client. She stated that upon

her return to work in April 2013 with partial w orkers’ c ompensation benefits

,

Employer assigned her a new client with whom she would work fewer than half of

her pre

- injury hours

. Claimant stated that she was worried about this assignment

because it involved a forty

- five

- minute commute and she would not be able to reach

the client at his bus stop if her car broke down. She also testified that she was

concerned that the out

- of

- pocket expenses of t aking the client to required activities,3

such as eat ing out , watch ing movies, and go ing bowling

, would amount to a

significant portion of her pay

. (N.T. at 3

- 6.)

Claimant said that she brought her concern s to her supervisor who

responded that she would have to report Claimant’ s refusal of the assignment to

w orkers’ c ompensation authorities . Claimant explained that she did not ask if there

were any other assignments available because she felt “thrown” by t his response.

Claimant testified that she s ubsequently notified Employer of her resignation

. (N.T.

at 7

- 9.)

The Board found that Claimant’s testimony regarding the Notice was not

credible and did not establish proper cause for her failure to appear at the first

hearing . Thus, the Board examined the record from that hearing and adopted the

r eferee’s findings of fact and conclusions of law

. In addition, t he Board alternatively

held that Claimant’s testimony at the remand hearing did not demonstrate a

compelling cause for leaving her employment because the distance to the new client

was not unreasonable and Claimant did not have to eat or bowl herself when she took

the client to eat or go bowling

. Accordingly, the Board held that Claimant wa s

ineligi ble for benefits under section 402(b) of the Law.

On appeal to this C ourt

, 2 Claimant argues that the Board e rred in

determining that she did not have proper cause for not attending the July 12, 2013

hearing. Claimant also asserts that the Board erred in failing to find that she left her

employment for cause of a necessitous and compelling nature based on the testimony

presented at the second hearing.

2 Our scope of review is limited to determini ng whether constitutional rights were violated,

whether an error of law was committed, or whether findings of fact were sup ported by substantial

evidence

. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; S hrum v. Unemployment

Compensation B oar

d of Review , 690 A.2d 796, 799 n.3 (Pa. Cmwlth. 1997).4

When a party makes a timely request for reopening of the record to

establish good cause for her failure to attend a hearing , t he Board is required to allow

a further appeal and take additional evidence

. 34 Pa. Code § 101.104(c)(3); see also

V olk v. Unemployment Compensation Board of Review , 49 A.3d 38, 45 (Pa. Cmwlth.

2012) (holding that the Board m ust schedule a hearing to give a party the opportunity

to rebut the presumption that she received a duly mailed notice). If the party fails to

establish proper cause for not attending the initial hearing, then the B oard must issue

a decision on the merits based on the record which was before the referee. O r t i z v.

Unemployment Compensation Board of Review , 481 A.2d 1383, 1386 (Pa. Cmwlth.

1984). This Court has held that not receiving a hearing notice can constitute proper

cause. Volk , 49 A. 3 d at 40

- 41. However, if a notice was mailed to a party’s last

known address and not returned as undeliverable, there is a presumpti on that the party

received proper notice

. Gaskins v. Unemployment Compensation Board of Review

,

429 A.2d 138, 140 (Pa. Cmwlth. 1981).

Here, the Board granted Claimant the opportunity to rebut the

presumption that she received the Notice. However, the Board found that Claimant’s

testimony was not credible and determined that she did not have proper cause to miss

the July 12, 2013 hear ing. The credibility of testimony and the weight to be given to

the evidence presented to rebut this presumption are matters for solely the Board to

decide. Gaskins , 429 A.2d at 140. Furthermore, the Board may disregard even

uncontroverted testimony if it concludes that the testimony is not credible. Fuentes v.

Unemployment Compensation Board of Review , 413 A.2d 449, 450 (Pa. Cmwlth.

1980). Therefore, we conclude that the Board did not err by relying only on the5

record of th e first hearing to determine that Claimant is ineligible for benefits under

section 402(b) of the Law. 3

Claimant also argues that the Board erred in determining that she did not

have cause of a necessitous and compelling nature to leave her employment bas ed on

the evidence presented at the second hearing. Having concluded that the Board

properly relied solely on the record of the July 12, 2013 hearing , we need not address

the merits of the Board’s alternative decision.

Accordingly, we affirm.

_____ ___________________________ PATRICIA A. McCULLOUGH, Judge

3 The Board points out that Claimant has not challenged any of the Board’s findings

, and,

therefore, these findings are conclusive on appeal. Munski v. Unemployment Compensation Board

of Review , 29 A.3d 133, 137 (Pa. Cmwlth. 2011).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kathleen G. Connors, :

Petitioner :

: No. 2198 C.D. 2013

v. :

: Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 21 st day of July , 201 4 , the November 7, 2013 order

of the Unemployment Compensation Board of Review is hereby affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge