Opinion
No. 2352 C.D. 2012 No. 2353 C.D. 2012
10-15-2013
Holly L. Sheridan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Holly L. Sheridan (Claimant) petitions for review, pro se, of the November 19, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to deny Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant failed to establish a realistic attachment to the job market. We affirm.
The UCBR also denied Claimant's request to pre-date her initial application and back credit her claim. Claimant does not appeal this determination.
Claimant worked for ESB Bank FSB (Employer) from October 5, 1998, through June 2, 2012, as a senior account representative. On April 23, 2012, Claimant's son was diagnosed with torticollis and plagiocephaly, conditions that require around-the-clock care and frequent physical therapy appointments. Claimant asked Employer if she could work two days per week, but Employer would not accommodate her. On May 21, 2012, Claimant gave Employer her notice of resignation, effective June 2, 2012. The notice stated that Claimant's son needs "24/7 care at this time." (Referee's Decision, Appeal No. 12-09-H-8331, 8/30/12 (Decision I), Findings of Fact, Nos. 1-6.)
Since Claimant's separation from employment, she has limited her availability to four hours per day, two days per week. Claimant remains available for four-hour shifts on Tuesdays and Wednesdays between the hours of 9:00 a.m. and 3:00 p.m. Claimant has sought work at an insurance office and a store near her home within these parameters. (Id., Nos. 7-9.)
On June 19, 2012, Claimant filed for UC benefits. Claimant delayed filing her application because she did not realize that she might be eligible for UC benefits. Claimant requested a pre-dated application date and back credit. (Referee's Decision, Appeal No. 12-09-H-8361, 8/30/12 (Decision II), Findings of Fact, Nos. 2-4.)
On August 30, 2012, the referee issued two decisions. Decision I related to the application date of June 3, 2012, and the weeks ending June 9, 2012, and June 16, 2012. In Decision I, the referee denied Claimant back credit pursuant to section 401(c) of the Unemployment Compensation Law (Law) and 34 Pa. Code §65.43a, and denied UC benefits pursuant to section 401(d)(1) of the Law, 43 P.S. §801(d)(1), because Claimant did not have a realistic attachment to the labor market. (Referee's Decision I, at 2.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(c).
Decision II related to the waiting week ending June 23, 2012. In Decision II, the referee determined that Claimant had a necessitous and compelling reason for leaving her job under section 402(b) of the Law, 43 P.S. §802(b). However, the referee denied Claimant benefits under section 401(d)(1) of the Law, 43 P.S. §801(d)(1), because Claimant did not have a realistic attachment to the labor market. (Referee's Decision II, at 2.)
Claimant appealed the referee's decisions to the UCBR, which adopted and incorporated the referee's findings and conclusions and affirmed both decisions. Claimant now petitions this court for review.
This court consolidated the petitions. Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Claimant contends that the UCBR erred in determining that Claimant was ineligible for UC benefits under section 401(d)(1) of the Law, 43 P.S. §801(d)(1), because Claimant was able and available for suitable work. Specifically, Claimant states that she is available to work evenings and weekends when her son's father would be home to care for him.
Section 401(d)(1) of the Law provides that an unemployed individual who "[i]s able to work and available for suitable work" is entitled to UC benefits. 43 P.S. §801(d)(1). An individual who registers for UC benefits is presumed to be able and available for work. GTE Products Corporation v. Unemployment Compensation Board of Review, 596 A.2d 1172, 1173 (Pa. Cmwlth. 1991). "This presumption of availability can be rebutted only by evidence of illness, refusal to work, disability or other factors indicative of Claimant not being realistically attached to the labor force." Scardina v. Unemployment Compensation Board of Review, 537 A.2d 388, 390 (Pa. Cmwlth. 1988). If the employer rebuts the presumption of availability, the burden shifts to the claimant to prove that she is available for some type of work and that there is a reasonable opportunity for such work. Rohde v. Unemployment Compensation Board of Review, 28 A.3d 237, 243 (Pa. Cmwlth. 2011). The UCBR's finding as to availability, if supported by substantial evidence, is binding on this court. Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 630, 437 A.2d 1213, 1218 (1981).
Here, Claimant testified that she left her employment because of her son's illness, which required her to take him to physical therapy twice per week, fit him for a helmet, and assist him with physical therapy. Claimant further testified that she could work two days per week but was unavailable the other three days due to her son's appointments. Claimant also stated that she could only work a four-hour day because she had to assist with her son's physical therapy twice before work and twice after work. (N.T., 8/28/12, at 6-7.) Limiting work hours to four hours per day, two days per week unreasonably reduces the possibility of succeeding in a search for work and does not establish a realistic attachment to the job market. See Rohde, 28 A.3d at 244-45 & n.11; see also Unemployment Compensation Board of Review v. Wilson, 354 A.2d 260, 262 (Pa. Cmwlth. 1976) (limiting work hours to one or two hours per day does not establish a realistic attachment to the job market).
Moreover, although Claimant now argues that she was available to work evenings and weekends when her son's father would be home to care for him, Claimant did not testify to this availability at the hearing and cannot now argue it before this court. See Merida v. Unemployment Compensation Board of Review, 543 A.2d 593, 596 (Pa. Cmwlth. 1988).
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 15th day of October, 2013, we affirm the November 19, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge