The opinion
[J-1-2021] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CAITLIN QUIGLEY, : No. 20 EAP 2020
:
Appellee : Appeal from the Order of
: Commonwealth Court entered on
: 1/28/2020 at No. 1449 CD 2017
v. : vacating/remanding the Order
: entered on 8/8/2017 by the
: Unemployment Compensation Board
UNEMPLOYMENT COMPENSATION : of Review at No. B-17-09-G-2764
BOARD OF REVIEW, :
: ARGUED: March 9, 2021
Appellant :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: November 17, 2021
The hallmarks of procedural due process are “notice and an opportunity to present
evidence and legal argument.” Vann v. UCBR, 494 A.2d 1081, 1084 (Pa. 1985). The
Majority agrees with the Commonwealth Court that Quigley’s procedural due process
rights were violated when the Unemployment Compensation Board of Review (“Board”)
sua sponte concluded that she was ineligible for unemployment compensation benefits,
where the issue of her eligibility was not raised in her appeal to the Board or below. Maj.
Op. at 1.1 However, the record reveals that a “sua sponte” characterization of the Board’s
1 At the outset, I am troubled by the Commonwealth Court’s request for supplemental
briefing from the parties to address the Board’s scope of authority. Although neither party
raised that issue, this additional issue led to the Commonwealth Court’s decision, which
this Court agreed to review and a majority of this Court now affirms. Quigley v. UCBR,
225 A.3d 914, 919 (Pa. Commw. 2020); Quigley v. UCBR, 237 A.3d 410 (Pa. 2020) (“Did
the Commonwealth Court violate the Unemployment Compensation Law and this Court’s
review of Quigley’s eligibility is incorrect. The issue of eligibility was raised with the filing
of Quigley’s claim and expressly ruled upon by both the Department of Labor and Industry
(“Department”) and the referee. According to the Unemployment Compensation Law
(“UCL”)2 and the Department’s regulations, the Board was required to review the referee’s
decision, which included the issue of Quigley’s eligibility for benefits. It was under no
obligation to advise the claimant that it would be exercising its statutory authority to
conduct this review. Therefore, it was not required to give notice that the issue of
Quigley’s eligibility was subject to its review. Furthermore, Quigley had an opportunity to
be heard on her claim before the referee, and the Board was not required to provide a
hearing to take additional evidence. Accordingly, I dissent.
The threshold issue attending any claim for unemployment compensation benefits
is eligibility, as many exclusions may apply that could foreclose the receipt of benefits,
including, in this case, self-employment. 43 P.S. § 802 (Ineligibility for compensation).3
decision in Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 501 A.2d 1383
(1985) by misapplying Lyness v. State Bd. of Med., 529 Pa. 535, 605 A.2d 1204 (1992)
to improperly limit the scope of the Board’s review solely to the issues raised by the
appellant?”). Respectfully, the Commonwealth Court does not have the authority to sua
sponte raise an issue for its own consideration. It must decide an appeal as it is filed. In
my view, the appropriate disposition of this appeal is to vacate the decision of the
Commonwealth Court and remand for a decision based on the issues raised by the
appellant. Because the Majority decides the merits of the issue raised by the
Commonwealth Court, I write to express my dissenting view.
2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 751–919.10.
3 Section 402(h) of the UCL, 43 P.S. § 802(h), is known as the self-employment exclusion
and contains the sideline business exception:
An employe shall be ineligible for compensation for any week--
* * *
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The Department had to consider the income from Quigley’s editing business to determine
both her eligibility (whether sideline business exception to self-employment exclusion
applied) and the calculation of benefits (reduction of benefits based on the amount of
sideline business income). 43 P.S. §§ 802(h), 804. Because, in this context, the income
inquiry relates to eligibility and the rate of compensation, I agree with Judge Cohn
Jubelirer that review of one component necessarily involves review of the other. Quigley
v. UCBR, 225 A.3d 914, 929 (Pa. Commw. 2020) (Cohn Jubelirer, J., dissenting) (“An
appeal as to one is an appeal to both.”).
Quigley raised the eligibility issue when she disclosed her editing business to the
Department, Transcript of Testimony, 5/9/2017 (hereinafter, “T.T.”), Exhibit # 4 (Claimant
Questionnaire, 4/11/2017, ¶ 6), and she had the burden of proving that the income from
her editing business did not disqualify her from receiving benefits. Kress v. UCBR, 23
A.3d 632, 636 (Pa. Commw. 2011). The Department recognized the eligibility issue —
“There is a sideline business eligibility issue.” T.T., Exhibit # 3 (Notice of Determination,
(h) In which he is engaged in self-employment: Provided,
however, That an employe who is able and available for full-
time work shall be deemed not engaged in self-employment
by reason of continued participation without substantial
change during a period of unemployment in any activity
including farming operations undertaken while customarily
employed by an employer in full-time work whether or not
such work is in “employment” as defined in this act and
continued subsequent to separation from such work when
such activity is not engaged in as a primary source of
livelihood. Net earnings received by the employe with respect
to such activity shall be deemed remuneration paid or payable
with respect to such period as shall be determined by rules
and regulations of the department.
43 P.S. § 802(h). See Lowman v. UCBR, 235 A.3d 278 (Pa. 2020) (setting forth test for
determination of self-employment under Section 802(h)).
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4/12/2017, ¶ 1). Based solely on Quigley’s application, which asserted the pure
conclusion of law that she engaged in a sideline business, the Department expressly
resolved the eligibility issue in her favor, finding that she was engaged in a sideline
business, not self-employment, and, therefore, she was “eligible for benefits beginning
with waiting week ending 4/8/2017 under Section 402(h) of the Pennsylvania UC Law.”
T.T., Exhibit # 3 (Notice of Determination, 4/12/2017, at 1). Because Quigley received
income from her self-proclaimed sideline business, the Department then calculated the
amount of income to be deducted from her weekly unemployment compensation benefits,
concluding that a “prorated weekly deductible amount [of] $237” was required. Id. (Notice
of Determination, 4/12/2027, ¶ 4).
On appeal, Quigley challenged only the calculation of the deduction based on her
2016 income from editing. Petition for Appeal, 4/18/2017, Attachment (Email to ra-li-uc-
appeals@pa.gov, April 18, 2017). The record before the referee consisted only of the
“UC File Folder.” T.T., at 1. It confirms the referee’s understanding that the income
generated from Quigley’s editing business was relevant to her eligibility and to the rate of
compensation. The referee’s “Notice of Hearing” contained the following text: “SPECIFIC
ISSUES to be considered in this appeal … #18 - Section 402(h)–Whether claimant is
engaged in self-employment.” T.T., Referee Exhibit #1 (Notice of Hearing, 4/26/2017, at
1). In reviewing Quigley’s appeal, the referee further stated the issue as: “Is the
claimant’s income from self-employment deductible from UC, and, if so, to what extent?”
Referee’s Decision & Order, 5/11/2017, at 2.
The Majority’s construct of this record ignores the fact that the Notice of Hearing
specifically indicated that the claimant’s engagement in self-employment, and therefore
[J-1-2021] [MO: Todd, J.] - 4
her eligibility, was at issue. Likewise, the first part of the second issue noted by the
referee – “is the claimant’s income from self-employment deductible from UC” — squarely
requires a determination that Quigley was engaged in a sideline business and therefore
eligible, leading to the second part of the issue — “and, if so, to what extent.” In my view,
to read the Notice of Hearing and the referee’s decision to exclude the eligibility issue
requires a complete contortion of words.
Nothing in the record supports the Majority’s assertion that the referee did not rule
on the eligibility issue or provide her “own independent reasoned decision” regarding
eligibility. Maj. Op. at 31. To the contrary, the record indicates that the referee made
findings of facts and discussed the relevant law, including the self-employment exclusion,
the sideline business exception, and the computation of weekly earnings provisions, and
then made conclusions of law based on her application of the law to the facts. T.T.,
Exhibits ## 4, 5; Referee’s Decision & Order, 5/11/2017, at 1–3. The referee affirmed the
Department’s determination of eligibility, expressly stating in her order that Quigley “is
NOT DISQUALIFIED from receiving compensation under” Section 402(h) of the UCL.
Referee’s Decision & Order, 5/11/2017, at 3 (emphasis in original).
Agreeing with the Commonwealth Court, the Majority opines that the referee did
not expressly rule on the eligibility issue because there was “no active controversy
regarding this issue for the referee to decide.” Maj. Op. at 30. The Majority’s view of
Quigley’s claim for benefits is divorced from the relevant facts of record in this case. In
her application, Quigley submitted a questionnaire and a Schedule C to her 2016 tax
return to support her conclusion that she was self-employed in a sideline business (a
statutorily defined status). On appeal to a referee for the finding of eligibility for benefits
[J-1-2021] [MO: Todd, J.] - 5
in the amount awarded, Quigley did not appear for the hearing where the specific issue
to be determined was whether she was self-employed and engaged in a sideline business
and entitled to benefits in an amount to be determined. The Department’s Service
Center’s determination of eligibility was not being “challenged” in an adversarial manner.
Instead, at the hearing, the claimant had a burden of proof to meet: provide evidence
that she was statutorily entitled to benefits and, if so, provide evidence to support a
calculation of the benefits she should receive. On appeal to the Board, it was free to
review the record (the application questionnaire and a Schedule C to her 2016 tax return)
and make the ultimate determination on eligibility. Having taken an appeal, the statute
clearly places the burden on the claimant to establish the nature of her self-employment
because without that predicate proof, no award of benefits can be made.
The Majority’s view that absent a contest by the employer, a finding of self-
employment cannot be the subject of a referee’s inquiry cannot be correct. While some
unemployment compensation eligibility requirements can be conceded by an employer,
e.g., not a voluntary quit or no willful misconduct, an employer is without knowledge or
information to support a concession on the claimant’s assertion of a statutory exception
from the self-employment exclusion. That information is exclusively within the knowledge
of the claimant. The Majority’s rationale and holding means that an employer can force
payment of UC benefits even if the claimant is not entitled to benefits and that neither the
referee nor the Board can require proof by the claimant where a claimant appeals from
the amount of benefits awarded. While the unemployment compensation law must be
liberally construed in favor of awarding benefits, the result endorsed by the Majority is
untenable.
[J-1-2021] [MO: Todd, J.] - 6
The referee expressly ruled that Quigley was not disqualified from receiving
benefits by her editing business, and the Board, in recounting the procedural history of
this case, acknowledged that the Department “issued a determination granting benefits
to the claimant under Section 402(h) of the Unemployment Compensation Law … [and]
the Referee issued a decision affirming the Department’s determination under Section
402(h) … .” Decision and Order, 8/8/2017, at 2 (emphasis supplied). Thus, the Board
was required to consider the eligibility issue as part of its review. Although the
Department and referee make decisions regarding eligibility, the Board is the ultimate fact
finder. Ductmate Indus., Inc. v. UCBR, 949 A.2d 338, 342 (Pa. Commw. 2008).
According to Section 504 of the UCL, on appeal from a referee’s decision, the Board “shall
have power … [to] review any claim … decided by[] a referee and … may affirm, modify,
or reverse” the referee’s determination “on the basis of the evidence previously submitted
in the case.” 43 P.S. § 824; Maj. Op. at 28 (“Section 824 establishes the Board’s right to
conduct appellate review.”). According to the Department’s regulations, the appellate
“tribunal shall consider the issues expressly ruled upon in the decision from which the
appeal was filed.” 34 Pa. Code § 101.87 (emphasis supplied). See also 34 Pa. Code
§ 101.107(b) (“The Board shall consider the issues expressly ruled upon in the
decision from which the appeal was filed.”) (emphasis supplied)). Because the referee
expressly ruled on the eligibility issue, that issue was squarely before the Board when it
exercised its discretion to review the award based on Quigley’s appeal to it. Quigley’s
eligibility was not raised sua sponte. The UCL and Department regulations required the
Board to review eligibility, which was an issue at every stage of the proceeding. I cannot
discern any basis to require notice by the Board to a claimant that it will exercise its
[J-1-2021] [MO: Todd, J.] - 7
statutory authority. Respectfully, in my view, the Majority effectively rewrites the statute
to reach its conclusion.
Based on its premise that the eligibility issue was not expressly ruled upon, the
Majority further claims that Quigley was prejudiced “by [the Board] depriving her of … the
opportunity to be heard” on the question of eligibility. Maj. Op. at 34. In support, the
Majority cites 34 Pa. Code § 101.107(a), which provides: “[I]ssues not previously
considered or raised will not be considered by the Board, either upon application for, or
in the determination of an appeal unless the speedy administration of justice, without
prejudice to any party, will be substantially served thereby and are supported by the
record.” The Majority’s reasoning is unsound because Section 101.107(a) applies when
an issue was not previously considered or raised. As demonstrated, Quigley raised the
eligibility issue when she applied for benefits, and the Department and referee expressly
ruled on it. Thus, the Board was required to review it.
Furthermore, Quigley cannot dispute that she had an opportunity to be heard. She
received a Notice of Hearing, advising her of a referee hearing scheduled for May 9, 2017
which, as recounted, notified her that her eligibility was at issue. On April 30, 2017, nine
days before the hearing, she sent an email to the Board requesting a continuance4 until
4 Included within the hearing notice was a provision titled “Continuance of Hearing”:
If you cannot attend the hearing for any reason, you may
request a continuance (postponement) of the hearing. You
should do this as soon as possible. The Referee will grant
this only for “proper cause” and upon terms that he/she deems
proper. If a continuance is granted, a rescheduling will follow.
Requests for a continuance must be made in writing.
T.T., Referee Exhibit #1 (Notice of Hearing, 4/26/2017, at 3) (emphasis in original).
[J-1-2021] [MO: Todd, J.] - 8
“after the date of May 25, 2017” because she was “not able to appear in person on [May
9, 2017].” Email to RA-LI-UCBR-Philadelp@pa.gov, 4/30/2017. The next morning, May
1, 2017, a referee identified as “Beth” called Quigley and left a voicemail message “stating
[the] request for continuance had been denied,” explaining that “the hearing office cannot
hold cases until the end of the month,” and asking “for a reason for her not being able to
attend the hearing.” T.T., Referee Exhibit #3 (Report of Telephone Call on Hearings,
5/1/2017). Quigley did not respond.
Fatal to Quigley’s request for relief are the facts that, at no time prior to the May 9,
2017 hearing, did she provide a “proper cause” reason for a continuance pursuant to 34
Pa. Code § 101.23(a)5 or take any measures to confirm the status of her continuance
request. Perhaps she believed that the documents she submitted on behalf of her
benefits claim were sufficient to establish eligibility and that her one-time email
communication was sufficient to secure a continuance.6 Nevertheless, because she
5 “Continuance of a hearing will be granted only for proper cause and upon the terms as
the tribunal may consider proper.” 34 Pa. Code § 101.23(a).
6 On April 19, 2017, prior to the email request for a continuance, Quigley left a telephone
message requesting that the Service Center contact her by email because her phone
would be out of service for three weeks. Unemployment Service Center Claim Record,
Annotation 170419 DHA7. She apparently presumed that her dictates as to her preferred
method of communication would be followed even though she did not receive any
confirmation. Justice Dougherty, in concurrence, points out that the Board’s regulations
require the referee to provide unrepresented parties with “every assistance compatible
with the impartial discharge of its official duties.” Concurring Op. at 3 (Dougherty, J.)
(citing 34 Pa. Code 101.21(a)). Assuming for the sake of argument that this regulation
pertains to scheduling matters, it does not relieve the applicant of exercising the most
basic modicum of diligence in confirming that the continuance had or had not been
granted. While I believe it is unreasonable for a claimant to presume that the individual
preferences of a multitude of applicants for benefits can be accommodated by a
government entity, it is cavalier for an applicant for benefits to fail to confirm the Service
Center’s intent to comply with the request for individualized treatment.
[J-1-2021] [MO: Todd, J.] - 9
chose not to confirm her request for a continuance or appear at the referee hearing,
Quigley gave up her opportunity to submit sufficient evidence to demonstrate her eligibility
and the proper deduction occasioned by her editing business income. T.T., at 1;
Referee’s Decision & Order, 5/11/2017, at 2. Critically, Quigley did not request that the
hearing be reopened,7 an option that may have provided her with a second opportunity
to provide proper cause for her absence and to be heard on the merits of her claim.
Despite Quigley’s failure to take advantage of this remedy to reopen the record, the
Majority expresses distress over the Board’s denial of Quigley’s request for reargument
before it. Majority Op. at 31. This was not an abuse of discretion and patently did not
“compound” a problem with the Board’s decision-making process. On two occasions,
Quigley purely and simply did not follow easy rules. Pro se litigants are not entitled to
relief from their disregard of opportunities presented to them. The Majority’s decision to
turn a blind eye to these record facts is baffling to me.
7Included within the hearing notice was a provision titled “Reopening after Scheduled
Hearing”:
If you are prevented from attending the scheduled hearing
because of a compelling reason, you may request to have the
hearing reopened. You must set forth the specific reasons
and circumstances that are alleged to constitute “proper
cause” for non-appearance at the scheduled hearing.
T.T., Referee Exhibit #1 (Notice of Hearing, 4/26/2017, at 3). See also 34 Pa. Code
§ 101.24(a) (providing that absent party must file written request to reopen case,
identifying the “proper cause” reasons for not appearing at scheduled time), and 34 Pa.
Code § 101.104(c)(3) (“The further appeal shall be allowed and additional evidence
required … [where u]nder § 101.24 (relating to reopening of hearing) a request for
reopening received after the decision of the referee was issued which constitutes a
request for further appeal to the Board.”).
[J-1-2021] [MO: Todd, J.] - 10
The Board was not required to give Quigley another hearing. The Board had
discretion to “allow or disallow any application for further appeal without hearing, solely
on the basis of the application and the record.” 34 Pa. Code § 101.104(a). Where the
Board allows an appeal, it “will review the previously established record and determine
whether there is a need for an additional hearing.” Id. § 101.104(c).8 Based on the
previously established record, the Board exercised its discretion as the final arbiter of
eligibility and rejected Quigley’s claim on the existing record, holding that she failed “to
present competent evidence for the [Board] to conclude that she fit into the sideline
activity exception.” Decision and Order, 8/8/2017, at 1.9
In sum, the record confirms that Quigley had the requisite notice of the eligibility
issue from the filing of her claim for unemployment compensation benefits and throughout
the appeal process. Quigley had the opportunity to submit evidence in support of her
claim for benefits and her challenge to the deduction amount, but she did not appear at
the referee hearing due to her own inaction, not the denial of due process. The Board
8 However, the Board must accept an appeal and take additional evidence where, inter
alia, the record below is silent, incomplete or erroneous regarding a material point or there
appears to have been a denial of a fair hearing. 34 Pa. Code § 101.104(c)(1–2). Notably,
Quigley does not argue that she was entitled to present additional evidence because the
record was silent, incomplete, or erroneous regarding the question of her eligibility or that
she was denied a fair hearing. It would have been disingenuous to claim that she was
denied a fair hearing because she failed to appear at the scheduled hearing and made
no effort to exercise her right to attempt to reopen the record.
9 Justice Dougherty provides a thoughtful argument that the Board’s decision was “based
upon violations of applicable administrative procedure, and the decision was not
supported by substantial evidence.” Concurring Op. at 5 (Dougherty, J.). Although
Justice Dougherty may have articulated grounds to affirm the Commonwealth Court “for
any reason,” the issue of whether the Board properly exercised its discretion as the final
arbiter of Quigley’s eligibility is not before this Court. Our grant of review was limited to
whether the Commonwealth Court’s decision unduly restricted the Board’s scope of
review. I maintain that it did.
[J-1-2021] [MO: Todd, J.] - 11
was required to review the referee’s express ruling on Quigley’s eligibility for benefits, but
it was not obligated to provide an additional hearing. I discern no abuse of discretion or
error of law by the Board. Accordingly, I would reverse the Commonwealth Court’s order.
[J-1-2021] [MO: Todd, J.] - 12