“Whether one is able and available for suitable work is a question of fact unless the restriction on job availability is so untenable and illustrative of a lack of good faith as to be disqualifying as a matter of law[.]”
How later courts described this case
- “Whether one is able and available for suitable work is a question of fact unless the restriction on job availability is so untenable and illustrative of a lack of good faith as to be disqualifying as a matter of law[.]”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Mirande, :
Petitioner :
v. : No. 1141 C.D. 2021
: Submitted: August 19, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 16, 2022
Michael Mirande petitions for review of the September 22, 2021 order of the
Unemployment Compensation Board of Review (Board) that affirmed the decision
of the referee and found Claimant ineligible for unemployment compensation (UC)
benefits. The referee concluded Claimant was not able to work and available for
suitable work under Section 401(d)(1) of the Unemployment Compensation Law.1
After careful review, we affirm.
I. Background and Procedural History
Claimant took a leave of absence from his employment with Your Wireless
Management LLC (Employer) in March 2020 and applied for UC benefits in April
2020. The Erie UC Service Center issued a notice of determination on December
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1).
11, 2020, indicating Claimant was ineligible for UC benefits for the weeks ending
March 28, 2020, through November 28, 2020. The notice explained that Claimant
did not establish he was available for suitable work under Section 401(d)(1) because
his “reason for not being available for work is he will not put his loved ones at risk
during the [COVID-19] pandemic.” Certified Record (C.R.), Item No. 2, Notice of
Determination, 12/11/20, at 1.
Claimant appealed to a UC referee, who held a telephone hearing on March
4, 2021. Claimant participated pro se, while Employer presented the testimony of
Human Resources Manager Kitty Pasricha (Pasricha). Claimant testified he worked
about 20 hours per week for Employer from August 2016 until March 2020, when
he took an approved leave of absence. C.R., Item No. 6, Notes of Testimony (N.T.),
3/4/21, at 5-6. Employer operated a store that sold cellphones, among other things,
and Claimant worked as a sales associate. Id. at 5-8. Claimant testified he became
concerned Employer was not doing enough to protect against the spread of COVID-
19 in the store. Id. at 7. Claimant specifically alleged a lack of personal protective
equipment and safety protocols. Id. at 7-8. According to Claimant, “I informed my
[d]istrict [m]anager that until the situation became fixed, that I would be taking a
leave of absence.”2 Id. at 8.
Claimant testified he took the leave of absence not so much because he feared
contracting COVID-19 personally, but because he was engaged in rotations as a full-
2
Claimant’s testimony indicates Employer’s store was able to remain open following Governor
Wolf’s disaster declaration and order directing closure of “non-life sustaining businesses.” C.R.,
Item No. 6, N.T., 3/4/21, at 8; see generally Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa.
2020).
2
time pharmacy student.3 Id. at 7-10. Further, Claimant testified he and his girlfriend
“started up a charity” in April 2020, which raised money to purchase meals from
local businesses and “deliver those meals to hospitals and the nursing homes which
were the hot spots of COVID.” Id. at 9-10. Although Claimant earned no income
from this charity, he described it as a “pretty big full-time job” in which he invested
“probably about like 30, 35 hours per week . . . .” Id. at 10. He insisted Employer’s
store “was not a safe environment to be in. And it wouldn’t protect anybody in the
community, nor it have [sic] protected any of the patrons I would be running into.”
Id. at 9.
Claimant testified Employer contacted him via his district manager in April
2020 and asked whether he “would be interested in staying on payroll at 75%.” Id.
Because Claimant had already filed for UC benefits, however, the district manager
informed him that he did not qualify.4 Id. Claimant nonetheless asserted he “made
it clear even in my original leave of absence that I would still be willing to come into
work, and I have been able to work . . . .” Id. When the referee asked Claimant how
he would have been able to work given his status as a full-time student and his time
spent volunteering, Claimant replied:
3
Claimant alleged in his petition for appeal from the Service Center’s notice of determination that
his clinical rotations exposed him to “many immune-compromised patients[.]” C.R., Item No. 3,
Petition for Appeal, 12/26/20, at 4.
4
While Claimant describes this as an offer to “return to work . . . at 75% salary,” Claimant’s Br.
at 8 (citation omitted), text messages included in the supplemental record demonstrate the district
manager told Claimant he “won’t be coming to work[.] It’s a payroll program[.]” Suppl. R.,
Claimant’s Ex. A. The Board submits, Board’s Br. at 10 n.6, that the district manager’s proposal
was likely related to the Paycheck Protection Program, enacted as a part of the Coronavirus Aid,
Relief, and Economic Security Act, see 15 U.S.C. § 636(a)(36).
3
Well, I mean I would have been able to work, because we would have
eventually I guess had to dial back the charity work or find other
volunteers to help. But I would -- would be willing to work.
....
If it was offered, I would -- I would have came [sic] back. But I was
never reached out [sic] at any point, other than those messages in April.
Id. at 10.
Pasricha testified concerning Employer’s COVID-19 safety protocols as they
existed around the time Claimant took his leave of absence. These included things
like placing “shields” on every desk in the store, having only one customer enter the
store at a time, and providing personal protective equipment. Id. at 10-11. When
Claimant insisted that the store where he worked did not have shields on every desk,
Pasricha candidly acknowledged that she did not see the shields herself, “but that is
the information that was given to us, by our management, that every single store has
sent been [sic] this.” Id. at 12.
The referee issued a decision on March 10, 2021, which affirmed the Service
Center’s determination and denied Claimant’s appeal. Like the Service Center, the
referee relied on Section 401(d)(1). The referee explained Claimant was not able to
work and available for suitable work because he “was not realistically attached to
the job market as a full[-]time student and doing the business of setting up a charity
and then working for said charity hours which are sufficient to constitute a full[-
]time job, per his testimony.” C.R., Item No. 7, Referee’s Decision, 3/10/21, at 2.
Claimant retained counsel and appealed to the Board, which issued an order
on September 22, 2021. The Board affirmed the referee, adopting and incorporating
her findings and conclusions.5 Claimant filed a petition for review in this Court and
5
The Board’s Chairman noted his dissent.
4
now primarily challenges the finding that he was not able to work and available for
suitable work under Section 401(d)(1).
II. Discussion
This Court reviews orders granting or denying UC benefits for violations of a
petitioner’s constitutional rights, violations of agency practice and procedure, and
other errors of law. 2 Pa.C.S. § 704. We also review whether substantial evidence
supports the findings of fact necessary to sustain the decision. Id. The Board is the
ultimate factfinder in these cases and entitled to assess witness credibility and weight
of the evidence. Hubbard v. Unemployment Comp. Bd. of Rev., 252 A.3d 1181, 1185
n.2 (Pa. Cmwlth. 2021) (citing Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d
1383, 1388 (Pa. 1985)). Accordingly, we view the evidence in a light most favorable
to the party that prevailed before the Board, granting it the benefit of all logical and
reasonable inferences. Sweeney v. Unemployment Comp. Bd. of Rev., 74 A.3d 1175,
1177 n.1 (Pa. Cmwlth. 2013) (citing Taylor v. Unemployment Comp. Bd. of
Rev., 378 A.2d 829, 831 (Pa. 1977)). If substantial evidence supports the Board’s
findings, they are binding on appeal. Allen v. Unemployment Comp. Bd. of Rev., 189
A.3d 1128, 1133 (Pa. Cmwlth. 2018) (citing Kelly v. Unemployment Comp. Bd. of
Rev., 776 A.2d 331, 336 (Pa. Cmwlth. 2001)).
In his brief, Claimant challenges the finding that he was not able to work and
available for suitable work because he was a full-time student. Claimant’s Br. at 12.
Claimant argues he was a full-time student while working for Employer previously
and cites case law explaining that status as a full-time student does not automatically
disqualify a claimant from receiving UC benefits. Id. at 13-15, 24 (citing Scardina
v. Unemployment Comp. Bd. of Rev., 537 A.2d 388 (Pa. Cmwlth. 1988)). Claimant
further challenges the finding that he was not able to work and available for suitable
5
work due to his volunteer activity. He relies on his testimony before the referee that
he would have been willing to “dial back” his volunteering to accept employment.
Id. at 16 (citing C.R., Item No. 6, N.T., 3/4/21, at 10). Claimant suggests the referee
viewed him as “self-employed” and attempts to refute this characterization.6 Id. at
17-18.
Section 401(d)(1) provides that a claimant will qualify for UC benefits if, in
relevant part, he or she “[i]s able to work and available for suitable work . . . .” 43
P.S. § 801(d)(1). Although a claimant bears the burden of proving availability for
suitable work, an unemployed worker who registers for UC benefits is presumed to
be available under Section 401(d)(1). Rohde v. Unemployment Comp. Bd. of Rev.,
28 A.3d 237, 243 (Pa. Cmwlth. 2011) (citing Koba v. Unemployment Comp. Bd. of
Rev., 370 A.2d 815 (Pa. Cmwlth. 1977); Penn Hills Sch. Dist. v. Unemployment
Comp. Bd. of Rev., 437 A.2d 1213 (Pa. 1981)). This presumption is rebuttable with
evidence that a claimant’s physical condition limits the type of work he or she can
perform, or that a claimant voluntarily placed restrictions on the type of work he or
she is willing to accept. Id. (citing Molnar v. Unemployment Comp. Bd. of Rev., 397
A.2d 869 (Pa. Cmwlth. 1979)). If evidence rebuts the presumption of availability,
the burden shifts to the claimant to establish that he or she was able to do some type
of work, and that there was a reasonable opportunity for securing work. Id. (citing
Molnar, 397 A.2d 869). The ultimate issue is whether conditions on the claimant’s
employment would “so limit his availability as to effectively remove him from the
labor market.” Id. (quoting Harwood v. Unemployment Comp. Bd. of Rev., 531 A.2d
823, 826 (Pa. Cmwlth. 1987)). Stated differently, the issue is whether the conditions
6
Claimant also contends he had a necessitous and compelling reason for leaving employment with
Employer. We need not address this issue as we conclude that Claimant is ineligible due to his
unavailability for work.
6
“would give a search for employment an unreasonably low possibility of success.”
Kuzma v. Unemployment Comp. Bd. of Rev., 523 A.2d 830, 833 (Pa. Cmwlth. 1987)
(citing Goodwin v. Unemployment Comp. Bd. of Rev., 378 A.2d 1308 (Pa. Cmwlth.
1977)) (footnote omitted).
Applying these principles here, Claimant registered for UC benefits and was
presumed to be able to work and available for suitable work.7 Rohde, 28 A.3d at 243
(citing Penn Hills Sch. Dist., 437 A.2d 1213). Claimant placed restrictions on the
type of work that he was willing to accept, however, by being a full-time student and
engaging in extensive volunteer activity. Id. (citing Molnar, 397 A.2d 869). The
burden therefore shifted to Claimant, who failed to testify that there was any type of
work he was able to do or that he had a reasonable opportunity to secure work with
these restrictions. See id. (citing Molnar, 397 A.2d 869).
Claimant is correct that being a student by itself did not disqualify him from
receiving UC benefits. Scardina, 537 A.2d at 390. As this Court has explained, “a
claimant who is ready, willing and able to engage in some substantial employment
may be eligible for some benefits even though he limits his availability to part-time
work.” Id. (citing Kuzma, 523 A.2d 830). The problem with Claimant’s argument
is that he was also engaging in extensive volunteer activity while he was a student.
Claimant described his volunteering as a “pretty big full-time job” on which he spent
“probably about like 30, 35 hours per week . . . .” 8 C.R., Item No. 6, N.T., 3/4/21,
7
Notably, “a person on a leave of absence from his job is not presumed to be unavailable for work.
A person on a leave of absence from one job may be able and available for other work.” St. John
v. Unemployment Comp. Bd. of Rev., 529 A.2d 1218, 1220 (Pa. Cmwlth. 1987) (citing Pa. Elec.
Co. v. Unemployment Comp. Bd. of Rev., 450 A.2d 779 (Pa. Cmwlth. 1982)).
8
Claimant explained this time commitment as follows: “[I]n the beginning it was soliciting people
for donations, setting up social media, contacting State Reps . . . . And that includes with the
deliveries, setting up phone calls, setting up meetings.” C.R., Item No. 6, N.T., 3/4/21, at 10.
7
at 10. Once again, this Court must view the evidence in the light most favorable to
Employer as the party that prevailed before the Board, granting it the benefit of all
logical and reasonable inferences. Sweeney, 74 A.3d at 1177 n.1 (citing Taylor, 378
A.2d at 831). It is reasonable to infer that Claimant’s restrictions of being a student
and volunteering, when viewed collectively, would render him unavailable for work
under Section 401(d)(1).
Claimant’s only contrary testimony was his assertion that he would have been
willing to “dial back” his volunteering to accept employment. C.R., Item No. 6,
N.T., 3/4/21, at 10. The Board is the ultimate finder of fact in these matters,
Hubbard, 252 A.3d at 1185 n.2 (citing Peak, 501 A.2d 1383), and the availability of
a claimant under Section 401(d)(1) is generally a question of fact that lies with the
Board. Penn Hills Sch. Dist., 437 A.2d at 1214-15; see also Hower & Son v.
Unemployment Comp. Bd. of Rev., 509 A.2d 1383, 1386 (Pa. Cmwlth. 1986)
(“Whether one is able and available for suitable work is a question of fact unless the
restriction on job availability is so untenable and illustrative of a lack of good faith
as to be disqualifying as a matter of law[.]”) (citation omitted). As the factfinder,
the Board was free to reject Claimant’s testimony as lacking credibility. Ellis v.
Unemployment Comp. Bd. of Rev., 59 A.3d 1159, 1164 (Pa. Cmwlth. 2013) (quoting
Wideman v. Unemployment Comp. Bd. of Rev., 505 A.2d 364, 368 (Pa. Cmwlth.
1986)).
III. Conclusion
Accordingly, viewing the evidence in the light most favorable to Employer as
the prevailing party, Sweeney, 74 A.3d at 1177 n.1 (citing Taylor, 378 A.2d at 831),
we conclude substantial evidence supports the Board’s decision that Claimant was
not able to work and available for suitable work under Section 401(d)(1), and we
8
affirm the Board’s September 22, 2021 order, which affirmed the referee’s decision
deeming Claimant ineligible for UC benefits.
______________________________
STACY WALLACE, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Mirande, :
Petitioner :
v. : No. 1141 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 16th day of November 2022, the September 22, 2021
order of the Unemployment Compensation Board of Review is AFFIRMED.
______________________________
STACY WALLACE, Judge