Opinion
No. 2140 C.D. 2010
08-16-2011
David C. Castelli, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
David Castelli (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. The Board found that Claimant voluntarily quit his job without cause of a necessitous and compelling nature, rendering him ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law). Discerning no error in the Board's adjudication, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was hired in April 2009 by Marquee Cinemas (Employer) as the general manager of its theater located in the Mall at Steamtown in Scranton. Claimant terminated his employment on July 31, 2009, alleging that he had been subjected to repeated harassment by representatives of Employer's landlord, Steamtown Mall Partners (Landlord). The Scranton UC Service Center determined that Claimant did not have a necessitous and compelling reason for quitting his job and was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b). The UC Service Center specifically found that "Claimant voluntarily quit because he was trying to take over the business as an owner and his deal did not work out." Certified Record, Item No. 4, at 1 (C.R.___). Claimant appealed. On May 19, 2010, the Referee conducted a hearing, at which Claimant appeared live and Employer participated by telephone.
Claimant testified that Employer's President, Curtis McCall, hired him to improve the physical condition of the theater and to grow the business. According to Claimant, McCall knew that Claimant was interested in eventually purchasing the theater. Claimant testified that on June 23, 2009, Landlord informed him that "there was no way that [Landlord] was interested in having me run the theater, or take over the theater." Notes of Testimony, May 19, 2010, at 7 (N.T. ___). This conversation was but one example of a pattern of conduct that Claimant described as Landlord "relentlessly ... coming over and trying to intimidate me, I felt to get me out of the theater." Id. Claimant testified that he was intimidated by Landlord's conduct and felt the situation "was out of hand." N.T. 8. Claimant opined that his separation from employment was a "constructive termination," prompted by "intimidation between [Landlord] and [Employer]." N.T. 14.
On cross-examination, Claimant testified that Employer's Chief Financial Officer, Cindy Ramsden, knew that Landlord was harassing him because Claimant notified Employer's home office. Claimant acknowledged that he runs a sideline snack foods business but denied that he quit his job to concentrate on that business. Claimant insisted that he was financially able to buy the theater.
Employer first presented the testimony of Cindy Ramsden. She testified that Claimant quit his job by sending an e-mail to McCall, who then forwarded the e-mail to Ramsden. Ramsden testified that Claimant could have continued his employment as Employer's general manager had he not chosen to leave. According to Ramsden, Claimant quit because "he was not financially able to assume operations of the theater which was his ultimate goal. It had nothing to do with our employment situation with him." N.T. 15.
Employer next presented the testimony of Curtis McCall. McCall testified that Employer had an ongoing dispute with Landlord concerning rent and the theater's performance that pre-dated Claimant's brief employment. McCall did not believe these issues directly affected Claimant as general manager. McCall explained that it was the mutual goal of the parties for Claimant to purchase the theater after he had managed it for a couple of years.
Regarding the circumstances of Claimant's separation from employment, McCall testified that Claimant telephoned him to give two weeks notice. During that call, Claimant stated that he did not think the arrangement would work out and it was "time to concentrate on his own business." N.T. 13. Three days later, Claimant left without warning, thereby abrogating his two weeks notice. McCall further testified that he did not "feel there was any situations at the mall that would cause [Claimant] to walk away." Id.
The Referee found that Claimant was harassed by Landlord and led to believe that "he would never be given the chance to own the theater there." C.R., Item No. 12, at 2. The Referee further found that Claimant quit because Employer changed the terms of his employment by not encouraging Claimant in his desired purchase of the theater. Concluding that these facts constituted a necessitous and compelling reason to voluntarily resign, the Referee held that Claimant was eligible for benefits. Employer appealed to the Board.
The Board reversed the Referee, resolving all conflicts in testimony in favor of Employer. The Board found that Claimant voluntarily terminated his employment to concentrate on his own business venture; that Claimant was financially unable to buy Employer's theater business; and that he never had an agreement with Employer to purchase the theater. According to the Board, Claimant was not personally harassed; did not advise upper management prior to quitting his job that he had been harassed; and could have remained employed as Employer's general manager. Claimant now petitions this Court for review.
On appeal, Claimant presents two issues. First, Claimant challenges the Board's findings that he was not harassed by Landlord and did not advise Employer of this harassment. Claimant contends that the Board failed to consider a letter from McCall to Landlord dated November 13, 2009, in which McCall acknowledged Landlord's harassment of Claimant and that it caused him to quit. Second, Claimant argues that the Board erred in disregarding a petition for personal bankruptcy he filed in January 2010 before he sought unemployment benefits.
This Court's scope of review in an unemployment compensation case is limited to determining whether constitutional rights were violated, whether an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. Blue v. Unemployment Compensation Board of Review, 616 A.2d 84, 86 n.4 (Pa. Cmwlth. 1992).
In a voluntary quit case, the claimant has the burden to prove that he resigned for necessitous and compelling reasons. Draper v. Unemployment Compensation Board of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998). Cause of necessitous and compelling nature is defined as circumstances that produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 832-833 (Pa. Cmwlth. 1977). In addition, a claimant must demonstrate that he acted with ordinary common sense in leaving his employment; made reasonable efforts to preserve his employment; and had no other real choice but to quit. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002).
The Board is the ultimate finder of facts and, as such, has the discretion to make credibility determinations and resolve conflicts in the evidence. City of Pittsburgh, Department of Public Safety v. Unemployment Compensation Board of Review, 927 A.2d 675, 679 (Pa. Cmwlth. 2007). The Board's credibility determinations are binding on this Court. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997).
Claimant first contends that the Board erred in its finding about Claimant's harassment, noting that the Board failed to consider the contents of McCall's letter to Landlord of November 13, 2009, stating, in relevant part, as follows:
Employer, as intervenor in this matter, counters that Claimant's brief does not specifically challenge the Board's Findings of Fact No. 4 and 6 and, therefore, this issue is waived. See Pa. R.A.P. 2116(a) ("[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). We disagree with Employer's waiver argument. Claimant does challenge the substance of Findings of Fact No. 4 and 6 in his brief, albeit summarily.
Prior to the fire, the theater was performing below our expectations. With your encouragement, we hired [Claimant] as manager to improve the theater's operation. [Claimant] had run his own theater in another area of Scranton and had significant managerial experience. Everyone involved understood that [Claimant] hoped to take over the theater at some point in the future once performance improved. However, a few short weeks into his tenure, you aggressively confronted [Claimant] at the theater and told him he would never have the opportunity to take over the theater and he promptly quit. Why you took this action still baffles us. Having [Claimant] run and improve the theater's operation was in everyone's best interest. The confrontation with [Claimant] was one of several incidents where agents of the Mall entered our premises and made harassing and disparaging remarks about the theater and [Employer] generally to our managers and employees. Please be advised that if litigation continues we intend to bring claims against the Mall for what we believe have been deliberate and bad faith actions to interfere with our employees and to otherwise hinder the theater's operation.C.R., Item No. 9, at 6-7 (emphasis added). This letter was written long after Claimant's resignation and in the context of settling a dispute between Employer and Landlord.
Based upon the McCall letter, we agree with Claimant that the Board's finding that he was not harassed by Landlord is contrary to the evidence. However, showing that circumstances existed that compelled him to quit was only part of Claimant's burden. He also had to prove that he made a reasonable effort to preserve his employment. We agree with Employer, as intervenor in this matter, that Claimant did not satisfy this part of his burden.
The Board elected not to file a brief in this case.
The Board found that Claimant did not advise Employer of the alleged harassment before resigning. This finding is supported by McCall's credited testimony that Claimant did not inform Employer, prior to giving two weeks notice, of his dissatisfaction. McCall's letter to Landlord, written in November 2009 after Claimant quit, does not show that Employer was aware of Landlord's harassment before Claimant quit.
Moreover, and more importantly, there is no evidence that Claimant made any attempt to preserve his employment. Claimant resigned via e-mail on July 31, 2009. His resignation e-mail stated:
Curtis, I will be resigning as GM of your Steamtown location the pay period ending July 31, 2009. I will be glad to assist in the transition. You and I both know the [Mall's] intentions and [they] don't include me or my company. I will make myself available on an on call basis for any emergencies.C.R., Item No. 9, at 2. Claimant did not mention Landlord's harassment in this resignation, and the Board credited McCall's testimony that Employer did not know of the harassment before Claimant quit. Accordingly, Claimant deprived Employer of any opportunity to resolve the alleged harassment. In short, Claimant failed to prove that he had no choice but to quit.
In his second issue, Claimant contends that the Board was precluded from denying his claim for unemployment benefits because he filed for personal bankruptcy in January 2010 and is suffering financial hardship. Claimant believes that filing for bankruptcy somehow entitles him to benefits. This is not the case, and Claimant has provided no legal authority to support this position. In any event, an unemployment claim is not based on a claimant's financial need but, rather, upon the employee's eligibility under the terms of the Law. Claimant's contention is entirely without merit.
Accordingly, we affirm the decision of the Board.
Claimant's application to expedite, filed July 27, 2011, is dismissed as moot.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 16th day of August, 2011, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated August 11, 2010, is hereby AFFIRMED. Claimant's application to expedite review of his petition for review is DISMISSED as moot.
/s/_________
MARY HANNAH LEAVITT, Judge