Opinion
No. 684 C.D. 2011
01-11-2012
David M. King, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
David M. King (Claimant) petitions pro se for review of that portion of the February 16, 2011, order of the Unemployment Compensation Board of Review (UCBR), which affirmed the decision of a referee to deny Claimant unemployment compensation (UC) benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Claimant states in his Petition for Review that he should not have to repay his unemployment compensation benefits pursuant to the no-fault provisions; however, Claimant does not address this issue in the argument section of his brief and, therefore, it has been waived.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Under section 402(b) of the Law, a claimant is ineligible for benefits for any week in which his unemployment is due to his voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant worked for Nemes Glass Corporation (Employer) as a glass installer from December 2, 2007, until May 7, 2010. Employer received complaints about Claimant's work performance from field supervisors and counseled Claimant regarding his conduct. About two weeks later, Employer received additional complaints regarding Claimant and, on May 7, 2010, met with Claimant to discuss the complaints. The discussion became heated and Employer told Claimant to "take a break" and spend a few days at home and come back to work when he was ready to do so with an improved attitude. Claimant called Employer's cellular phone the next day but did not leave a message, as he believed Employer would call him back when he saw the missed call. (Findings of Fact, Nos. 1-9.)
The UCBR adopted the findings and conclusions of the referee, as modified.
Employer did not call Claimant back, and Claimant did not attempt to call Employer again. Claimant filed for UC benefits, which were denied by the service center pursuant to section 402(b) of the Law. Claimant appealed to the referee, who held an evidentiary hearing and affirmed the service center. Claimant, thereafter, appealed to the UCBR.
On February 16, 2011, the UCBR, among other things, affirmed the referee's denial of benefits pursuant to section 402(b) of the Law. Claimant now petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Claimant argues that the UCBR erred in finding Claimant ineligible for benefits pursuant to section 402(b) of the Law because he did not voluntarily quit his employment with Employer. Rather, Employer discharged him. We disagree.
Whether or not a claimant's unemployment was the result of voluntarily leaving work is ultimately a question of law, reviewable by this court. Miller v. Unemployment Compensation Board of Review, 431 A.2d 1138, 1139 (Pa. Cmwlth. 1981). The burden of proof is on the claimant, and, where words are exchanged between an employee and his employer and the employee's termination follows, "in order for an employer's language to be interpreted as a discharge, it must possess the immediacy and finality of a 'firing.'" Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 561, 563 (Pa. Cmwlth. 1979).
The UCBR found that Claimant argued with Employer, that Employer directed Claimant to leave and that Employer told Claimant to come back to work when he was ready to do so with an improved attitude. (Findings of Fact Nos. 5-8.) The Employer's parting words, i.e., to come back with an improved attitude, did not have the immediacy and finality of a firing. Thus, the UCBR was correct in determining that Claimant voluntarily quit his employment.
However, a determination of a voluntary quit is not an absolute bar to the recovery of UC benefits. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006). Rather, a claimant may prove necessary and compelling reasons that could excuse his voluntary action. Id. A claimant seeking UC benefits after a voluntary quit has the burden of proving necessitous and compelling cause for quitting. Id. To show a necessitous and compelling cause, the claimant must establish that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) he acted with ordinary common sense; and (4) he made a reasonable effort to preserve his employment. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 685, 970 A.2d 1148 (2009). At issue here is whether Claimant made a reasonable effort to preserve his employment.
The UCBR found that after Claimant was asked to leave the job site, Claimant telephoned Employer one time and did not leave a message when Employer did not answer the phone. (Findings of Fact, No. 8.) In light of Employer's invitation to come back when Claimant's attitude had improved, it was not reasonable for Claimant to make only one phone call and fail to leave a message. Thus, the UCBR did not err in determining that Claimant failed to make a reasonable effort to preserve his employment.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 11th day of January, 2012, the order of the Unemployment Compensation Board of Review, dated February 16, 2011, is affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge