Opinion
No. 1868 C.D. 2012
04-10-2013
Domingo Ortega, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Domingo Ortega (Claimant), petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied him benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit). Claimant contends the Board erred in determining that a potential lack of available permanent housing near his former employer does not constitute a necessary and compelling reason to leave employment. On this record, we are constrained to affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Claimant worked for Sesame Temps (Employer) for one day as a general laborer, in a part-time capacity. Employer is located in York. Claimant severed the employment relationship. He then applied for benefits, which the local service center granted. Employer appealed. The hearing notice sent to Claimant was returned as undeliverable. The referee held a hearing in Claimant's absence and based his decision solely on Employer's testimony.
The referee denied benefits finding Claimant did not meet his burden of proving he had a necessitous and compelling cause for leaving his employment. Claimant appealed to the Board, which remanded to take evidence regarding Claimant's non-appearance. Neither party appeared at the first remand hearing. The Board affirmed the referee based on the initial hearing.
Claimant appealed to this Court, and the Board requested we remit the case for additional evidence. We remanded to the Board for the purpose of holding a hearing to consider newly discovered information regarding the reason for Claimant's non-appearance at the hearings, and issuance of a new adjudication. See Ortega v. Unemployment Comp. Bd. Of Review (Pa. Cmwlth., No. 1725 C.D. 2011, filed May 3, 2012).
A referee appointed by the Board held a telephonic hearing, at which Claimant, represented by pro bono counsel, and Employer's representative testified. The Board concluded Claimant showed proper cause for not appearing at the initial hearing and first remand hearing. After the second remand hearing, the Board made its own findings of fact, and it issued a decision denying Claimant benefits under Section 402(b) of the Law. Significant to this case, at the time of his employment, Claimant resided at a halfway house in York (transitional housing) following his discharge from a rehabilitation program. See Bd. Op., 9/5/12, Findings of Fact (F.F.) Nos. 3-4.
Because Employer did not provide proper cause for failing to appear at the first remand hearing, the Board did not consider Employer's evidence offered on the merits at the second remand hearing. Bd. Op., 9/5/12, at 3.
The Board made the following pertinent findings:
5. [Claimant] received and completed an assignment from [Employer] on April 16, 2009, and [Employer] instructed him to call back the next day for additional work.F.F. Nos. 5-6, 8-9. Ultimately, the Board determined Claimant did not provide sufficient evidence to prove he had cause of a necessitous and compelling nature to leave work. Claimant did not establish he had a residence in Reading amongst his family and friends when he quit. Rather, the Board found Claimant decided to move to his cousin's home in Lebanon after only staying at the halfway house in York for a few days. Had Claimant not chosen to quit, work was available to him.
6. On April 17, 2009, [Claimant] called [Employer] and stated that he was not from York, did not like the place, and was moving back to Reading.
...
8. [Claimant] moved out of the halfway house in York on April 17, 2009 and resided with his cousin in Lebanon.
9. Continuing work was available with [Employer] in York if [Claimant] had not quit.
On appeal, Claimant asserts the Board erred in failing to conclude his homelessness constituted a necessitous and compelling reason for leaving. Claimant expressly waived "all other issues raised" in the petition for review. Pet'r's Br. at 7.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Claimant contends the Board erred in failing to find that he had a necessitous and compelling reason to quit when he was residing in temporary transitional housing in York, and would be homeless when the program ended. In deciding between staying in York to maintain a part-time job where hours were not guaranteed and face homelessness, or moving to Lebanon to reside with his cousin where he had support to find a more permanent residence and employment, Claimant argues he acted reasonably by leaving.
Section 402(b) of the Law provides that an employee 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 ...." 43 P.S. §802(b). An employee who claims to have left employment for a necessitous and compelling reason bears the burden of proof. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012). The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Id.
To prove a necessitous and compelling reason for leaving work, Claimant must show the following: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). "[E]mployer has no burden of proof" in a voluntary quit case. Earnest v. Unemployment Comp. Bd. of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 2011) (quoting Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095, 1104 (Pa. Cmwlth. 2005)).
Claimant asserts the pressures of financial uncertainty and homelessness facing him in York constituted a compelling reason to quit. Claimant cites a single case to support this argument, Judd v. Unemployment Compensation Board of Review, 496 A.2d 1377 (Pa. Cmwlth. 1985). In Judd, the claimant experienced financial difficulties after moving to take a job in another county, primarily because he was unable to sell his residence. That the claimant in Judd bore the cost of housing in two locations caused him to suffer medical problems. The circumstances in Judd are not analogous to this case.
In Judd, the claimant experienced a number of financial crises, in addition to having a diagnosed extreme stress condition. The claimant resigned due to the stress and anxiety caused by his financial straits. This Court held proven emotional distress may constitute necessitous and compelling cause to quit. We reasoned that emotional distress, combined with economic necessity, is sufficient cause for voluntary quit. The financial circumstances of facing a forced sale of the claimant's home for inability to pay property taxes contributed to the compelling financial circumstances. We elaborated that economic necessity may not compel resignation "unless the claimant has exhausted every alternative prior to quitting." Id. at 1380. In Judd, the record evidence confirmed that the claimant considered every alternative before resigning.
In contrast to Judd, Claimant did not establish he did everything in his power to remain employed. Claimant advised Employer he did not like York and was moving back to Reading. F.F. No. 6. Claimant asked Employer to forward his check to his cousin's home in Lebanon, where he actually moved. F.F. No. 7. There is no record evidence indicating that Claimant explored any alternatives in order to remain employed in York. According to his own testimony, Claimant could have remained a resident in the halfway house in York for at least a week. Ref. Hearing (Second Remand), 7/9/12, Notes of Testimony (N.T.) at 10, 12.
However, benefits may be appropriate when a claimant demonstrates his inability to secure housing in the vicinity of his employment. See Long v. Unemployment Comp. Bd. of Review, 475 A.2d 190 (Pa. Cmwlth. 1984) (granting benefits where claimant attempted to secure housing through hotels, real estate listings, trailers, and slept in the family vehicle while looking). When analyzing whether a claimant established cause of a necessitous and compelling nature to leave employment, we assess the burden faced by the claimant, and the claimant's reasonable attempts to overcome that burden. Id. (applying insurmountable burden test adopted to address transportation obstacles to the housing context).
In contrast to Long, Claimant did not show he was unable to secure lodging in York or its vicinity. As to the housing obstacles he faced, Claimant testified he did not have anywhere to stay in York after his week at the halfway house since he had no family or friends there. N.T. at 11. Claimant did not submit any evidence explaining attempts to obtain housing in the York area.
Further, the record reflects Claimant resided in at least two different areas since he quit his employment in York: Lebanon and Reading. The timeframes for which he resided in each of these areas are uncertain. According to the findings, in April 2009 Claimant asked for his check to be mailed to his cousin's house in Lebanon, where he moved after quitting. F.F. Nos. 7-8. It is unknown how long he lived there, the extent to which his cousin helped him, and whether he tried to obtain work there.
In September 2011, when he filed a petition of review with this Court in his first appeal, he resided at the Bethesda Mission in Harrisburg, Pennsylvania. See Ortega v. Unemployment Comp. Bd. Of Review (Pa. Cmwlth., No. 1725 C.D. 2011), Pet. for Review, 9/15/11, at 1; see also Bd. Op. at 2. He also resided on 12th Street in Harrisburg in October 2012, when he filed the current petition for review. See Pet. for Review, 10/5/12, at 1.
At the same time, however, Claimant advised Employer he "was moving back to Reading," F.F. No. 6. At some point he apparently moved there. In February 2011, when the referee held the initial hearing, Claimant asserted he lived in Reading. He never testified how long he resided there, the extent to which friends and family assisted him, or whether he attempted to become employed.
Claimant stated in his appeal from the initial referee's decision that "I live in Reading, PA and cannot work in York, PA." Certified Record (C.R.), Item No. 15, 3/15/11. His address of record in March 2011 was in Reading, Pennsylvania at the same location he testified he resided in February 2011, when he did not receive the initial hearing notice. Compare Ref. Hearing (First Remand), 6/10/11, Notes of Testimony (N.T.) at 1, with Ref. Hearing (Second Remand), 7/9/12, N.T. at 7. --------
In June 2011, when the referee held the first remand hearing, it is unclear where Claimant lived. He later testified "I probably was staying at a friend's house or somewhere around—I actually don't remember because I kept moving around because I was homeless." Ref. Hearing (Second Remand), 7/9/12, N.T. at 8. Claimant explained he was not near the telephone on the date of the first remand hearing in order to receive the call because it was his friend's telephone and "because I don't live there ... because it wasn't my living—place where I live at and I had no transportation to go to his house at 8:00 in the morning." Id.
In sum, the record lacks any clear account of Claimant's whereabouts during the two years between April 2009, when he moved in with his cousin in Lebanon, and March 2011, when he lived in Reading. While we sympathize with Claimant's plight, the record does not contain sufficient evidence regarding the places to which he moved, which would allow an informed comparison with his situation in York. In particular, he did not explain the support systems available to him in Lebanon or Reading, he did not explain when he arrived and departed either place, and he did not testify about job opportunities. Given these significant gaps in this record, we are constrained to hold Claimant did not meet his burden.
The Board made every effort to afford Claimant an opportunity to create a record to meet his burden of proof by holding not one, but two remand hearings. Like the Board, we are sensitive to Claimant's situation, and we lament our inability to remedy it by holding him eligible for benefits. Unfortunately, we cannot rule in Claimant's favor without creating troublesome precedent.
Based on the foregoing, because the Board's findings are supported by substantial evidence, and the findings support the denial of benefits under Section 402(b) here, we must affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of April, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge