Opinion
No. 400 C.D. 2011
01-26-2012
Michael L. Testa, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Michael L. Testa (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Review Board (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee) denying Claimant unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides 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 last employed by K&A Auto Salvage (Employer) as a full-time sales representative from September 1, 2006, through April 2, 2010. (Referee's Decision/Order, Findings of Fact (FOF) ¶ 1.) Claimant filed an internet claim for UC benefits on August 2, 2010, stating that he quit his job because Employer would not give him a raise, promised additional compensation, and there was a hostile work environment. (Internet Initial Claims, R. Item 2.) By Notice of Determination mailed September 17, 2010, the Philadelphia UC Service Center (Service Center) determined that Claimant was ineligible for benefits pursuant to Section 402(b) of the Law. (Notice of Determination at 1, R. Item 4.) Claimant timely appealed and the Referee held a hearing on November 10, 2010, at which both Claimant and Employer testified. The Referee found that Claimant: (1) "was dissatisfied with his pay rate," (FOF ¶ 2); (2) "felt that there was no room for advancement" with Employer, (FOF ¶ 3); (3) "was looking for other work," (FOF ¶ 4); (4) "never discussed his dissatisfaction with the job with [] Employer," (FOF ¶ 5); (5) "never asked [] Employer for a raise," (FOF ¶ 6); and (6) "voluntarily quit his job on April 2, 2010," (FOF ¶ 7). "Continuing work was available to [] Claimant, had he chosen to remain employed." (FOF ¶ 8.) Based on these findings, the Referee concluded that Claimant "failed to establish that he had no other choice but to leave [his employment], or that he exhausted all other avenues prior to voluntarily leaving." (Referee's Decision/Order at 2.) Accordingly, the Referee affirmed the Service Center's determination and denied Claimant benefits pursuant to Section 402(b) of the Law.
Claimant timely appealed to the Board. Upon review, the Board adopted the Referee's findings of fact and conclusions of law. (Board Decision/Order.) The Board determined as follows:
[] [C]laimant voluntarily quit his employment because he was dissatisfied with the working conditions. Rather than discussing his dissatisfactions with [] [E]mployer prior to quitting, [] [C]laimant told [] [E]mployer that he was leaving for other possible employment. [] [C]laimant did not make a good faith effort to preserve the employment relationship prior to quitting. The Board does not find [] [C]laimant's assertion to be credible that he asked for a raise, as he testified that he did so "not in so many words."(Board Decision/Order.) Accordingly, the Board affirmed the Referee's Decision and Order. Claimant now petitions this Court for review.
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). Substantial evidence is such evidence which "a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached." Centennial School District v. Department of Education, 503 A.2d 1090, 1093 n.1 (Pa. Cmwlth. 1986).
Before this Court, Claimant argues that he had a necessitous and compelling reason to quit his employment because his family suffered due to a lack of pay raises and a substandard rate of pay. Claimant contends that the Referee's finding that he never asked for a raise is not supported by the testimony. Claimant argues further that he was subject to a hostile work environment.
Claimant also argues that Section 402 of the Law was repealed on May 22, 1933; therefore, the Board erred in referring to Section 402(b) in denying Claimant benefits because that section no longer exists. Claimant's assertion is not correct. It is true that former Section 402 of Title 43 was repealed; however, this repealed Section 402 to which Claimant is referring, related to sanitary regulations for bakeries, not unemployment compensation. The Law, which establishes a system of unemployment compensation, was initially enacted on May 6, 1936, and Section 402(b) of the Law, 43 P.S. § 802(b), is still in effect.
The fact that Claimant voluntarily quit does not, "alone[,] act as an absolute bar to receiving unemployment compensation benefits" if, pursuant to Section 402(b) of the Law, Claimant had necessitous and compelling reasons for voluntarily terminating his employment. Allegheny Valley School v. Pennsylvania Unemployment Compensation Board of Review, 548 Pa. 355, 361, 697 A.2d 243, 246 (1997). It is well-settled that "[a]n employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which 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 Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). The circumstances producing pressure to leave must be both real and substantial. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358-59, 378 A.2d 829, 832-33 (1977).
"Whether an employee has a necessitous and compelling reason to voluntarily quit employment is a question of law fully reviewable by this Court." Brunswick Hotel, 906 A.2d at 661. The claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). "Mere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature for terminating one's employment." Brunswick Hotel, 906 A.2d at 660. Moreover, dissatisfaction with one's wages is insufficient justification for terminating employment for purposes of Section 402(b) of the Law. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa. Cmwlth. 1995).
Initially, we note that Claimant did not present any evidence that he was subject to a hostile work environment. To the contrary, Claimant testified that Employer was very good to him and that he appreciated the time he spent with Employer. (Referee Hr'g Tr. at 4, 12.) Thus, Claimant did not establish that he had a necessitous and compelling reason to terminate his employment based on a hostile work environment.
We also reject Claimant's contention that he had a necessitous and compelling reason to terminate his employment because his family suffered due to lack of pay raises and a substandard rate of pay. A review of Claimant's entire testimony reveals that he terminated his employment primarily because he was dissatisfied with the amount of his wages for the work he was performing and he was not compensated for extra work performed on weekends. (Referee Hr'g Tr. at 4.) When questioned by the Referee if he ever asked Employer for a raise, Claimant responded, "[a] few times," and continued "[n]ot in so many words but . . . ." (Referee Hr'g Tr. at 5.) Claimant testified further that he kept waiting and had planned to leave months before, but he "got to the point where [he] was borrowing money ever[y] week to make [his] bills because [he] wasn't making enough money." (Referee Hr'g Tr. at 5.) However, despite being dissatisfied with his job and his pay rate for months, Claimant did not discuss his dissatisfaction with Employer but, rather, informed Employer that he may have an opportunity to work elsewhere and quit two days later. (Referee Hr'g Tr. at 4.) As stated previously, being dissatisfied with the amount of one's wages or working conditions is insufficient justification for leaving employment. Brunswick Hotel, 906 A.2d at 660; A-Positive Electric, 654 A.2d at 302. In short, Claimant's testimony shows that he did not make a reasonable effort to preserve his employment before quitting his job.
Claimant did not offer any specifics as to exactly how much compensation he believed he was entitled to for performing extra work.
Claimant's testimony reveals that his financial problems were attributable to child support payments that were automatically deducted from his pay. (N.T. at 11.)
We further disagree with Claimant's contention that the Referee's finding that he did not ask for a raise is not supported by the testimony. While Claimant did testify that he asked for a raise "a few times," he went on to testify that he did so "not in so many words." (Referee Hr'g Tr. at 5.) More importantly, the Board rejected Claimant's assertion, as not credible, that he asked for a raise. (Board Decision/Order.) As such, the Board clarified any error in the Referee's finding as adopted by the Board.
The law is clear that the Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight" are matters for the Board as fact finder and not for a reviewing court. Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). --------
The Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 26, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge