Opinion
No. 520 C.D. 2012
11-16-2012
Carlisha Thompson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Carlisha Thompson (Claimant) petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (Board) that denied her request for remand and denied her unemployment benefits under Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). The Board also found a non-fault overpayment and a non-fraud overpayment of benefits subject to recoupment under Section 804(b) of the Law, 43 P.S. § 874(b), and Section 4005(b) and (c) of the Emergency Unemployment Compensation Act of 2008, 26 U.S.C. § 3304, respectively. We affirm.
Section 402(b) of the Law provides, in pertinent part, 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 ...."
Under 804(b)(1) of the Law, "[a]ny person who other than by reason of his fault has received with respect to a benefit year any sum as compensation ... to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year."
Section 2002(f) of Division B, Title II (Assistance for Unemployed Workers and Struggling Families Act) of the American Recovery and Reinvestment Act of 2009, P.L. 111-5, 123 Stat. 115 (2009), provides for additional $25 emergency unemployment compensation per week. A non-fraud overpayment of such compensation may be subject to recoupment under Section 4005(b) and (c) of the Emergency Unemployment Compensation Act of 2008.
Claimant was employed by Advertising Specialty Institute (Employer) as a full-time electronic editor from October 2007, until she resigned effective April 16, 2010. After her separation from employment, she received unemployment benefits. Subsequently, the Philadelphia UC Service Center determined that she was ineligible for benefits under Section 402(b) of the Law for the waiting week ending April 24, 2010. In separate determinations, the UC Service Center found a non-fault overpayment of $7202 and a non-fraud overpayment of $25 weekly emergency benefits, totaling $650, paid from the claim weeks ending May 1, 2010 through October 23, 2010. Claimant appealed the UC Service Center's determinations. In the notice of hearing mailed on October 28, 2011, Claimant and Employer were notified that a hearing would be held on November 15, 2011 at 1:30 p.m. at a referee's office located at 1250 New Rodgers Road, Suite G-13 in Bristol, Pennsylvania. They were directed to report to that location at least 15 minutes before the scheduled hearing to review the file.
When only Employer's witnesses appeared on time for the November 15, 2011 hearing, the referee delayed the hearing until 1:38 p.m. When Claimant still did not show up, the referee entered numerous documents into record and took brief testimony of Employer's employment manager, Katelyn Stavish, and senior vice president for human resources, Carol Albright. They testified that Claimant resigned from her full-time job on April 16, 2010 and that continuing work was available to her had she not resigned. They disputed Claimant's statement in the appeal form that she was transferred from the full-time position to a seasonal position. They testified that Claimant asked to be considered for a seasonal position but was not hired. The hearing ended at 1:45 p.m.
Where, as here, a party fails to appear at a hearing after being notified of the date, hour and place of the hearing, a hearing may be held in that party's absence, and a decision "may be based upon the pertinent available records." 34 Pa. Code § 101.51. See also Ortiz v. Unemployment Comp. Bd. of Review, 481 A.2d 1383 (Pa. Cmwlth. 1984) (holding that despite the absence of the claimant at the hearing, the referee should have rendered a decision on the merits and made findings of fact based on the evidence in the record).
That afternoon, Claimant sent the referee an e-mail and asked the referee to reopen the hearing. She stated that she arrived 10 minutes late for the hearing because of traffic and was told that the hearing had already ended. The next day, she faxed a letter to the referee requesting reopening of the hearing. In a decision mailed on November 17, 2011, the referee did not rule on Claimant's request to reopen the hearing and affirmed the UC Service Center's determinations. Claimant appealed the referee's decision alleging, inter alia, that she arrived for the hearing 7 minutes late and had trouble in locating the building.
Stating that the referee should have ruled on Claimant's request to reopen the hearing, the Board treated her request as a request for remand and denied the request. The Board rejected Claimant's assertion that she was laid off from the full-time position and became a seasonal worker. The Board found that Claimant resigned from her full-time position effective April 16, 2010 and that work was available to her had she not resigned. The Board further found that although she wanted to be considered for a seasonal position, Employer "did not guarantee any employee seasonal employment." Board's Finding of Fact No. 3. Concluding that she did not have a necessitous and compelling reason for voluntarily terminating her employment, the Board denied her benefits under Section 402(b) of the Law. Noting that there was insufficient evidence of fault or fraud on the part of Claimant in receiving overpayments of benefits, the Board found that Claimant had a non-fault overpayment of $7202 and a non-fraud overpayment of $650, which are subject to recoupment. Claimant's appeal to this Court followed.
If a party did not attend a scheduled hearing and subsequently makes a written request to reopen the hearing before a referee mails a decision, the referee must decide the request. 34 Pa. Code § 101.24(b). If the referee determines that the party had "proper cause" for failing to attend the hearing, the case must be reopened. 34 Pa. Code § 101.24(a).
In denying Claimant's request to reopen the hearing, the Board stated:
The claimant requests a remand alleging that she was seven to ten minutes late to the hearing due to traffic and an inability to find the building. The Board notes that the hearing was scheduled to begin at 1:30 p.m., and that the parties were instructed to report fifteen minutes prior to the start of the hearing to review the file documents. In addition, the Referee delayed the start of the hearing until 1:38 p.m., but the claimant did not arrive. Nor had she arrived by the conclusion of the hearing at 1:45 p.m. ... Neither traffic nor an inability to find the hearing location is good cause for a party's failure to appear at the hearing on time.
Claimant asserts that Employer did not challenge her receipt of benefits until after she recertified her eligibility for benefits in 2011 and that she did not quit the full-time position and was instead transferred to a seasonal position. She denies writing a resignation letter. She maintains that Employer encouraged her to apply for benefits until she could return to a seasonal position. She does not dispute the amount of benefit overpayments found by the Board.
On appeal, Claimant does not challenge the Board's denial of her request for remand in the petition for review or in the brief. Therefore, she waived the issue of whether the Board abused its discretion in refusing to remand for a further hearing. See Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643 (Pa. Cmwlth. 2012) (holding that any issue not raised in the petition for review is waived); see also Purple Orchid, Inc. v. Pa. State Police, Bureau of Liquor Control Enforcement, 572 Pa. 171, 813 A.2d 801 (2002) (holding that an issue included in a statement of questions involved on appeal but not addressed in the brief is waived). She also waived her argument that Employer did not challenge her eligibility for benefits until May 2011, more than one year after her initial application for benefits, due to her failure to raise it in the petition for review. Scott.
Whether the claimant's separation from employment was due to a voluntary resignation is a question of law to be determined based on the facts of each case. Procyson v. Unemployment Comp. Bd. of Review, 4 A.3d 1124 (Pa. Cmwlth. 2010). In her resignation letter, Claimant stated:
The purpose of this letter is to announce my resignation from full time employment effect[ive] April 16, 2010.Employer's Exhibit 1; Certified Record (C.R.), Item No. 8. Claimant's resignation letter admitted into evidence and the testimony of Employer's witnesses support the Board's conclusion that she resigned from her full-time employment effective April 16, 2010.
This was not an easy decision to make, on my part. The past 2 years have been very rewarding. I've enjoyed working for ASI. But because of the birth of my daughter and her medical condition it will be difficult for me to continue on as a full time employee. I would like to be considered for seasonal employment.
To be eligible for benefits under Section 402(b) of the Law, a claimant who resigned from employment must prove that the resignation was due to a necessitous and compelling reason. To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027 (Pa. Cmwlth. 2010). In addition, the claimant must demonstrate that he or she acted with ordinary common sense and made a reasonable effort to preserve employment but had no real choice other than to leave employment. W. & S. Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913 A.2d 331 (Pa. Cmwlth. 2006). Whether the claimant's separation from employment was due to a necessitous and compelling reason is a question of law subject to this Court's plenary review. Id.
This Court has held that the claimant's action to quit a full-time, non-temporary job to take a seasonable job with a limited duration does not constitute a necessitous and compelling reason under Section 402(b) of the Law. Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d 1051 (Pa. Cmwlth. 2012). In addition, where the claimant quit a job when there was only a possibility of obtaining another job, not a firm and definite offer of employment, the claimant is ineligible for benefits under Section 402(b) of the Law. Id.
Employer's witness, Stavish, testified: "[Claimant] asked to be considered for a seasonal position. We didn't guarantee it. We told her we'd consider her. She wasn't selected at the time that we were bringing back the seasonal people." Notes of Testimony at 3; C.R., Item No. 8. In an unemployment compensation case, the Board is the ultimate fact-finder and is free to accept or reject the testimony of any witness, even uncontradicted testimony. Daniels v. Unemployment Comp. Bd. of Review, 755 A.2d 729 (Pa. Cmwlth. 2000). The evidence in the record, accepted by the Board, establishes that Claimant resigned from her full-time position without a firm and definite offer of an alternate position. Hence, she was ineligible for benefits under Section 402(b) of the Law.
In the resignation letter, Claimant stated that she resigned because she could not work full-time because her child had a medical condition. A claimant, who quits employment to care for a chronically ill parent or small children, must establish that he or she has given an employer an opportunity to accommodate his or her situation and has explored an alternative option, in order to be eligible for benefits. Beachem v. Unemployment Comp. Bd. of Review, 760 A.2d 68 (Pa. Cmwlth. 2000); Draper v. Unemployment Comp. Bd. of Review, 718 A.2d 383 (Pa. Cmwlth. 1998). The record lacks such evidence in this matter due to Claimant's failure to attend the hearing to establish a necessitous and compelling reason for her resignation. --------
Accordingly, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 16th day of November, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Board's Decision at 2 (emphasis in original).