Opinion
No. 1108 C.D. 2014
02-06-2015
Lorraine Barnicle, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Lorraine Barnicle (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under Section 402(b) of the Unemployment Compensation Law (Law). In doing so, the Board affirmed the decision of the Referee that Claimant lacked necessitous and compelling cause to resign from her job because she anticipated not being able to meet a monthly sales quota. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). In relevant part, Section 402(b) provides that an employee is ineligible for compensation when "his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ... [.]" 43 P.S. § 802(b).
The facts are undisputed. Claimant was employed by Davison Design and Development (Employer) as a full-time director of new products from May 12, 2008, to October 3, 2013. Claimant was paid monthly, and her salary was drawn against future commissions. Claimant's receipt of the monthly draw was conditioned on her maintaining a minimum sales rate. Claimant understood that if her monthly sales fell below $10,000 for three straight months, her compensation could be changed to straight commission.
During August and September 2013, Claimant's sales fell below $10,000 per month. At the beginning of October 2013, Claimant decided that she would be unable to generate $10,000 in sales during that month, which would revert her compensation to straight commission at the end of October. Claimant was concerned that she would be unable to support herself on straight commission. Additionally, Claimant was unable to seek alternative employment while employed by Employer because she had exhausted her vacation and sick time due to an unexpected surgery. As a result, Claimant quit her job on October 3, 2013.
There is no information in the record on Claimant's income prior to her resignation or her expected income on straight commission. Claimant indicates in her brief that her income on straight commission would be less than minimum wage.
Claimant filed for unemployment compensation benefits, which the Duquesne UC Service Center denied after finding that Claimant did not quit for a necessitous and compelling reason. Claimant appealed, and a hearing was held before a Referee on December 9, 2013.
At the hearing, Claimant testified on her own behalf, and Employer was represented by its general counsel. The Referee determined that Claimant had not satisfied her burden under Section 402(b) of the Law because she did not show that there was "a substantial, unilateral change in the employment agreement, that there [were] conditions of employment that she was not aware of which proved onerous over time, or that she was deceived as to the conditions of employment." Referee's Decision at 2. The Referee concluded that Claimant's complaints amounted to "mere job dissatisfaction" and denied benefits. Claimant appealed to the Board, which affirmed the Referee's decision, noting that Claimant's reason for quitting was to seek more lucrative employment. Claimant now petitions for this Court's review.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1161 n.2 (Pa. Cmwlth. 2012).
On appeal, Claimant argues that the Board erred in holding that she is ineligible for benefits under Section 402(b) of the Law. Specifically, Claimant contends that the Board erred in finding that she failed to prove a necessitous and compelling reason for quitting her job.
Claimant also claims that the Board erred in finding her ineligible for benefits under Section 402(b) of the Law because "43 P.S. §402" of the Law does not exist. Claimant is mistaken. "Section 402(b)" is the official citation to the applicable section of the Law as found in Pennsylvania's official Pamphlet Laws. "43 P.S. §802(b)" is the citation to the same section of the Law in Purdon's Pennsylvania Statutes, which is an unofficial codification of Pennsylvania law.
The Board argues that Claimant waived her challenge to the Board's findings of fact because she did not challenge them in her petition for review. We disagree. This Court will construe pro se filings liberally when we are able to discern the legal issues raised. Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n. 6 (Pa. Cmwlth. 2010). While not directly stated, the gravamen of Claimant's petition is that the Board erred in determining that she lacked a necessitous and compelling reason for quitting. Claimant's challenge therefore necessarily challenges the contrary findings of fact made by the Board.
We begin with a review of the relevant law. A claimant who voluntarily resigns from her employment bears the burden of showing that she resigned for a necessitous and compelling reason. Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987). A claimant can meet this burden by showing
that circumstances existed which produced real and substantial pressure to terminate employment; such circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve her employment.Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). Mere dissatisfaction with working conditions does not provide necessitous and compelling cause to quit employment. Kellenbenz v. Unemployment Compensation Board of Review, 454 A.2d 1202, 1203 (Pa. Cmwlth. 1982). Additionally, an employee's acceptance of a job indicates her agreement to the wages and conditions of employment. Stiffler v. Unemployment Compensation Board of Review, 438 A.2d 1058, 1060 (Pa. Cmwlth. 1982). Only when an employer deceives an employee as to her working conditions or substantially changes those conditions subsequent to hiring will the employee have a necessitous and compelling reason to voluntarily quit. Id.
Claimant argues that she had a necessitous and compelling reason for quitting because of "the inevitable, unavoidable demotion to straight commission at the end of the month of October [2013]." Claimant's Brief at 9. Claimant presented evidence that other employees had been fired for failing to meet the sales quota. Claimant further contends that she needed to seek employment elsewhere in order to support herself, but she would have no time to do so because she had exhausted her paid time leave. The Board counters that Claimant did not prove that Employer deceived Claimant in any way or substantially altered the terms and conditions of her employment. Additionally, the Board notes that Claimant quit weeks before Employer could have exercised its option to begin paying her on a straight commission basis. Claimant did not make a good faith effort to preserve her employment.
Claimant includes an additional argument that she was told by Employer's attorney and the human resources director that she would be eligible for unemployment compensation benefits. However, this issue was not raised before the Referee and cannot be considered by this Court on appeal. Pryor v. Workers' Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1201 (Pa. Cmwlth. 2006) ("It is a fundamental rule of appellate review that the court is confined to the record before it, excluding matters or facts asserted in briefs."). --------
Claimant may have been justifiably concerned about a change in her compensation. However, Claimant admitted that she knew about the sales quota when she started working for Employer. Claimant may have believed she could not reach the $10,000 sales threshold for October 2013, but she made no effort, let alone a reasonable effort, to preserve her employment by attempting to meet this quota. Accordingly, we hold that the Board correctly determined that Claimant was ineligible for unemployment benefits under Section 402(b).
For these reasons, we affirm the Board's decision.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of February, 2015, the order of the Unemployment Compensation Board of Review dated May 7, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge