Opinion
No. 2266 C.D. 2012
06-03-2013
Helen Barsh, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Helen Barsh (Claimant) petitions for review of the November 21, 2012 order of the Unemployment Compensation Board of Review (Board). The Board affirmed the determination made by the Referee that Claimant was ineligible for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law), because she voluntarily left work with Moses & Gelso LLP (Employer) without cause of a necessitous and compelling nature. The Board's order also affirmed the Referee's determination that Claimant received an overpayment of benefits due to her own fault under Section 804(a) of the Law in the amount of $1,585 and that, under Section 801(b) of the Law, penalty weeks should be imposed upon Claimant. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Section 804(a) of the Law provides, in part, that: "Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him and interest at the rate determined by the Secretary of Revenue...." 43 P.S. § 874(a). Section 801(b) of the Law provides, in part, that: "Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment...." 43 P.S. § 871(b).
Claimant filed for unemployment benefits on June 29, 2012 and received benefits from July 7, 2012 through August 4, 2012. The Unemployment Compensation Service Center (Service Center) issued a determination on August 10, 2012, finding that Claimant was ineligible to receive benefits, that Claimant had received a fault overpayment, and that Claimant owed a penalty. (Record Item (R. Item) 6.) Claimant appealed and a hearing was held before a Referee on September 5, 2012.
On September 6, 2012, the Referee issued a Decision and Order affirming the Service Center. In the Decision, the Referee made the following findings of fact, which were adopted by the Board in its November 21, 2012 Decision and Order:
1. [C]laimant was employed as a legal secretary/assistant for [Employer] since December of 1990 with a final rate of pay of approximately $30,000 per year on a full time basis.(Referee Decision and Order, Findings of Fact (F.F.) ¶¶1-12.) Claimant filed a timely appeal of the Board's Decision and Order.
2. [Claimant's] last day of work was June 26, 2012.
3. [Claimant] voluntarily left her employment by leaving the managing partner a note which included stating the phrase "All good things must come to an end."
4. [Claimant] did not provide [Employer] a specific reason for quitting in the note.
5. [Claimant] did not discuss her reasons for quitting with [Employer] prior to leaving.
6. Continuing work was available to [Claimant] had [Claimant] not chosen to quit.
7. At hearing, [Claimant] contended she left due to a breakdown in communications.
8. [Claimant] failed to provide specific testimony concerning what steps she took to maintain the employer/employee relationship after the alleged breakdown in communications.
9. [Claimant] did not exhaust all alternatives prior to quitting.
10. In spite of [Claimant] quitting, [Claimant] told the service center she was separated due to a lack of work.
11. [Claimant] withheld material facts and/or information in order to obtain unemployment compensation benefits.
12. [Claimant] received $1,585 in unemployment compensation benefits to which she was not entitled.
Before this Court, Claimant argues that she had a necessitous and compelling reason to voluntarily leave her employment, because, although she made a reasonable effort to preserve her employment, circumstances produced real and substantial pressure that would cause a reasonable person to terminate employment. Employer argues that Claimant has waived her right to argue that a necessitous and compelling reason caused her to voluntarily resign her employment, because in all prior proceedings Claimant argued that she left her employment due to a lack of work and a breakdown in communication with Employer. Employer also argues that the findings of fact adopted by the Board are supported by substantial evidence and the Board did not err as a matter of law.
By April 24, 2013 letter, the Board advised that it would not be filing a brief. Employer filed a brief as an Intervenor in this matter.
Our scope of review of an Unemployment Compensation Board of Review decision is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Cumberland Valley Animal Shelter v. Unemployment Compensation Board of Review, 881 A.2d 10, 13 n.5 (Pa. Cmwlth. 2005). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Lausch v. Unemployment Compensation Board of Review, 679 A.2d 1385, 1393 n.12 (Pa. Cmwlth. 1996). --------
Where a claimant has voluntarily terminated employment, the burden is on the claimant to prove that the termination of employment was for a necessitous and compelling reason. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Whether a claimant had a cause of a necessitous and compelling nature is a conclusion of law subject to appellate review and one that is ultimately based upon an examination of the findings of fact supported by substantial evidence of record. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977). Although "necessitous and compelling" is not defined in the Law, courts have interpreted the statutory language to require a claimant to 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 her employment. Brunswick Hotel, 906 A.2d at 660. A substantial unilateral change in the terms of employment imposed upon a claimant by an employer can constitute a necessitous and compelling reason to terminate employment where an employee can demonstrate that, under the specific circumstances, the change imposed represented a real difference in the conditions of employment. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 228 (Pa. Cmwlth. 2012).
In her brief, Claimant presents a variety of facts to support her claim that just such a substantial change in her conditions of employment were unilaterally imposed by Employer. However, before the Referee, Claimant argued that she left her employment due to a lack of work and a breakdown of communication with Employer. (R. Item 10, Hearing Transcript (H.T.) at 7.); see also (R. Item 7, Claimant's Petition for Appeal from Service Center Determination.) The Referee did not make any findings concerning the substantial unilateral change now alleged by Claimant.
The Referee did find that Claimant did not discuss her reasons for leaving with Employer, did not present testimony supporting specific steps she took to attempt to maintain the employer/employee relationship, and did erroneously inform the Service Center that she was separated from employment due to lack of work. (F.F. ¶¶4-5, 8, 10-11.); see also (R. Item 10, H.T. at 4.) In unemployment compensation proceedings, the Board is the ultimate finder of fact, empowered to resolve conflicts in the evidence, to determine what weight is to be accorded the evidence, and to determine the credibility of witnesses. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (1985). The Board here adopted the findings of the Referee. This Court is bound by those findings, as they are supported by substantial evidence in the record, and it is clear that, based on the findings of fact here, Claimant has failed to demonstrate a necessitous and compelling reason for why she voluntarily terminated her employment.
Claimant has not separately challenged the Board's conclusions that she received an overpayment of $1,585 due to her own fault and that she owes a penalty. As a result, because Claimant has failed to meet her burden of demonstrating that she voluntarily terminated employment due to a necessitous and compelling reason, Claimant has also failed to demonstrate that the Board's conclusions regarding her receipt of payments for which she was ineligible and the penalty she owes are erroneous.
Accordingly, the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 3rd day of June, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge