Opinion
No. 570 C.D. 2012
09-12-2012
Courtney J. Cyphert, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Courtney J. Cyphert (Claimant) petitions for review pro se from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying her unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law) and establishing a non-fault overpayment under Section 804(b)(1) of the Law. Because Claimant had cause of a necessitous and compelling nature to leave her part-time position with Claire's Boutique (Employer), we reverse the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in "employment" as defined in this act.
43 P.S. §874(b)(1). That section provides, in relevant part:
Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act 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.
Claimant was employed part-time by Employer as a "third key holder" (a salesperson who had a key to the store) at a rate of $8.25 per hour. Claimant has also maintained seasonal employment with Hunter Station Golf Course (Hunter Station), which closes during the winter, since April 2004. Claimant quit her position with Employer on October 27, 2010, because she lived 30 miles away from the job and her work schedule had been reduced to only four hours per week. Claimant was then laid off for the winter from her seasonal position with Hunter Station on October 30, 2010.
Claimant filed for unemployment compensation benefits with the UC Service Center, which determined that Claimant voluntarily quit her job with Employer. Because "[l]eaving a job to seek other work, in itself, is not a necessitous and compelling reason," the Service Center denied benefits pursuant to Section 402(b) of the Law. (August 22, 2011 UC Service Center Determination; Certified Record at 6). The Service Center also issued two separate "notices of determination of overpayment of benefits" (overpayment notices), indicating that Claimant received a fault overpayment of $3,192 under Section 804(a) of the Law, 43 P.S. §874(a), because she voluntarily quit her job with Employer without a necessitous and compelling reason, and ordered restitution. Claimant appealed.
The first notice indicated that Claimant received a benefit overpayment of $2,128, representing 14 payments of $152 from November 13, 2010 through February 12, 2011. The second notice indicated that Claimant received a benefit overpayment of $1,064, representing seven payments of $152 from February 19, 2011 through April 2, 2011. (Certified Record at 8).
Before the Referee, Claimant testified that she worked on a part-time basis for Employer on two separate occasions, from August or September 2007 until January 21, 2009, and again from January 2010 until October 27, 2010. She testified that she quit the position with Employer in October 2010 because Employer reduced her work schedule to only four hours per week, and it was impractical for her to make the 30-mile commute to the job. Claimant denied having any availability issues regarding her position with Employer and stated that there were no days in which she was unable to work. Claimant further testified that she has worked in a seasonal position at Hunter Station since April 2004. She stated that Hunter Station closes every winter, and that she has collected unemployment compensation benefits every winter since 2004. Claimant testified that, most recently, she was laid off from Hunter Station on October 30, 2010, and returned to that position on March 28, 2011. When asked by the Referee whether she received all the benefits Employer claimed were overpayments, Claimant replied, "I did, but they were from [Hunter] Station. I never filed a claim for [Employer]." (September 28, 2011 Hearing Transcript at 7; Certified Record at 11). The Referee then explained to Claimant that 15% of her unemployment compensation benefits were being paid by Employer. Id.
See Employer's Request for Relief from Charges, Certified Record at 2.
Amy Sickinger (Sickinger), District Sales Manager for Employer, corroborated Claimant's testimony as to her dates of employment. She agreed that Claimant's work schedule had been reduced to four hours per week, and attributed that reduction to lower traffic within the mall, a decrease in sales at the store and schedule availability. When asked why Claimant could not have been given more than four hours per week, Sickinger explained:
I would assume that it was due to availability of hours that she was able to work, her availability, and the amount of hours that were left over in the store. Unfortunately, sometimes if you - if works to say [sic] they're given 100 hours to keep the store open, the store manager gets 40, the assistant 32 to 40, and that leaves a base of maybe 20 to - 16 to 20 hours left for the keys. And in those 16 to 20 hours during a given period, what availability based on business needs, a lot of those 16 to 20 hours are used on weekends. And if you're not available to work the weekend, then where they can place those other hours are pretty limited.(September 28, 2011 Hearing Transcript at 10; Certified Record at 11). She also testified that the reduction in hours was not because of any fault on the part of Claimant, and reiterated that Claimant was not terminated from her position.
The Referee found that Claimant quit her position with Employer after her work schedule was reduced to four hours per week (Finding of Fact No. 6); that Claimant filed an application for benefits with an effective date of October 31, 2010, establishing a weekly benefit rate of $156 and a partial benefit credit of $63 (Finding of Fact No. 7); and that Claimant filed for and received benefits for weeks ending November 13, 2010 through April 2, 2011, without reporting that she had quit her position with Employer (Finding of Fact No. 8). Based on those findings, the Referee determined that Claimant failed to show cause of a necessitous and compelling nature for leaving her job with Employer and affirmed the Service Center's denial of benefits under Section 402(b) of the Law. The Referee also noted that:
Claimant's average weekly earnings from [Employer] would have been $33, which is in excess of claimant's partial benefit credit and as a result...the claimant's weekly benefit rate must be reduced to the extent that claimant's part-time earnings would have reduced claimant's benefits.(October 3, 2011 Referee's Decision at 2; Certified Record at 12). With respect to the overpayment of benefits, the Referee held that:
It has not been established that the overpayment herein involved was the result of fault on the claimant's part. However, since the claimant received benefits to which claimant was not entitled, a non-fault overpayment is imposed under the provisions of Section 804(b)(1) of the Law.Id. Claimant appealed to the Board, which adopted the findings and conclusions of the Referee in their entirety. This appeal by Claimant followed.
Our review of the Board's decision is limited to determining whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
In her brief to this Court, Claimant lists two issues in the Statement of Questions Involved: (1) whether the Board erred in finding that she failed to meet her burden of establishing that she voluntarily terminated her employment without cause of a necessitous and compelling nature; and (2) whether the Board erred in concluding that a non-fault overpayment was established under Section 804(b) of the Law. However, Claimant's brief only addresses the first issue. Moreover, Claimant failed to raise the overpayment issue in her Petition for Review to this Court. Because issues that are raised in a petitioner's brief but not raised in the petition for review before this Court are waived, Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010), we cannot address the overpayment issue. However, because we are addressing whether Claimant had a necessitous and compelling reason to quit her position with Employer, if we rule in her favor on that issue, she would not be liable for an overpayment. With respect to whether she had a necessitous and compelling reason to leave work, Claimant argues that she quit because after her reduction in hours, she only earned $33 per week, before taxes, while spending approximately $12 per week in fuel costs to drive the 30 miles to and from her job.
In her Petition for Review to this Court, Claimant wrote:
Unfair and unjust. At my hearing with the Referee on 9-28-11 it was made clear that even though I did not file for unemployment from [Employer] or try to collect anything from them, that they still paid in 15% of the total payment I received. I think that is the fault of [Employer] not myself. I have proof that another employer paid into my unemployment that I collected and that I have worked for them since April 2004. With that being said, if there was any amount I should have to pay back it should be the 15% I was told [Employer] paid in. My total payment was $4,233.00. 15% of $4,233.00 is $634.95. Not the $3,192.00 that [Employer], Unemployment Compensation, UCBR, and the Commonwealth Court of PA is claiming I owe. $3,192.00 is an absolutely ridiculous amount, I barely made much more than that in my total payment. Also, my decision to quit [Employer] was based on unfair work conditions. My hours were drastically reduced causing me to not even make an income. I lived 30 miles away from the job site so I was spending more money in gas than I was making at [Employer]. That was out of my control and very unfair work conditions that led to my decision to quit. I fully believe that I was not overpaid in any amount. It is not my fault [Employer] paid into my unemployment. They are the ones at fault, not myself. But in the case of overpayment, it was made clear [Employer] paid in 15% of my total payment. I demand that you get this total of overpayment straight. The total amount of overpayment should be $634.95 not $3,192.(April 2, 2012 Petition for Review) (emphasis added).
In order to show necessitous and compelling cause, the claimant must establish that circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like 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 his or her employment. Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa. Cmwlth. 2001). While mere dissatisfaction with wages or work assignments is not cause of a necessitous and compelling nature for an employee's voluntary quit, Snyder v. Unemployment Compensation Board of Review, 421 A.2d 530, 532 (Pa. Cmwlth. 1980), "an employer's unilateral imposition of a real and substantial change in the terms and conditions of employment provides a necessitous and compelling reason for an employee to leave work." Philadelphia Housing Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 (Pa. Cmwlth. 2011).
Based on the record before us, Claimant established cause of a necessitous and compelling nature to quit her position with Employer. She offered unrebutted testimony that her hours had been reduced to only four per week. The corresponding reduction in compensation to only $33 per week caused by Employer's unilateral reduction of her hours made it economically impractical for Claimant to continue her employment. Claimant also testified that she spoke with her store manager about her reduction in hours before deciding to quit, and that there were not any days which she was unavailable to come to work. Because Claimant's decision to terminate her employment under those circumstances was reasonable, Claimant had necessitous and compelling cause to quit her position with Employer.
We have previously held that a reduction in compensation gives a claimant cause of a necessitous and compelling nature to voluntarily quit a job. See Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624 A.2d 237 (Pa. Cmwlth. 1993) (holding that employer's unilateral alteration of health insurance benefit and corresponding reduction in compensation gave claimant cause of necessitous and compelling nature to quit); and National Freight, Inc. v. Unemployment Compensation Board of Review, 382 A.2d 1288 (Pa. Cmwlth. 1978) (holding that employee had cause of a necessitous and compelling nature to quit where employer increased percentage of employee's gross receipts it kept from 27% to 35%, which reduced Claimant's weekly earnings to $90). --------
Accordingly, the order of the Board is reversed, benefits are reinstated, and Claimant is not liable for a non-fault overpayment.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 12th day of September, 2012, the order of the Unemployment Compensation Board of Review, dated December 22, 2011, at No. B-527727, is reversed, benefits are reinstated and Claimant is not liable for a non-fault overpayment.
/s/_________
DAN PELLEGRINI, President Judge