Opinion
No. 1739 C.D. 2014
06-18-2015
William J. Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
William J. Davis (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding him ineligible for unemployment compensation (UC) benefits under Sections 402(b) and 401(d)(1) of the Pennsylvania Unemployment Compensation Law (Law), and imposing a fault overpayment under Section 804(a) of the Law because he voluntarily terminated his employment with Wyoming Valley Motors (Employer) without a necessitous and compelling reason. 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, in relevant part, 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, irrespective of whether or not such work is in 'employment' as defined in this act[.]"
43 P.S. §874(a). Section 804(a) of the Law states in relevant part:
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[.]
Claimant was employed as a full-time salesperson for Employer from March 4, 2013, until around August 28, 2013. He was paid by commission and worked as a temporary seasonal employee, with the ability to set the terms of his employment. Claimant then filed for UC benefits. The application was granted and Claimant began to receive UC benefits. Thereafter, the Department of Labor and Industry (Department) revisited Claimant's UC application after being prompted by correspondence from PeopleSystems, apparently Employer's consultant on unemployment compensation claims, stating that Employer "protested the claimant's reason for job separation, Quit - Moved... Please investigate, advise, and credit the employer's account if warranted." (R. Item No. 2.) The Department then issued a determination denying benefits under Section 402(b) of the Law beginning with waiting week ending September 7, 2013, as Claimant had voluntarily quit. The Department also issued a determination imposing a non-fault overpayment under Section 804(b) of the Law for the amount of $8,360. Claimant appealed the Department's determinations and a hearing was scheduled before a Referee.
After the Referee scheduled a hearing on appeal, Claimant requested that the Referee issue subpoenas for "employment records from [Employer] and records from [PeopleSystems]." (R. Item No. 10.) The Referee denied the request due to lack of relevance. Two hearings were held before the Referee, during which Claimant and Mary Anthony, Employer's General Manager, testified.
Claimant testified that he had a longstanding relationship with Employer that consisted of working less than 40 hours a week during the busy sales season. He maintained that he did not quit his position with Employer, but rather, the separation was a prearranged agreement as to when he would start work and when he would leave work, and "it was the same arrangement that [he] had in '98, '99, 2012 and 2013." (R. Item 15, p. 5.) Claimant also testified that Employer made no mention of the fact that there was continuing work available for him after the Labor Day weekend.
As to his availability for work, he testified that after his separation from Employer, he spent September 29, 2013, to October 12, 2013, in Florida, trying to look for work, but he failed to notify the UC Service Center that he was in Florida. He was also back in Florida from November 24, 2013, to December 1, 2013, for Thanksgiving, of which he, again, failed to inform the UC Service Center.
General Manager Anthony testified that Claimant worked thirty eight and a half hours, fully on commission, as a temporary seasonal employee. She testified that Claimant had the ability to set the terms of his employment, and that Claimant and Employer's Chief Executive made the decision that he would work through the summer until the Labor Day weekend of 2013. She testified that Claimant gave Employer two weeks' notice and went to Florida, saying he was going home where his wife owned houses. She testified that Employer had continuing work available and would have let Claimant work for as long as he wanted had he not quit.
The Referee found Claimant ineligible for benefits under Section 402(b) of the Law with waiting week ending September 7, 2013, and ineligible for benefits under Section 401(d)(1) of the Law for claim weeks ending October 5, 2013, October 12, 2013, and November 30, 2013. He also modified the Department's determination by imposing a fault overpayment under Section 804(a) of the Law. The Referee reasoned that Claimant voluntarily quit his employment because he wanted to spend parts of the fall and/or winter months in Florida and then failed to advise the Department of material facts in order to receive benefits.
Claimant appealed to the Board and the Board issued a decision and order affirming the Referee's denial of benefits under Section 402(b) of the Law, finding Employer's testimony to be credible and Claimant's testimony as incredible, and concluding that Claimant did not have cause of a necessitous and compelling nature to quit. The Board also modified the Referee's decision and imposed a non-fault rather than a fault overpayment under Section 804(b) of the Law, finding there to be insufficient evidence in the record to establish that Claimant intentionally misled the Department to obtain benefits. Lastly, the Board maintained that the denial of the subpoenas were well within the Referee's discretion as the request was overbroad and unspecific. Claimant then filed the instant appeal of the Board's order.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated, or whether the necessary findings of fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of Review, 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 2010).
In his appeal, Claimant initially argues that the Board abused its discretion and deprived him of his due process rights by affirming the Referee's denial of his request for subpoenas for PeopleSystems' records. According to Claimant, the records are crucial to his case because the Employer's employment records would have shown the fixed time period of hire by Employer in years prior to 2013, and they would also likely reflect that he was treated differently from full-time employees. Claimant also asserts that the subpoenas were relevant and probative because PeopleSystems has no standing to participate in this matter and challenge Claimant's right to benefits.
As an example of how he was treated differently, Claimant provides that he was advised that he would not be eligible for any health benefits or other benefits during the time of his employment with Employer in 2013. --------
The Department's regulations provide that "[t]he issuance of subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records and documents, may be obtained on application to the Board, referee, or at any local employment office." 34 Pa. Code §101.31 (emphasis added). See also Section 506 of the Law, 43 P.S. §826. The issuance of a subpoena is not mandatory but rather a matter of discretion. Flores v. Unemployment Compensation Board of Review, 686 A.2d 66, 76 (Pa. Cmwlth. 1996). Although the Board may refuse to issue a subpoena where the subpoena is requested for the purpose of harassment or to commence a fishing expedition, it has an obligation to issue a subpoena when the issuance would lead to relevant and probative testimony. Hamilton v. Unemployment Compensation Board of Review, 532 A.2d 535, 537 (Pa. Cmwlth. 1987).
The question then becomes should the Board have issued the subpoenas in order to produce relevant and probative testimony. In this case, Claimant sought the subpoenas that would produce evidence that would show that Claimant was hired by Employer for similar fixed time periods in years past and that Claimant was treated differently from full-time employees. Because evidence that he had a fixed period of employment in past years or that he was treated differently from full-time employees would make no difference as whether he voluntarily left his employment for 2013, the year in question, the Board did not abuse its discretion in affirming the Referee's denial of his request for the subpoenas.
As to the merits, Claimant argues that there is not substantial evidence to support the Board's findings that he quit because he wished to go to Florida or that work would have been available to him after the Labor Day weekend of 2013.
Claimant repeatedly contends that he did not "quit" but rather the duration of his position was "predetermined" because of the agreement he had with Employer to work a limited time. He argues that because Employer agreed that he was only to work for a limited time does not mean that he did not quit in the traditional sense, but an acknowledgement by Employer that continuing work would not be available after that date.
However, the Board found General Manager Anthony's testimony credible that Claimant gave Employer two weeks' notice saying he was going to Florida where his wife owned houses and that Employer had continuing work available and would have let Claimant work for as long as he wanted had he not quit. Accordingly, because that testimony is substantial evidence to support a finding that he quit and that continuing work was available, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 18th day of June, 2015, the order of the Unemployment Compensation Board of Review, dated August 26, 2014, at No. B-14-09-A-2490, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge