Opinion
No. 168 C.D. 2014
09-10-2014
First National Community Bank, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Employer, First National Community Bank, petitions for review of the order of the Unemployment Compensation Board of Review (Board) that reversed the decision of the referee to deny Claimant, Donna Timko's, request for unemployment compensation benefits pursuant to the Voluntary Layoff Option (VLO) proviso contained in Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. § 802(b). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week in which the unemployment is due to a voluntary leaving of work without a necessitous and compelling reason. However, a claimant may not be denied benefits, if the unemployment is due to exercising the option of accepting a layoff pursuant to an established employer plan.
The facts as found by the Board are as follows. On October 12, 2012, Employer announced that structural changes in the company would occur in which nine positions would be eliminated and it would be offering a voluntary separation package to employees who met certain criteria. Claimant was notified that she qualified on October 17, 2012, and accepted the terms of the agreement on November 5, 2012. Claimant's last day of employment with Employer was December 28, 2012. She currently takes care of her ill mother on the weekdays and works for Cooks Pharmacy on the weekends when hours are available.
As the ultimate finder of fact, it is within the Board's purview to resolve all conflicts in evidence and to determine witness credibility and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008.)
The Unemployment Compensation Service Center issued a notice of determination finding Claimant eligible for benefits under Section 402(b). Employer appealed to the referee who reversed the UC Center's decision finding that Claimant did not have a necessitous and compelling reason for leaving her employment. Claimant appealed to the Board which reversed the referee's decision, determining that Claimant fell within the VLO proviso and is not ineligible for benefits under Section 402(b) or Section 401(d)(1), 43 P.S. § 801(d)(1). The appeal to this Court by Employer followed.
Section 401(d)(1) of the Law states that compensation shall be payable to any employee who is or becomes unemployed and who is able to work and available for suitable work. --------
Employer argues three points on appeal. First, Employer argues that Claimant did not prove that she had a necessitous and compelling reason for terminating her employment. Second, Employer argues that the Board erred in applying the holding in Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209, 1222 (Pa. 2012) retroactively. Finally, Employer argues that Claimant has not demonstrated that she was ready and available for suitable work.
Prior to the Pennsylvania Supreme Court's decision in Diehl, courts had consistently held that a claimant who accepts an early retirement offer did not fall within the VLO proviso and was ineligible for benefits unless the claimant could prove a necessitous and compelling reason for leaving employment. In Diehl, the claimant accepted a similar early retirement package to the one provided to the Claimant at bar. The Supreme Court reversed this Court's decision denying benefits, determining that the VLO proviso was designed to protect employees who accepted early retirement packages. Diehl, 57 A.3d at 1222 (stating that "[w]e instead conclude that the VLO proviso of Section 402(b) of the [Law], 43 P.S. § 802(b), applies to an 'otherwise eligible claimant' who accepts an early retirement plan offered pursuant to an employer-initiated workforce reduction"). If a claimant falls within the VLO proviso, the claimant is considered to not have voluntarily left employment without necessitous and compelling reason, but rather considered to have been laid off. Diehl, 57 A.3d at 1222.
Whether a law may be applied retroactively is a matter of judicial discretion. Walnut Street Assoc., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 479 (Pa. 2011). In Pennsylvania, courts apply the law in effect at the time of the appellate decision. Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511, 517 (Pa. 2005). Diehl was decided December 28, 2012, well before Claimant filed for benefits. Therefore, the Board properly applied Diehl and Claimant benefits from the new interpretation of the VLO proviso. Based on the Supreme Court's decision in Diehl, we conclude that Claimant did not need to demonstrate that she had a necessitous and compelling reason for voluntarily terminating her employment.
Employer also argues that Claimant failed to show that she was ready and available for work. When a claimant applies for benefits, it is assumed that she is ready and able to work unless evidence proves otherwise, which then shifts the burden to the claimant to prove that she is making an attempt to put herself in the labor market. Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237, 243 (Pa. Cmwlth. 2011). Employer argues that Claimant is not seriously entering the labor market because she is caring for her mother and is only available to work on weekends. "The law does not require the employee be available for full-time work, for permanent work, for [her] most recent work, or for [her] customary job, so long as the claimant is ready, willing, and able to accept some suitable work." Id. The Board found that Claimant currently is employed by Cooks Pharmacy. Board's Opinion at 2, Finding of Fact No. 11. Thus, we conclude that the Board did not err in determining that Claimant was ready and available for work.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 10th day of September, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge