Opinion
No. 2362 C.D. 2014
07-13-2015
Richard H. Flanigan, 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 JUDGE BROBSON
Petitioner Richard H. Flanigan (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed an Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). For the reasons set below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was employed as a part time truck driver for Cory R. Fox Inc. (Employer). Claimant filed for unemployment compensation benefits after voluntarily quitting his employment on August 28, 2014. The Indiana UC Service Center (Service Center) issued a Notice of Determination finding Claimant ineligible for benefits under Section 402(b) of the Law. (Certified Record (C.R.), Item No. 7.) Claimant appealed the Notice of Determination.
A hearing before a Referee was conducted on October 16, 2014. (C.R., Item No. 11.) Claimant appeared without representation at the hearing and testified. Employer did not appear at the hearing. Claimant testified that Employer instructed him to take another driver's truck to Ohio and swap trucks with him. (Id. at 3.) Claimant stated that once he and the other driver swapped trucks, he discovered that his personal effects, such as boots, clothes, and other miscellaneous items, were missing from the truck, including his log book. (Id.) Claimant testified that he is legally unable to move his truck without his log book, which shows the previous seven days of work, pursuant to federal law. (Id.) Claimant stated that he called Employer and asked where his personal items were located. (Id.) Employer told Claimant that he had removed the items and placed them in his office. (Id.) Claimant stated his inability to drive his truck back to Pennsylvania due to his missing log book. (Id.) Employer told Claimant to start a new log book showing that Claimant was on vacation the previous seven days. (Id.) Claimant explained how doing this would be a violation of federal law, so he quit his job once he returned the truck to Pennsylvania. (Id. at 3-4.)
The Referee affirmed the Notice of Determination and determined Claimant ineligible for benefits. (C.R., Item No. 12.) The Referee made the following findings of fact:
1. The claimant was employed by Cory R Fox Inc. since July 17, 2013 as a part time Truck Driver working approximately thirty hours per week and earning 26% [of the truck load] as of his last day of work August 28, 2014.
2. On August 28, 2014, the claimant drove another driver's truck from Pennsylvania to Ohio with the
intent of retrieving his truck from the other driver when he reached Ohio.(Id.) In concluding that Claimant is ineligible for benefits, the Referee reasoned:
3. The claimant made the trek from Pennsylvania to Ohio without physically having a log of the hours he had driven over the past week with him.
4. On September 28, 2014, the claimant drove his own truck from Ohio back to Pennsylvania.
5. On September 28, 2014, the claimant voluntarily quit his employment.
In the instant case the claimant, at the hearing, argued that his employer suggested he create a fraudulent log book for the trip from Ohio to Pennsylvania and he quit in response to that suggestion. The Referee finds the claimant's testimony not credible for multiple reasons. The claimant had voluntarily driven from Pennsylvania to Ohio without a log book and without expressing any concern about the log book not being present. The Referee also notes that the log book was not mentioned at all when the claimant filed his application for Unemployment Compensation benefits. In his application for Unemployment Compensation benefits, the claimant asserted he was laid off. Later when questioned by the Unemployment Compensation authorities he acknowledged he had voluntarily left work but said it was because business was slow.(Id.)
The Referee must find that the claimant at the hearing was not being entirely forth coming [sic] about his reason for separating from employment . . . .
Claimant appealed the Referee's decision to the Board. The Board adopted and incorporated the Referee's findings of fact and conclusions of law except findings of fact 4 and 5. (C.R., Item No. 14.) The Board modified findings of fact 4 and 5 to reflect the date as August 28, 2014, not September 28, 2014. (Id.) The Board affirmed as modified the Referee's decision denying Claimant unemployment compensation benefits. (Id.) Claimant petitioned this Court for review.
On appeal, Claimant argues that (1) the Board capriciously disregarded relevant evidence by not finding that Employer directed Claimant to falsify his log book and (2) the Board erred as a matter of law by not finding that Claimant had a necessitous and compelling reason to voluntarily quit.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
First, we will address Claimant's argument that the Board capriciously disregarded relevant evidence that Employer directed Claimant to commit an illegal act. When determining whether the Board capriciously disregarded the evidence, the Court must decide if the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important. Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007). We have characterized capricious disregard of evidence as "a deliberate and baseless disregard of apparently reliable evidence." Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 814 (Pa. Cmwlth. 2005).
In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board also is empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). "Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review." Peak, 501 A.2d at 1388. In addition, the Board is not required to accept even uncontroverted testimony as true in making its determinations. Edelman v. Unemployment Comp. Bd. of Review, 310 A.2d 707, 708 (Pa. Cmwlth. 1973).
Claimant argues that the Board ignored relevant, undisputed evidence that Employer instructed Claimant to commit an illegal act. Claimant also asserts that the Board did not explain why it did not find Claimant's uncontroverted evidence to be credible. Claimant cites Hinkle v. Board of Pensions & Retirement, 881 A.2d 22 (Pa. Cmwlth. 2005), and Karwowski v. Unemployment Compensation Board of Review, 74 A.3d 1179 (Pa. Cmwlth. 2013), in support of his arguments. Hinkle and Karwowski, however, do not support Claimant's argument.
In Hinkle, this Court found that the Philadelphia Board of Pensions and Retirement did not capriciously disregard evidence because it "resolved conflicts in the . . . evidence by making credibility determinations and did not completely ignore overwhelming evidence without comment. . . . In fact, there was not 'overwhelming evidence.'" Hinkle, 881 A.2d at 26-27. Providing a detailed description of the application of capricious disregard post-Wintermyer, this Court explained how the capricious disregard standard is "nothing more than a shorthand way of referring to an amalgam of existing overlapping legal and constitutional standards . . . that safeguard against arbitrariness by state and local administrative agencies by requiring a meaningful explanation of why the losing party's overwhelming evidence was not accepted." Id. at 27 (emphasis added).
In a footnote in Hinkle, this Court also explained that "[w]here only one party presents evidence, however, the failure to credit such evidence still remains a per se violation of that standard." Id. at 27, n. 9. Generally, when only one party presents evidence, the evidence does not contradict. In the case now before the Court, Claimant himself provided conflicting evidence as to the reason for his separation from employment. Thus, the general proposition regarding per se violations is not applicable here, where conflicting evidence exists on the record.
Leon E. Wintermyer Inc. v. Workers' Comp. Appeal Bd.(Marlowe), 812 A.2d 478 (Pa. 2002).
In Karwowski, this Court found that the Board capriciously disregarded evidence in rendering its findings of fact numbers 6, 7, and 8, but we analyzed the Board's findings under a substantial evidence standard. Karwowski, 74 A.3d at 1182-83. First, it is important to note that the employer attended the hearing, but it did not offer evidence, testify, or cross-examine the claimant. Id. at 1182. The claimant testified that he quit his employment because he had a five-hour roundtrip commute to work, which, after two weeks, ultimately caused him to suffer from anxiety, stress, vomiting, sleeping disorders, and other related issues. Id. The Board denied the claimant unemployment compensation benefits, stating that the claimant did not have a necessitous and compelling reason to voluntarily quit. Id. at 1181.
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. (Id.) A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could reasonably support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
The claimant knew of the commute whenever he accepted the job. Karwowski, 74 A.3d at 1181. The job had a three-to-nine month probationary period in order to procure a permanent position, so the claimant was maintaining his current residence while trying to secure an apartment near employer's work site. Id. at n. 3.
The claimant appealed to this Court, alleging that the Board's findings of fact were not supported by substantial evidence. Id. Finding of fact number 6 provided that "[t]he claimant spoke with a human resource representative, who referred the claimant to another employee who had found an apartment near the employer's site at a reasonable price." Id. at 1182 (emphasis in original). This Court found that no evidence existed to support the Board's fact of "reasonable price," because the claimant testified that he could not find an affordable apartment and the employer offered no testimony as to the price of nearby apartments. Id. Finding of fact number 7 provided that "[t]he claimant did not consider sharing an apartment with a roommate." Id. at 1183. This Court also found that finding of fact number 7 was without evidence to support it, because the record did not contain any discussion of a roommate. Id. Finding of fact number 8 provided that "[t]he claimant did not speak to his direct supervisor about the transportation problem." Id. This Court found that no evidence supported this finding, because the claimant did discuss the situation with his direct supervisor and the employer did not present contradictory evidence. Id. Thus, this Court reversed the Board's denial of benefits because the Board capriciously disregarded relevant testimony by the claimant, which was not contradicted by the employer.
Here, the Board incorporated the Referee's findings of fact and conclusions of law in affirming the denial of benefits. The Referee not only commented on Claimant's credibility, but explained the multiple reasons contained in the record why she determined he lacked credibility. Furthermore, the Board is not required to accept uncontroverted testimony as true. Edelman, 310 A.2d at 708. Thus, the Board, in adopting the Referee's findings, made credibility determinations and explained those determinations in compliance with Hinkle.
Moreover, substantial evidence exists to support the Board's findings, unlike in Karwowski. Here, Claimant testified to his work history with Employer, described why he drove from Pennsylvania to Ohio, and stated that he voluntarily quit his employment as soon as he returned the truck to Pennsylvania. (C.R., Item No. 11.) These statements are accurately reflected in the Board's findings of fact, with the modification to findings numbers 4 and 5. In addition, Claimant did not object during the Referee hearing to the admission into the record of his internet initial claim, a record of an oral interview between him and an unemployment compensation representative, and other paperwork associated with his unemployment compensation application. (Id.) On the internet initial claim, Claimant indicated that he left employment because of "lack of work/laid off." (C.R., Item No. 2.) On Claimant's questionnaire form, Claimant indicated that he left employment "because it was getting slow." (C.R., Item No. 3.) Claimant also stated that he left his employment "because it was getting slow" during an oral interview with an unemployment compensation representative. (C.R., Item No. 5.) In addition, Employer's questionnaire form indicates that Claimant voluntarily quit his employment without providing a reason to Employer. (C.R., Item No. 4.) The Referee and the Board relied upon Claimant's testimony and the documents admitted into the record in forming their credibility determination and rendering findings of fact. Thus, substantial evidence exists to support the Board's findings of fact.
Finally, we will address Claimant's argument that the Board erred as a matter of law by concluding that Claimant did not have a necessitous and compelling reason to voluntarily quit. Even though Claimant is correct that a person has a necessitous and compelling reason to quit when an employer requires him to complete an illegal act, the Board discredited Claimant's testimony for the reasons stated above. Thus, because the Board found Claimant's testimony that Employer told him to engage in an illegal act to not be credible, the Board did not err in concluding that Claimant voluntarily quit his employment without a necessitous and compelling reason.
In Krieger v. Unemployment Compensation Board of Review, 415 A.2d 160 (Pa. Cmwlth. 1980), this Court has stated that "[j]eopardy to an employee's health or safety, dangerously unsafe equipment, or violation of the law all may constitute necessitous and compelling reasons for voluntary termination." Krieger, 415 A.2d at 161. --------
Accordingly, the Board's decision denying Claimant unemployment compensation benefits is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 13th day of July, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge