Opinion
No. 1444 C.D. 2011
06-04-2012
Pennie J. Geary, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Pennie J. Geary (Claimant) appeals, pro se, from an order of the Unemployment Compensation Board of Review (Board), denying her unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant applied for unemployment compensation benefits after voluntarily terminating her employment with Kepple Graft Funeral Home (Employer). The Indiana UC Service Center (Service Center) found Claimant ineligible for benefits because she failed to inform her Employer of the reason for leaving her employment. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a hearing was held before a Referee.
At the hearing in front of the Referee, Claimant testified to the circumstances surrounding her voluntary termination of employment. Claimant testified that she began working for Employer in July 2003. (C.R., Item No. 12 at 3.) Claimant testified that she terminated her employment with Employer because, on her final day of work, she had a burning in her stomach, which she thought was an ulcer. (Id. at 5.) Further, Claimant stated that she voluntarily terminated her employment because she grew "tired of [Employer] listening to [her] calls and following [her]." (Id. at 4, 5.) Specifically, Claimant testified that Employer would spy on her while at work. (Id.) To support this contention, Claimant testified that Employer would repeat the content of private conversations Claimant had with a third party outside of Employer's presence. (Id.) Claimant further alleged that Employer was following her, or having someone follow her, and she was unsure why she was being followed. (Id. at 6.) Claimant noted specific instances in which the subjects of Claimant's private conversations were brought to her attention at work by Employer. (Id. at 4-6.) For example, Claimant testified that she had a conversation at her home with her mother about wanting to attend the Super Bowl. (Id. at 7.) Claimant stated that she would attend if she was given a ticket to sit on the field. (Id.) Thereafter, Employer told a co-worker, in Claimant's presence, that Claimant would be attending the Super Bowl and would be sitting on the field. (Id.)
Claimant alleged that the spying only increased as time went on. (Id. at 6.) Claimant notified Employer of her complaints, and Employer recommended counseling. (Id. at 7.) As a result, Claimant met with Employer's minister. (Id.) Employer's minister noted Claimant's stress level, but Claimant testified that the minister had convinced her that "maybe it was all in [her] head." (Id. at 7.) Subsequently, according to Claimant's testimony, Claimant again notified Employer of the situation when the spying continued. (Id. at 8.)
Terrence Graft (also referred to as Employer), owner of the funeral home, testified at the hearing. Employer testified that he and his employees would receive telephone calls at their homes from Claimant after work hours. (Id. at 11.) Claimant would ask Employer and Employer's employees why they were following Claimant. (Id.) He further testified that Claimant indicated that there were satellites hovering over her home. (Id.) Employer noted that no one at Employer's business had any reason to follow Claimant. (Id. at 11-12.) He stated that neither he, nor any other employee, had sophisticated equipment which would allow them to listen to private telephone conversations. (Id. at 12.) Employer testified that this issue with Claimant was ongoing, and he had tried to help her. (Id. at 11.) In so doing, he assured her many times that no one was following her, and he encouraged Claimant to seek counseling. (Id.) Additionally, Employer had a lengthy conversation with Claimant's mother. (Id. at 11.) Claimant's mother informed Employer that she was worried about Claimant and was unsure what was wrong with her. (Id.) Employer testified that Claimant had voluntarily left her employment on several occasions and that he tried to encourage her by asking her to come and do her job. (Id.) Further, no employee had negative feelings toward her. (Id.) Employer informed his employees not to joke with Claimant, as she had trouble handling those issues. (Id. at 13.)
Subsequent to the hearing, the Referee determined that Claimant failed to prove that she had a necessitous and compelling reason for terminating her employment. (C.R., Item No. 13.) The Referee made the following findings of fact:
1. The Claimant was last employed by Kepple Graft Funeral Home as a part-time administrative worker from July 2003 through February 9, 2011.(Id.)
2. The Claimant worked an average of 28 hours per week at $13.25 per hour.
3. The claimant had recently been experiencing stress related symptoms and was attending counseling due to her concerns about the work environment.
4. The claimant believes that the employer has been closely monitoring her phone calls and personal conversations.
5. In essence, the claimant believes that the employer has been spying on her.
6. The claimant reported for work on February 9, 2011 and got an upset stomach.
7. The claimant felt that she could not "take this anymore" and left her job.
8. The claimant voluntarily quit her job because she felt she was being harassed.
The Referee reasoned that, under Section 402(b) of the Law, a claimant is ineligible for benefits when she voluntarily leaves work without a necessitous and compelling reason. (Id.) The Referee concluded that Claimant only presented uncorroborated and self-serving testimony to support her non-credible claims. (Id.) As a result, the Referee determined that Claimant failed to meet her burden of proving that she left her place of employment for a necessitous and compelling reason. (Id.)
Claimant appealed to the Board, and the Board affirmed the Referee's decision. (C.R., Item No. 16.) The Board adopted and incorporated the Referee's findings of fact and conclusions of law. (Id.)
We note that Claimant attempted to present additional evidence to support her claim to the Board. However, the Board properly rejected such evidence as Claimant failed to present the evidence to the Referee. See 34 Pa. Code § 101.106; Tener v. Unemployment Comp. Bd. of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990).
On appeal, Claimant argues that the Board erred in concluding that Claimant's testimony was self-serving and not credible. Further, Claimant argues that the Board committed an error of law when it determined that Claimant did not have a necessitous and compelling reason to terminate her employment.
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
We first address Claimant's argument that the Board erred in finding her testimony not to be credible. In an unemployment compensation case, the Board is the final finder of fact and arbiter of credibility. Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Here, the Board found Claimant's testimony to be self-serving and not credible. These decisions are within the Board's discretion and Claimant's argument, therefore, is without merit.
We next address Claimant's contention that the Board erred in concluding that Claimant did not prove a necessitous and compelling reason to voluntarily terminate her employment. Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court's review. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits his employment bears the burden of proving that necessitous and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), appeal denied, 568 Pa. 650, 794 A.2d 364 (1999). In order to establish cause of a necessitous and compelling nature, a claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like 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. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261 (Pa. Cmwlth. 2008).
To establish health problems as a reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems, and (3) be available to work if reasonable accommodations can be made. Ann Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010) (citing Genetin v. Unemployment Comp. Bd. of Review, 499 Pa. 125, 451 A.2d 1353 (1982)). Failure to meet any of these claims bars a claimant from unemployment compensation. Lee Hospital v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1998).
In this case, the Board concluded that Claimant failed to prove that she was under "real and substantial pressure" to terminate her employment. We agree. At the hearing before the Referee, Claimant testified that she was being spied on and followed by her co-workers and Employer, and that she believed that someone was watching her. Beyond her testimony, however, Claimant failed to provide any evidence that she was forced to terminate her employment because she was being spied on. The Board is entitled to disbelieve Claimant's testimony. Johnson, 744 A.2d at 820. Because Claimant failed to present any other evidence to support her contention, beyond her non-credible testimony, Claimant failed to prove "real and substantial pressure" to terminate her employment.
With respect to health problems, Claimant failed to properly allege that adequate health reasons justified her voluntary leave. Claimant testified that, on the last day of her employment, Claimant felt a burning in her stomach, which she felt was an ulcer. (C.R., Item No. 12 at 5.) Soon thereafter, Claimant testified that she "had it" with her employment and, as a result, quit. (Id.) This is the only testimony Claimant provides with respect to a health problem. As a result, Claimant failed to offer adequate testimony that she had health problems which caused her to terminate her employment. Further, Claimant did not, at any point, notify Employer of her alleged health problems prior to voluntarily terminating her employment. Specifically, Employer noted that "[Claimant] could never tell me what the problem [was]. She just kept blaming it on satellites chasing her down the street or above her house." (C.R., Item No. 12 at 12.) Having failed to meet the first two requirements of Genetin, Claimant is barred from receiving benefits based on a voluntary termination due to health reasons. Lee Hospital, 637 A.2d at 698.
Claimant attempts to introduce new evidence to support her health condition. Claimant's brief contains a diagnostic letter from Chestnut Ridge Counseling Services, which indicates that Claimant suffers from post-traumatic stress disorder due to Employer's actions. (Attached to Claimant's Brief as "Appendix.") Claimant cannot introduce additional or contrary evidence on appeal, as this Court is bound by the facts in the record. Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010).
Accordingly, because the Board has the discretion to consider the credibility of Claimant's testimony and Claimant failed to prove a necessitous and compelling reason for voluntarily terminating her employment, the Board did not err in denying Claimant benefits.
Claimant also attempts to argue that she received ineffective assistance of counsel from paralegal, John Peccon, who assisted Claimant with her case. We initially note that Mr. Peccon is a paralegal, not an attorney licensed to practice law in Pennsylvania. Additionally, "[t]he substantive due process right to effective assistance of counsel has never been extended to civil or administrative proceedings, but rather is limited to criminal prosecutions." Rosenthal v. Pennsylvania State Bd. of Pharmacy, 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (citing Johnson v. Workmen's Comp. Appeal Bd., 321 A.2d 728 (Pa. Cmwlth. 1978)). As a result, Claimant's argument lacks merit, and we need not address it further. --------
We, therefore, affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 4th day of June, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge