Opinion
No. 2409 C.D. 2014
07-10-2015
Terry J. Jerin, Jr., 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 Terry J. Jerin, Jr. (Claimant) petitions, pro se, 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 forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant was employed by Kenny Ross (Employer) as a car salesperson. Claimant filed for unemployment compensation benefits after he voluntarily resigned on July 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, pertaining to voluntary quit without necessitous and compelling reason. Claimant appealed the Service Center's determination.
An evidentiary hearing was held before a Referee on October 20, 2014, during which Claimant and Employer's general manager testified and presented evidence. Claimant testified that he worked as a safety site person for the past fifteen years, but he decided to interview to be a car salesperson after his construction contract ended. (Certified Record (C.R.), Item No. 13 at 3.) Claimant stated that he had three interviews with Employer and began working on June 5, 2014. (Id. at 4, 6.) Claimant testified that Employer informed him during the interviews that an average employee earns $40,000 to $50,000 a year. (Id. at 5.) It was also explained to Claimant that a new employee will have a training wage of $500 per week for the first three months, but if the employee's sales exceeded a certain amount, the employee would receive a commission over and above the training rate. (Id. at 8, 9.) Claimant testified that, after several weeks of receiving the training pay and struggling to sell cars, he was having trouble paying his mortgage and utility bills. (Id. at 5.) Claimant stated that he discussed his issues with Employer's used car manager, who told Claimant that the "blueprint was there" and that Claimant needs to stop thinking like a customer and starting thinking like a salesperson. (Id. at 6, 7.) Shortly thereafter, Claimant emailed a resignation letter to Employer, explaining how the income was too low and that he is not a salesperson. (Id. at 5.) Claimant further testified that Employer provided false and misleading information about his potential income, which was the cause of his resignation. (Id. at 6.)
Employer testified that there was continued work available at Kenny Ross and that he had never talked to Claimant about Claimant's resignation. (Id.) Employer also stated that the average employee does make between $40,000 and $50,000 a year, and that Claimant's calculation that Claimant would only make $12,000 to $18,000 a year was erroneous. (Id. at 7.) Employer introduced evidence to confirm the average employee's annual income. (Id. at 8.) Employer also explained the payment process for new employees and what happens after the three months of training ends. (Id. at 9.)
The Referee issued a decision denying Claimant unemployment compensation benefits under Section 402(b) of the Law, because Claimant voluntarily quit his employment and did not show a necessitous and compelling reason. The Referee made the following findings of fact:
1. The claimant was employed by Kenny Ross as a salesman at a training rate of $500 per week or commission whichever is greater full-time from June 5, 2014 to July 28, 2014.
2. The claimant voluntarily left his employment due to his dissatisfaction with working conditions involving the compensation package.
3. At the time of his interview, the employer's general manager conveyed a salesman can expect earnings of $40,000 to $50,000 per year.
4. At the time of hire, the claimant was aware the training rate of $500 per week would be in place for three months.
5. During the last month of his employment, the claimant had gross earnings of $2,594.
6. Continuing work was available.
7. The claimant decided to seek employment in his field of safety.
8. The claimant was unable to earn sufficient compensation to meet his personal expectations.(C.R., Item No. 14.) The Referee reasoned:
Based upon the record developed, the Referee finds the testimony of the employer's general manager competent and credible that the employer did not misrepresent or deceive the claimant in regards to the earnings range of a salesman from $40,000 to $50,000 per year. The claimant's personal decision that he would be unable to meet his personal expectations from sales necessary to meet his preferred compensation does not establish cause of a necessitous and compelling reason for the claimant to leave his employment to seek employment in his historic field of safety which has no sales element. Therefore, the claimant is ineligible for benefits under Section 402(b) of the Law and benefits are denied.(Id. (emphasis added).) Claimant appealed to the Board, which issued an order affirming the Referee's determination. (Id. at 16.) The Board also adopted and incorporated the Referee's findings of fact and conclusions of law. (Id.) Claimant petitioned the Board for reconsideration, which the Board denied. (Id. at 19.) Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant essentially argues that substantial evidence does not exist to support the Board's finding that Employer did not misrepresent or deceive Claimant regarding the earning range of a salesperson. Claimant also argues that the Board erred as a matter of law in concluding that Claimant voluntarily terminated his employment without cause of a necessitous and compelling nature. Claimant basically contends that the Board erred in not finding that Claimant was misinformed about the potential income and not placing weight on Claimant's bills exceeding his income. Claimant insists that not being able to pay his living expenses, which would result in him being homeless, is a necessitous and compelling reason to 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. Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules, Inc. v. Unemployment Comp. Bd. of Review, 604 A.2d 1159, 1163 (Pa. Cmwlth. 1992).
First, we will address whether substantial evidence exists to support the Board's finding that Claimant was not deceived or misled by Employer regarding the compensation package. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. John 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).
In an unemployment case, 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, 1386 (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.
At the hearing, Claimant testified that he was informed during the interview process that an average salesperson makes $40,000 to $50,000 a year. (C.R., Item No. 13, at 5.) Claimant also stated that he did not know that a salesperson had to "establish" himself and that it usually takes three years to earn $50,000 a year. (Id. at 6.) Employer testified that it does not take three years to earn $40,000 to $50,000 a year and that an average Kenny Ross salesperson does make over $50,000 a year. (Id. at 6-7.) Employer also testified to Claimant's compensation package, explaining how much Claimant would make during the training period (if no sales were made) and how the compensation changes after the training period is over. (Id. at 9.) The Referee asked Employer if the compensation package, including the three-month training period and full commission rate after the training period, were explained to Claimant during the interview. (Id.) Employer stated that the compensation package is usually disclosed during the interview process, however, Employer stated that he "couldn't say under oath" if it was disclosed during Claimant's interviews. (Id. at 9-10.)
Viewing the record collectively, substantial evidence exists to support the Board's finding that Claimant was not misled or deceived by Employer. Employer stated that the disclosure of the compensation package usually occurs during the interview process. Even though Employer could not say for certain whether the disclosure occurred during Claimant's interview, the Board made a credibility determination and found Employer's testimony to be more credible than Claimant's. Thus, the Board found that Employer disclosed the compensation package to Claimant during the interview process. It is not this Court's role to make credibility determinations or to reweigh the evidence, therefore, substantial evidence exists to support the Board's findings.
Next, we will address Claimant's argument that the Board erred as a matter of law in concluding that he did not have a necessitous and compelling reason to quit. 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, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). A necessitous and compelling cause for voluntarily leaving employment is one that results from circumstances which produced pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Mercy Hosp. of Pittsburgh v. Unemployment Comp. Bd. of Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995). 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 his employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, "when [the Supreme Court] defined 'necessitous and compelling' cause for leaving work as 'circumstances which produce pressure to terminate employment that is both real and substantial,' it was never contemplated that the 'circumstances' might be the employee's personal goals, aspirations or ambitions which conflicted with some reasonable policy or requirement of the employer." Du-Co Ceramics Co. v. Unemployment Comp. Bd. of Review, 686 A.2d 821, 824 (Pa. 1996).
It is well settled that mere dissatisfaction with working conditions or one's wages does not provide a necessitous and compelling cause to quit employment. World's Finest Chocolate, Inc. v. Unemployment Comp. Bd. of Review, 616 A.2d 1114, 1117 (Pa. Cmwlth. 1992). Additionally, an employee's acceptance of a job indicates his agreement to the wages and conditions of employment. Stiffler v. Unemployment Comp. Bd. of Review, 438 A.2d 1058, 1060 (Pa. Cmwlth. 1982). Only when an employer deceives an employee as to his working conditions or substantially changes those conditions subsequent to hiring will the employee have a necessitous and compelling reason to voluntarily quit. Id.
Here, the Board found that Claimant voluntarily quit his employment because of dissatisfaction with the income package. When faced with conflicting testimony as to whether Employer gave Claimant false or misleading information, the Board found Employer to be more credible and determined that Claimant was correctly informed of the potential income package. It is not within this Court's scope of review to determine credibility or to reweigh the issues. The Board also found that dissatisfaction with and inability to meet personal expectations of income does not constitute a necessitous and compelling reason to voluntarily quit.
In an unemployment compensation case, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak, 501 A.2d at 1385. In making the credibility determinations, the Board "may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982). The Board is also empowered to resolve conflicts in evidence. DeRiggi, 856 A.2d at 255. --------
Thus, Claimant voluntarily quit his employment because he was dissatisfied with the income package. As stated above, mere dissatisfaction with income or employment does not constitute a necessitous and compelling reason to voluntarily quit. The Board did not err in determining Claimant ineligible for benefits, because he voluntarily quit without a necessitous and compelling reason.
Accordingly, we affirm the Board's decision.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of July, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge