Opinion
No. 1941 C.D. 2013
07-10-2014
Philip Lowry, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Philip Lowry (Claimant) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the decision and order of the Referee, thus denying him benefits under 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). Section 402(b) of the Law provides, in pertinent part, that an employee 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."
Claimant was employed as a full-time mason by Reed Masonry (Employer). Claimant ceased working for Employer on November 28, 2012, and applied for unemployment benefits. The Scranton UC Service Center (Service Center) found that Claimant voluntarily quit without a necessitous and compelling reason and was, therefore, ineligible for benefits under Section 402(b) of the Law. Claimant appealed.
Claimant and Employer testified at an evidentiary hearing before a Referee. Claimant testified that he was working with Roach, a friend of Employer and occasional co-worker, when Roach became arrogant, cocky, and belittling, and began nitpicking Claimant's work. (Certified Record (C.R.), Item No. 8 at 4.) Claimant testified that he then called Employer and informed Employer that he and Roach were not getting along and were "going to end up fighting on the front yard." (Id.) Employer told Claimant that he was five minutes away, and Claimant began packing up his tools. (Id.) Claimant testified that he explained the situation to Employer when he arrived, and Employer told him: "[G]o home. I'll call you when we start the block job." (Id.) Claimant testified that he then spent several days texting and calling Employer, begging for his job back. (Id. at 5-7.) Claimant testified that he finally received a voicemail from Employer on December 6, 2012, wherein Employer stated:
I don't have job for you no longer. I guess we'll say you're fired due to your actions. Can't show up for work, can't work with anybody else. Enough is enough though. You did this to yourself. I am so sick of arguing with you. You couldn't even wait until I got back that day. And (inaudible), you just kept going. I just had enough of it Phil. Enough is enough. You missed work how many times. And you leave the job and you don't want to work. Enough is enough Phil. You didn't care
about the job, that's why you lost the job. You didn't care about the job. That's why you lost the job. That's the reason. Okay.(Id. at 5.)
In response, Employer testified that he had been gone from the job site for less than an hour when he received a phone call from Claimant, informing him that Claimant did not like working with Roach and could not get along with him. (Id. at 8.) Employer further testified that when he arrived at the site, he "tr[ied] to talk [Claimant] into staying until -- you can work with me. What's the difference? But he had his mind made up. His tools packed. And just wanted to stand [and] argue with me." (Id.) Employer clarified that Claimant "didn't even have to work [with] that guy. He could have worked with me . . . [o]n a different part of the sidewalk." (Id. at 9.) Finally, Employer testified that he told Claimant: "You don't want to work, go home." (Id.)
Following the hearing, the Referee issued a decision and order, affirming the Service Center's determination that Claimant was ineligible for benefits because he quit his employment without cause of a necessitous and compelling nature. The Referee made the following findings of fact:
1. The claimant was last employed by Reed Masonry from April 1, 2011 through November 28, 2012.
2. The claimant was employed as a full time mason at the rate of $17.00 per hour.
3. On November 28, 2012, the claimant got involved in a verbal argument with a co-worker on the job site.
4. The claimant notified the owner who [w]as also on the job site that he was not going to work with the co-worker.
5. The owner told the claimant he should either work or leave the job site.(C.R., Item No. 9.) The Referee's discussion further provides that:
6. The claimant did leave the job site with his tools.
The testimony of both parties established that there was a verbal confrontation between the claimant and a co-worker at the work site on November 28, 2012.(Id.)
The claimant repeatedly stated in the hearing that he did not get along with the guy he was working with. The claimant stated he would not work with that co-worker and gathered his tools.
The owner stated he did not have to work along side [sic] the co-worker but that he should work with him (the owner). The claimant stated he would not continue to work with the co-worker. At that point, the owner stated if the claimant was not going to work that day he should leave the work site.
Based on the testimony given, the claimant was given a choice to either return to work or leave the job site. The claimant made that choice by voluntarily gathering his tools and leaving. The claimant has not established cause of a necessitous and compelling nature since the employer did give him an option to work with him, and not the co-worker.
Claimant appealed to the Board. The Board noted the conflicting testimony and explicitly resolved the conflicts in testimony in favor of Employer. The Board adopted and incorporated the Referee's findings of fact and affirmed the decision of the Referee. (C.R., Item No. 12.)
On appeal to this Court, Claimant lists 12 questions in his Statement of Questions Presented. We have condensed these questions into five issues: (1) a challenge to the credibility of Employer; (2) a substantial evidence challenge to the Board's findings of fact; (3) hearsay challenges; (4) a legal error challenge to the Board's determination that Claimant quit without cause of a necessitous and compelling nature; and (5) complaints about the Referee's conduct. In response, the Board argues that substantial evidence supports its findings of fact, and that it did not err in determining that Claimant voluntarily left employment without cause of a necessitous and compelling nature. We will address each of Claimant's issues in turn.
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.
Claimant's first issue complained of on appeal is a challenge to the credibility of Employer. 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 is also 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.
Claimant contends that Employer's testimony was not truthful, that it "conveniently changed" during the hearing to suit Employer's needs, and even goes so far as to allege Employer committed perjury. (Pet'r Br. at 17-18.) The only statement Claimant specifically identifies as being inconsistent is Employer's testimony that he was present at the job site. Employer testified that he was at the job site, left briefly, and returned to the job where his conversation with Claimant took place. (C.R., Item No. 8 at 8-9.) A careful review of the record reveals that Employer's testimony is not only internally consistent, it is also consistent with his statement in the Employer Questionnaire (C.R., Item No. 3), Claimant's statement in the Claimant Questionnaire (C.R., Item No. 2), and Claimant's own testimony at the hearing (C.R., Item No. 8 at 4, 12-13). Furthermore, the Board explicitly resolved any conflict in testimony in favor of Employer, and implicitly credited Employer's testimony. This Court will not disturb those determinations.
The second issue Claimant raised is, in essence, that substantial evidence does not support the Board's findings of fact. 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 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).
Specifically, Claimant alleges that finding of fact number four and finding of fact number five are not supported by substantial evidence. Those findings of fact provide: "The claimant notified the owner who [w]as also on the job site that he was not going to work with the co-worker[,]" and "The owner told the claimant he should either work or leave the job site." Claimant argues that both findings are "false," because Employer "later admitted that he was not present at the jobsite," and that Employer told Claimant to "return home and return upon the start of the block job." (Pet'r Br. at 18.)
Both findings are supported by substantial evidence. Employer's testimony supports these findings. (C.R., Item No. 8 at 8-9.) As discussed above, the Board resolved all evidentiary conflicts in favor of employer, and Employer's testimony thus constitutes substantial evidence. Employer's statement in the Employer Questionnaire also supports these findings. (See C.R., Item No. 3 ("[W]hen [I] arrived the [Claimant] told me that [Roach] was nit picking at him and commenting on his work and that they had an argument and that he could not work like this . . . . [I] told him if he does not want to work then he needs to go home.").) Furthermore, Claimant's own statement in the Claimant Questionnaire supports these findings. Claimant stated that when Employer "showed up and [I] told him what [Roach] was doing and saying about my work and that [I] told him [I] can not [sic] work with this guy, he said if your [sic] not going to work then go home." (C.R., Item No. 2.) Lastly, Claimant's own testimony at the hearing supports these findings. Claimant testified, in response to the Referee's reading of the previous statement from the Claimant Questionnaire, that it was "True." (C.R., Item No. 8 at 13.)
Claimant's third issue asserted on appeal is that he was not given an opportunity to challenge hearsay documents upon which Employer's case was based and that the admission of such hearsay was prejudicial to him. Claimant, however, fails to identify any document which he believes contains hearsay. Furthermore, Claimant made absolutely no attempt to object to any document or testimony based on hearsay at the hearing. Although hearsay, if properly objected to, cannot be considered substantial evidence, un-objected to hearsay may form the basis of substantial evidence if corroborated by other evidence in the record. Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). Because Claimant did not object to any document or testimony as hearsay, those documents or testimony could still form the basis of substantial evidence if corroborated by other evidence in the record. Claimant's testimony alone supports all of the findings of fact adopted by the Board. In fact, it does not appear that the Referee or the Board relied upon the admitted documents in rendering factual findings. Moreover, even if the Referee or Board had relied upon those documents, Claimant's testimony corroborates any potential hearsay that may be contained therein. Thus, even if one of these items did contain hearsay, it would be supported by other evidence in the record, and, therefore, could be relied upon by the fact finder. See id. Hence, we perceive no error on the part of the Board.
The following documents were admitted into the record at the hearing: Certification of Documents, Petition for Appeal (including the envelope and additional statement), Notice of the Service Center Determination, Claimant Questionnaire, Employer Questionnaire, a copy of the Claims Record, and the Notice of Hearing.
Although Claimant repeatedly contends that Employer was not present for "the incident," Employer was clearly present for his conversation with Claimant at the job site. As this is the only part of "the incident" to which Employer testifies, his testimony clearly cannot be considered hearsay. The fact that Employer was not present during Claimant's disagreement with Roach is immaterial, as Employer's testimony about "the incident" is confined to what Claimant told him during their conversation at the job site. The words of a party constitute an admission and, therefore, may always be used against him. Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606, 609 (Pa. Cmwlth. 2014) (per curiam).
Claimant's fourth issue raised on appeal is that the Board erred in determining that he quit without cause of a necessitous and compelling nature. Whether a claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to review by this Court and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A claimant seeking unemployment compensation benefits bears the burden of establishing either that (1) his separation from employment was involuntary or (2) his separation was voluntary but he had cause of a necessitous or compelling nature that led him to discontinue the relationship. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859-60 (Pa. Cmwlth. 2004). In other words, in order to be eligible for unemployment compensation benefits, the claimant bears the burden of proving separation from employment, whether voluntary or involuntary. See Bowman v. Unemployment Comp. Bd. of Review, 410 A.2d 422, 423 (Pa. Cmwlth. 1980). A finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave his employment. Spadaro, 850 A.2d at 859. On the other hand, to be interpreted as a discharge, the employer's language must possess the immediacy and finality of a firing. Charles v. Unemployment Comp. Bd. of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989).
Claimant challenges the Board's determination that he quit on a number of grounds, the first of which is that "[t]he burden of proof seemed to rest primarily on [Claimant] to prove he did not quit his job, which should have fallen on [Employer] to prove." (Pet'r Br. at 14.) As this is clearly contrary to the established precedent of this Court, see Bowman, 410 A.2d at 423, we need not address this further. Claimant then argues that the Board's determination is wrong because at the time he left the job site, Claimant believed he would be contacted by the Employer when Employer started the block job and did not intend to quit. The Board, however, did not credit Claimant's testimony that Employer told him he would be contacted for the block job, but instead credited Employer's testimony that Claimant should either work or leave the job site. As discussed above, this finding of fact is supported by substantial evidence and, thus, binding on this Court. The language used here by Employer clearly presents a choice to Claimant: stay and work, or go home. Claimant chose to go home. When a claimant is presented with a real choice between staying at work (and thus keeping his job) or leaving and the claimant chooses to leave, the claimant has constructively quit his employment. See Monaco v. Unemployment Comp. Bd. of Review, 565 A.2d 127, 130 (Pa. 1989) (holding that claimants voluntarily quit when they "were offered a real choice between alternatives and chose to leave employment"); Helsel v. Unemployment Comp. Bd. of Review, 421 A.2d 496, 499 (Pa. Cmwlth. 1986) (holding that claimant quit when she left after being told to "work or go home"). Thus, the Board did not err in determining that Claimant quit.
The Referee and Board found that Claimant quit his employment when he walked off the job. Employer's voicemail a week later, which characterized Claimant's separation from employment as being "fired," cannot alter the nature of Claimant's prior separation. See Grief v. Unemployment Comp. Bd. of Review, 450 A.2d 229 (Pa. Cmwlth. 1982) (holding that employer's termination letter was simply recognition of claimant's earlier quit); cf. Axelrod v. Unemployment Comp. Bd. of Review, 455 A.2d 289 (Pa. Cmwlth. 1983) (holding claimant cannot resign after he has been terminated).
Generally, when a claimant voluntarily leaves work, the claimant bears the burden to establish that he left work for cause of a necessitous and compelling nature in order to be entitled to benefits. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Cause of a necessitous and compelling nature "'results from circumstances which produce 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.'" Monaco, 565 A.2d at 130 (quoting Taylor, 378 A.2d at 832-33). Thus, in order to show that he is entitled to benefits, Claimant must establish that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) he acted with ordinary common sense; and (4) he made a reasonable effort to preserve his employment. Stugart, 85 A.3d at 614.
Here, Claimant alleges that he was "placed under duress due to the abusive and disrespectful actions and comments" of his co-worker, Roach, and further alleges that he "feared for his safety and personal freedom" because he was in a "dangerous environment contending with a trained fighter." (Pet'r Br. at 22.) Claimant argues that his "duress" was a necessitous and compelling reason to quit. The record reveals, however, that Claimant described Roach's behavior as "very arrogant and cocky," "belittling," and "nit picking." (C.R., Item No. 2; C.R., Item No. 8 at 4.) Claimant states that they were "verbally arguing" and were "not getting along." (C.R., Item No. 2; C.R., Item No. 8 at 4.) Nowhere in his testimony does Claimant allege that Roach actually threatened him, either physically or verbally. In fact, Employer directly asked Claimant whether or not Roach threatened him with physical violence, and Claimant's only response was that Roach "has a reputation for it." (C.R., Item No. 8 at 12.) Claimant's allegations that Roach was arrogant, cocky, and belittling do not rise to the level of duress. Claimant's verbal argument with Roach is not a circumstance which produced "real and substantial pressure to terminate employment," nor one which would "compel a reasonable person" to quit his job. Disagreements with co-workers are common, and such disagreements are not necessitous and compelling reasons to quit. Thus, the Board did not err in concluding that Claimant did not have a necessitous and compelling reason to quit.
Claimant's fifth and final issue on appeal alleges that the Referee failed to fulfill her duty to assist Claimant as required and that the Referee abused her discretion by refusing to admit some of Claimant's evidence. The Pennsylvania Code provides that when a claimant is proceeding pro se, the referee should "advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of [her] official duties." 34 Pa. Code § 101.21(a). Thus, this Court has held that the referee has a responsibility to
assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately
developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits. The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found.Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982) (emphasis in original) (citations omitted) (internal quotation marks omitted).
Here, Claimant argues that the Referee failed to assist Claimant as required in the following ways: failed to inform him of the rules of hearsay; failed to advise him of rights; did not inform him of his right to cross-examine Employer and gave him no opportunity to do so; and made no effort to solicit Claimant's side of the story, but instead, took as fact the assumption that Claimant voluntarily quit. We disagree. Our review of the transcript reveals that the Referee began by informing the parties that: "All parties have the right to be represented by an attorney or a duly authorized representative of your choice. You have the right to give testimony and evidence. You have the right to question the other party." (C.R., Item No. 8 at 3.) The Referee then asked Claimant if he understood his rights, and Claimant answered "Yes." (Id.) This is sufficient to fulfill the Referee's duty to inform Claimant of his rights. The Referee is not required to advise Claimant, even when unrepresented, about evidentiary matters or specific points of law, including the rules of hearsay. Rohrbach v. Unemployment Comp. Bd. of Review, 450 A.2d 323, 325 (Pa. Cmwlth. 1982). Furthermore, Claimant's argument that he was not given an opportunity to question Employer is meritless, as the record reveals that the Referee asked Claimant if he had "questions for Mr. Reed regarding what he's testified to," and that Claimant then proceeded to cross-examine Employer. (C.R., Item No. 8 at 11-15.) Likewise, Claimant's contention that the Referee made no effort to solicit his version of events is also meritless, as roughly one-third of the hearing was spent doing exactly that. Moreover, at the conclusion of Claimant's testimony, the Referee summarized Claimant's testimony and then sought clarification on several points. (Id. at 6-7.) Because the Referee advised Claimant of his rights and permitted him to cross-examine Employer, the Referee fulfilled his duty to assist Claimant.
Claimant also argues that the Referee did not give him an opportunity to challenge hearsay documents, but, as discussed above, Claimant has failed to identify any document he considers hearsay, and this Court, upon review of the record, was unable to identify any documents containing hearsay. We further note that after describing the documents to be admitted to the record, the Referee specifically asked Claimant if he had any objections, to which he answered "No." (C.R., Item No. 8 at 1.) We will, therefore, not address this contention any further. --------
Title 34, Chapter 101 of the Pennsylvania Code, relating to practice and procedures before the Board, provides that, "[w]ithin the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights." 34 Pa. Code § 101.21(b). In exercising this discretion, a referee has "wide latitude" in the admission of evidence. Creason v. Unemployment Comp. Bd. of Review, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). The referee, however, "may not improperly refuse to accept relevant competent and material evidence." Healey v. Unemployment Comp. Bd. of Review, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978). But even relevant evidence may be excluded if it would constitute cumulative evidence.
Claimant contends that he "informed the referee of the evidence he possessed pursuant to his position in proving he was legally eligible for unemployment benefits. . . . [H]owever, [he] was only allowed to present the voicemail he had from [Employer]. The remaining evidence [he] possessed had the merit to prove his eligibility for benefits." (Pet'r Br. at 19-20.) Claimant does not identify what evidence he had at the hearing that the Referee prevented him from presenting. This Court can only assume that Claimant is referring to some text messages Claimant mentioned which allegedly show Claimant asking Employer about the start of the block job. (See C.R., Item No. 8 at 5.) To begin with, Claimant never asks the Referee to admit the texts, nor does he offer to show the texts to the Referee. Moreover, even if the texts were admitted, they would not, as Claimant seems to think, support his version of events in which Employer told him he would contact Claimant for the start of the block job, because all of the texts are from Claimant to Employer. Claimant never once states that any of the texts are from Employer, or, in fact, that Employer ever texted him back at all. The Referee's failure to proactively pursue evidence not actually offered by the Claimant was not an abuse of discretion.
For the reasons discussed above, the order of the Board is hereby affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of July, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge