Opinion
No. 1223 C.D. 2012
02-28-2013
Patricia M. McFarland, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Patricia M. McFarland (Claimant) petitions for review of the June 15, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee denying Claimant unemployment compensation benefits. The UCBR determined that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law) because Claimant left employment with Asera Care Home Health (Employer) without cause of a necessitous and compelling nature. We reverse.
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 that a claimant shall be ineligible for unemployment compensation benefits for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ."
Claimant filed an application for benefits on December 4, 2011, which the local service center denied. Claimant appealed and a hearing was held before a referee. After the hearing, the referee issued a decision denying Claimant benefits pursuant to section 402(b) of the Law, 43 P.S. §802(b).
Claimant appealed to the UCBR, which issued its own findings of fact in affirming the referee's decision. The UCBR found that Claimant worked full-time for Employer as a provider relations manager from July 27, 2009, through November 3, 2011, Claimant's last day of work. (Findings of Fact, No. 1.) Employer's competitor, the Jewish Association on Aging (Association), offered Claimant employment commencing November 21, 2011. (Findings of Fact, Nos. 4, 6.) The offer included a salary and benefits number, but was contingent upon Claimant passing a drug test, employment physical, and PPD test. (Findings of Fact, Nos. 6, 8, 9.)
Purified Protein Derivative test.
Claimant gave Employer two weeks' notice on October 28, 2011. (Findings of Fact, No. 3.) Employer did not allow Claimant to work after receiving her two week notice because Claimant intended to work for a competitor, but Claimant did receive a paycheck covering that time. (Findings of Fact, Nos. 4, 5.)
Claimant did not intend to work the week prior to November 21, 2011, so that she could take the tests. (Findings of Fact, Nos. 7, 8.) Claimant worked one day for her new employer, the Association, on November 21, 2011. (Findings of Fact, No. 11.)
There is no specific finding by the UCBR as to the reason for Claimant's separation with the Association. At the hearing, the referee stated that he was only interested in why Claimant left Employer, the Association wasn't at issue. (R.R. at 12a-14a.)
The UCBR acknowledged that receipt and acceptance of a firm offer of employment constitutes a necessitous and compelling reason to end an employment relationship. (UCBR Op. at 2.) However, the UCBR determined that Claimant did not have a firm offer of employment with Association on October 28, 2011, the day Claimant gave notice to Employer. "Significantly, the claimant did this testing the week following the final date of employment which she gave to her employer. Thus[,] at the controlling time, which was her last day of notice, the claimant had only the possibility that she would have a job on the successful completion of her tests." (Id.) The UCBR concluded that Claimant was ineligible for benefits. Claimant petitioned this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant argues that she, in fact, took the tests required by the Association, passed them, and worked for the Association on November 21, 2011. Because Claimant had a job with the Association, Claimant maintains that she established a necessitous and compelling reason for leaving Employer as a matter of law. We agree.
Section 401(f) of the Law provides:
Compensation shall be payable to any employe who is or becomes unemployed, and who-
. . . .
(f) Has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e), 402(e.1) and 402(h) of this act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate . . . .
Whether a claimant had cause of a necessitous and compelling nature to quit a job is a conclusion of law subject to review by this court. Kistler v. Unemployment Compensation Board of Review, 416 A.2d 594, 598 (Pa. Cmwlth. 1980). A claimant who voluntarily quits employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). A claimant must act prudently to establish a necessitous cause to quit due to an offer of employment. See Township of North Huntingdon v. Unemployment Compensation Board of Review, 450 A.2d 768, 769 (Pa. Cmwlth. 1982). "The receipt and acceptance of a firm offer of employment" constitutes cause of a necessitous and compelling nature to leave a job. Antonoff v. Unemployment Compensation Board of Review, 420 A.2d 800, 801 (Pa. Cmwlth. 1980).
In PECO Energy Company v. Unemployment Compensation Board of Review, 682 A.2d 49, 55 (Pa. Cmwlth. 1996), this court stated that "we must examine the circumstances surrounding each claimant's departure on an individual basis, so as to understand what exigencies he faced at the time he decided to separate from employment." Thus, the UCBR argues that our inquiry is limited to determining whether Claimant had a firm offer as of October 28, 2011, the date Claimant tendered her resignation.
We observe that in determining whether a claimant pursued a prudent course of action, this court has considered factors that occurred after a claimant's resignation. See Township of North Huntingdon, 450 A.2d at 770 (considering the fact that the claimant did not know that his new employment would be delayed until after his resignation became effective); Brennan v. Unemployment Compensation Board of Review, 504 A.2d 432-33 (Pa. Cmwlth. 1986) (noting that after accepting the position and resigning from her current job, the claimant received a letter that the new position was no longer available).
In this case, Claimant "had a start date with salary and benefits." (UCBR's Op. at 2.) Although the offer was contingent on Claimant successfully passing the tests, Claimant did, in fact, successfully complete the tests and worked for the Association. Thus, Claimant did not merely have an opportunity to get a job with the Association, Claimant had the job.
Moreover, this is not a case where the claimant became unemployed because she failed to satisfy the conditions of the offer. See Breslow v. Unemployment Compensation Board of Review, 517 A.2d 590, 593 (Pa. Cmwlth. 1986) (noting that the claimant's job was contingent upon her passing an aptitude test, which she failed).
In Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995), this court stated that:
the common denominator is whether a claimant voluntarily left job number one with a reasonable expectation of maintaining a source of income from employment at job number two. Where that expectation falls short through no fault of her own, i.e., the job becomes unavailable, the courts have held that the claimant had good cause for quitting job number one, thus entitling the claimant to benefits.
Here, the Association's offer required Claimant to successfully complete the tests prior to her employment. Claimant did so, removing any conditions attached to the offer, and commenced working for the Association. Because Claimant secured a job with the Association, we conclude that Claimant had a necessitous and compelling reason for leaving employment with Employer.
We recognize that Claimant, at her own peril, submitted to the tests after tendering her resignation. --------
Accordingly, we reverse the decision of the UCBR.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 28th day of February, 2013, we reverse the order of the Unemployment Compensation Board of Review, dated June 15, 2012.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING MEMORANDUM OPINION BY JUDGE McGINLEY
I respectfully dissent to the majority's conclusion that "[b]ecause Claimant secured a job with the [Jewish Association on Aging], we conclude that Claimant had a necessitous and compelling reason for leaving employment with [Asera Care Home Health] Employer." Majority Opinion at 6.
The majority notes that "[a]lthough the offer was contingent on Claimant successfully passing the tests [drug screen, employment physical, and PPD], Claimant did, in fact, successfully complete the tests and worked for the Association." Majority Opinion at 5-6. However, the Board did not make such a finding. The Board found:
. . . .
6. The claimant had an offer of employment to start work on November 21, 2011 for her new employer [Association] with a salary and benefits number.
7. The claimant planned not to work the week prior to November 21, 2011.
8. Claimant did so because she had to take and pass a drug screen, and employment physical and PPD test.Board's Decision, June 15, 2012, Findings of Fact Nos. 6-9 and 11 at 1-2.
9. Claimant admitted that her job offer was contingent on her passing these tests.
. . . .
11. Claimant worked one day for her new employer on November 21, 2011.
Based upon these findings, the Board determined that Claimant did not have a firm offer from the Association, only "a subjective belief that she could pass her three tests by her last expected workday November 11, 2012." Brief for Respondent at 8. Therefore, the Board concluded that Claimant lacked a necessitous and compelling reason to quit her employment with Employer. Although the majority would reverse the Board's decision, I believe on the record before us there is insufficient evidence to make a determination either way.
As a result, I would vacate the Board's order and remand for additional evidence concerning the following: 1) why Employer (Employer number one) is on the hook for unemployment compensation benefits after Claimant began work for the Association (Employer number two) and 2) why Claimant left the Association after only one day of work.
/s/_________
BERNARD L. McGINLEY, Judge
43 P.S. §801(f).
Section 401(f) of the Law, 43 P.S. §801(f), requires a review of the circumstances surrounding a claimant's separation from previous employment where, as here, Claimant earned less than six times her weekly benefits rate at her subsequent job with the Association from which she is now separated. Breslow v. Unemployment Compensation Board of Review, 517 A.2d 590, 592 (Pa. Cmwlth. 1986).