Opinion
No. 860 C.D. 2012
11-16-2012
Sean M. Misstishin, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Sean M. Misstishin (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee) denying Claimant unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). On appeal, Claimant contends that he should be granted UC benefits because he was unaware that Thompson Waterproofing (Employer) would have provided him transportation to and from work while Claimant's vehicle was being repaired. Because the record supports the Board's determination that Claimant failed to make a good faith effort to preserve his employment, we must affirm the Board's Order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that "[a]n employe 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." Id.
Claimant was employed as a full-time laborer by Employer for two days on September 26 and 27, 2011. Claimant applied for UC benefits alleging that: (1) he quit his employment because his vehicle was flooded on Employer's premises; (2) his vehicle was in the shop for two and one-half days for repairs; (3) he could not get a ride to work; and (4) no public transportation was available. The Scranton UC Service Center (Service Center) found that Claimant voluntarily quit his employment with Employer because of a loss of transportation and that the loss was not Claimant's fault. However, the Service Center found further that Claimant did not attempt to secure alternate transportation to and from work. Accordingly, the Service Center issued a determination finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the Law. (Claimant's Questionnaire, R. Item 3; Notice of Determination, R. Item 5.)
Claimant appealed the Service Center's determination and a hearing before a Referee ensued. Claimant appeared pro se and testified on his own behalf. Employer's general manager appeared and testified on behalf of Employer. The Referee made the following findings of fact:
1. [C]laimant was employed full time as a laborer by [Employer] from September 26, 2011 until September 27, 2011 at the final rate of pay of $100.00 per day.(Referee's Findings of Fact (FOF) at ¶¶ 1-10.) The Referee determined that, while Claimant's loss of transportation was through no fault of his own, Claimant "did not seek assistance from [E]mployer to provide transportation[;] [t]herefore, he did not exhaust all options." (Referee Decision at 2.) Thus, the Referee concluded that Claimant did not have cause of a necessitous and compelling nature for voluntarily quitting his employment and denied Claimant UC benefits pursuant to Section 402(b) of the Law. (Referee Decision at 2.)
2. [E]mployer is located in Pine Grove, Pennsylvania.
3. On September 27, 2011, [E]mployer's location was flooded.
4. [C]laimant drove home through the flooded roadways to commute home.
5. [C]laimant's vehicle was damaged in the commute.
6. [C]laimant's vehicle was not able to be driven for three days.
7. On September 28, and September 29, 2011, [C]laimant called off to [E]mployer due to the lack of transportation.
8. [C]laimant did not attempt to secure transportation through [E]mployer.
9. [C]laimant did not report to work or contact [E]mployer after September 29, 2011.
10. Continuing work was available to [C]laimant.
Claimant appealed to the Board. Upon review, the Board adopted the Referee's findings of fact and conclusions of law, but further explained:
The words of [C]laimant's supervisor in no way evidenced [] intent to discharge. Inexplicably[,] [C]laimant did not contact [E]mployer again after September 29, 2011, or return to work even though his car was fixed by Friday, September 30, 2011. [C]laimant has the burden of maintaining the employment relationship. [C]laimant clearly failed to make a good faith effort to do so.(Board Order.) Accordingly, the Board affirmed the Referee's Decision. Claimant now petitions this Court for review of the Board's Order.
This Court's review of a Board decision granting or denying a claim for UC benefits "is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). --------
A claimant who voluntarily terminates his 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). When transportation problems are alleged to constitute a necessitous and compelling cause to quit a job, the claimant must establish that: (1) the transportation issues presented an insurmountable problem; and (2) he took reasonable steps to overcome the problem or remedy the situation prior to quitting. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727, 730 (Pa. Cmwlth. 1989). These standards require this Court to evaluate the claimant's behavior to decide whether he acted reasonably under the circumstances. Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 441 (Pa. Cmwlth. 1996). Whether an employee has a necessitous and compelling reason to voluntarily quit is a question of law fully reviewable by this Court. Pacini v. Unemployment Compensation Board of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986).
Here, Claimant does not address the Board's determination that he did not make a good faith effort to maintain his employment because Claimant inexplicably failed to contact Employer after his vehicle was repaired. Instead, Claimant contends that because his supervisor did not notify him that Employer would arrange alternative transportation while his vehicle was being repaired, he should receive UC benefits. Claimant implies that his assertion regarding lack of notification is credible because the supervisor was not at the Referee's hearing and Employer's general manager was not aware of what the supervisor said or did not say to Claimant.
The record shows that: (1) Claimant's vehicle was inoperable for approximately three days due to circumstances beyond Claimant's control; (2) Claimant informed his supervisor of the situation on September 28 and 29, 2011; (3) Claimant's vehicle was repaired on September 30, 2011; and (4) Claimant never contacted Employer after his vehicle was repaired. (FOF ¶¶ 6-9; Referee Hr'g Tr. at 7-8.) Therefore, the issue here is not whether Claimant is ineligible for UC benefits pursuant to Section 402(b) because he did not seek alternative transportation. Rather, the issue is whether, after Claimant's transportation problem was resolved, he made a reasonable effort to preserve the employment relationship.
Pursuant to Claimant's own testimony, when Claimant first called Employer on September 28, 2011, to report that his vehicle was inoperable due to the flooding at Employer's place of business, the supervisor told Claimant to call back and inform Employer if his vehicle was repaired. When Claimant called back the next day on September 29, 2011 to inform Employer that his vehicle was still not operable, the supervisor did not specifically tell Claimant to call back again, so Claimant assumed that Employer no longer needed his services. Claimant's vehicle was fixed on the afternoon of Friday, September 30, 2011; however, he did not call Employer to ascertain if he was scheduled to work the following week and he did not return to work the next Monday. Claimant believed that because his supervisor did not specifically tell Claimant on September 29, 2011 to call back again, or to come or not come back to work, he was terminated as of September 30th. (Referee Hr'g Tr. at 7-8.)
As stated by this Court, in order to constitute an involuntary termination of employment rather than a voluntary quit:
An employer's language must possess the immediacy and finality of a firing in order for that language to be interpreted as a discharge. Sweigart v. Unemployment Compensation Board of Review, . . . 408 A.2d 561 ([Pa. Cmwlth.] 1979). Where an employee, without action by the employer, leaves or quits work, the employee's action is considered voluntary under the Law. Roberts v. Unemployment Compensation Board of Review, . . . 432 A.2d 646 ([Pa. Cmwlth.] 1981).Charles, 552 A.2d at 729. As explained by the Board, the supervisor's statements, as testified to by Claimant, did not evidence intent to discharge Claimant. Therefore, Claimant's testimony supports the Board's determination that he voluntarily quit his job without a necessitous and compelling cause when he failed to act reasonably to preserve his employment. A reasonable person in Claimant's situation would have contacted Employer after his vehicle was repaired, informed Employer that he was once again available for work, and inquired as to when he should return to work. Accordingly, the Board properly denied Claimant UC benefits pursuant to Section 402(b) of the Law.
For the foregoing reasons, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 16, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge