Opinion
No. 1813 C.D. 2013
04-30-2014
Joseph D. Porrini, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Joseph D. Porrini (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed, with modification, the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), relating to the voluntary termination of employment without a necessitous and compelling reason. 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 filed for unemployment compensation benefits after he ceased employment with B and L Solutions (Employer) on November 13, 2012. The Altoona UC Service Center (Service Center) issued a determination denying benefits to Claimant because he failed to show a necessitous and compelling reason for voluntarily terminating his employment. The Service Center also determined that Claimant was at fault for an overpayment of benefits in the amount of $3,646. Claimant appealed the Service Center's determination. (Certified Record (C.R.), Item No. 12 at 1.)
A Referee conducted a hearing at which he considered whether Claimant resigned for a necessitous and compelling reason. The Referee, finding that Claimant did not resign for a necessitous and compelling reason, affirmed the determination of the Service Center. Claimant appealed to the Board.
The Board affirmed the Referee's determination that Claimant was ineligible for benefits due to his resignation without cause of a necessitous and compelling nature, but it reversed the Referee's determination concerning fault overpayment. In so doing, the Board made the following findings of fact:
1. The claimant was employed by B and L Solutions from 2010 until November 13, 2012.
2. The claimant was employed as a full time plumber and was paid $16 per hour.
3. Around November of 2012, the employer's work load dropped, and the claimant was getting less than full time hours each week.
4. The claimant filed for partial unemployment compensation benefits for one week.
5. The claimant had a meeting with the employer in which he asked for more hours to amount to full time.
6. The claimant was told that the employer could not give him more hours at that time.
7. The claimant and employer discussed the claimant's eligibility to file for unemployment.(C.R., Item No. 16 at 1-2.)
8. The claimant resigned.
9. When the claimant filed for unemployment compensation benefits, he indicated that the reason he was unemployed was lack of work.
10. The claimant did not intend to mislead the Department about the reason for his unemployment.
The Board, in concluding that Claimant failed to prove that he had cause of a necessitous and compelling nature to leave his employment, reasoned:
Quite simply, the Board finds and concludes that the claimant's reason for resigning does not rise to the level of necessitous and compelling cause sufficient to qualify for benefits. In light of the fact that Claimant was aware that he could file for partial benefits while remaining in his job with the employer, Claimant did not establish that he had no reasonable alternative but to resign, as he was required to do under section 402(b) of the Law.(Id. at 3.)
Claimant now petitions this Court for review. On appeal to this Court, Claimant makes the following arguments: (1) the Board's factual findings were not supported by substantial evidence; (2) the Board erred in concluding that Claimant resigned as opposed to being discharged; and (3) the Board erred in concluding that Claimant did not have necessitous and compelling reasons for resigning.
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 address Claimant's issues as set forth in Respondent's Counter-Statement of the Questions Involved. In addition to these issues, Claimant also appears to argue that the Board failed to consider the testimony of Employer's witness that the witness directed Claimant to file for unemployment and told Claimant to use lack of work as the reason. We note that during the hearing, Employer's witness did not testify that he directed Claimant to file for unemployment. Rather, he testified that he advised Claimant to contact the Service Center if he had questions: "He did ask me about unemployment. I told him I'm not an expert on it. He needs to contact the unemployment office to start benefits on it." (C.R., Item No. 12 at 6.) When asked whether he told Claimant to use lack of work as a reason for his separation from employment, he responded that "all I ever said was you'll have to talk to the unemployment people about any eligibility." (Id.) The Board found that "[t]he claimant and employer discussed the claimant's eligibility to file for unemployment," not that Employer told Claimant to file or to use lack of work as his reason. (C.R., Item No. 16.)
First, we will address Claimant's argument that substantial evidence does not exist to support the Board's factual findings. 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, 474 Pa. 351, 355, 378 A.2d 829, 831 (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, 506 Pa. 274, 286, 485 A.2d 359, 365 (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).
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, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (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, 509 Pa. at 276-77, 501 A.2d at 1388.
Claimant argues that substantial evidence of record does not exist to support the Board's finding of fact number eight, which provides that "the claimant resigned." (C.R., Item No. 16.) He claims that on the day he separated from his employment, he had gone to speak with Employer's owner not to resign, but to work out a solution for the decrease in his work hours. He contends that during this conversation, Employer told him that "it would be best to 'go our separate ways.'" (Pet'r Br. at 7.) He argues that this amounts to a discharge.
Here, the record reveals that Employer's witness testified that Claimant "decided to leave if I couldn't give him any additional hours on the thing." (C.R., Item No. 12 at 5-6.) He also testified that Claimant said that "he was not [in] a position that he could stay in at all" if he did not get more hours. (Id. at 5.) Further, when he told Claimant that he had no more hours to give him, Claimant responded, "well I can't do this." (Id. at 7.) Additionally, Claimant signed a form, which provided that he was resigning from his position. (C.R., Item No. 2.) The testimony of Employer's witness and the form support the Board's finding that Claimant resigned. Accordingly, when viewed in a light most favorable to Employer, our review of the record demonstrates that there is substantial evidence to support the Board's finding of fact number eight.
The form, dated November 13, 2012, contained the following statement by Claimant: "I, Joe Porrini, am resigning from my job at Granite Transformations effective today." --------
Next, we will address Claimant's argument that the Board committed an error of law when it found that he resigned as opposed to being discharged. Claimant argues that he was discharged when Employer told him it was "best to 'go our separate ways.'" (Pet'r Br. at 7.) He claims he had no intention of separating from his employment. (Id.) Thus, he argues the Board erred in finding that he voluntarily terminated his employment.
Whether a Claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to this Court's review 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). "[I]t is a claimant's burden to prove that his separation from employment was a discharge." Id. at 412. If a claimant proves that he was discharged, then the burden to prove that the claimant was discharged for willful misconduct is on the employer. Id. at 412-13. If a claimant fails to prove that he was discharged, then the claimant has the burden to prove necessitous and compelling reasons for quitting. See Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). A finding of voluntary termination is essentially precluded unless the claimant has a conscious intention to leave his employment. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). 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).
Our review of the record reveals that Claimant demonstrated a conscious intention to leave his employment. Claimant initiated the discussion with Employer concerning his hours. (C.R., Item No. 12 at 5.) When he was told that there were no extra hours available, he stated that he "was not [in] a position that he could stay in at all." (Id.) This conduct demonstrates that Claimant gave Employer an ultimatum. Essentially, Claimant informed Employer that if he did not get more hours, he would quit. In support of this ultimatum, Claimant discussed his eligibility for unemployment compensation with Employer and signed a form indicating that he was resigning from his position. (Id. at 6.) He did not return for work the following day. Claimant, not Employer, placed his employment status in question by issuing an ultimatum and by taking action in furtherance thereof. From these circumstances, it is apparent that Claimant had a conscious intention to resign. Thus, Claimant did not carry his burden of proving that he was discharged, and the Board properly applied Section 402(b) of the Law.
Last, we will address Claimant's argument that the Board erred in concluding that Claimant did not have cause of a necessitous and compelling nature for voluntarily resigning. 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, 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, 264 (Pa. Cmwlth. 2008). It is well-settled that an employer's unilateral imposition of a substantial change in the terms and conditions of employment provides a necessitous and compelling reason for an employee to leave work. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003). The impact that the employer's changes have upon the employee, not the employer's reasons for instituting the changes, is the focus of the inquiry. Id. at 1271.
Claimant essentially argues that the reduction in his hours was a substantial change in the terms and conditions of his employment. He claims that the sole reason for his separation from employment was the lack of work. Thus, he argues that there was cause of a necessitous and compelling nature for his resignation.
Claimant failed to show, however, that the change in hours constituted a substantial change in the terms and conditions of his employment. Although both Claimant and Employer testified that Claimant's hours were reduced, Claimant did not offer any evidence concerning the effect of that reduction. In the weeks prior to his resignation, Claimant received hours based on Employer's shifting needs. Specifically, Claimant worked nineteen, twenty-seven, and thirty-four hours a week in the three weeks leading up to his resignation. (C.R., Item No. 12 at 7.) These varied hours reflect that Claimant was given what work was available during a temporary lag in business. In fact, the employee hired to replace Claimant had nearly full time hours shortly after Claimant's departure. (Id.)
Further, Claimant failed to establish that he had no reasonable alternative but to resign. Although Claimant's hours were reduced, the Board specifically found that "claimant filed for partial unemployment compensation benefits for one week." (C.R., Item No. 16.) This demonstrates Claimant's awareness of partial unemployment compensation benefits as an alternative to resignation. Had Claimant continued to file for partial benefits, he could have remained employed during this period of lighter work. Thus, the Board did not err in concluding that Claimant resigned without cause of a necessitous and compelling nature.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 30th day of April, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge