Opinion
No. 1582 C.D. 2011
04-05-2012
Robert Russell, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Robert Russell (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for benefits for the reason that Claimant had voluntarily terminated his employment and, thus, was ineligible under Section 402(b) of the Unemployment Compensation Law (Law). In doing so, the Board reversed the Referee. Claimant contends that the record shows that he was laid off. Discerning no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It provides that an employee is 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...." 43 P.S. § 802(b).
At the time of his separation from employment, Claimant worked as a snow plow operator for Grampian Borough (Employer) on an "as needed" basis. Notes of Testimony, April 6, 2011, at 6 (N.T. ___). On December 5, 2010, he filed a claim for benefits contending that he had been laid off. Employer responded that Claimant had retired. The UC Service Center denied Claimant's application for the stated reason that he had voluntarily quit his employment.
Claimant appealed. At the hearing before the Referee, Claimant testified about his 30-year employment with Employer.
Claimant did construction work during the summer months and operated a snowplow in the winter months. He worked "regular" hours during the summer, but on an "as needed" basis in the winter. N.T. 6-7. Three years before the hearing, when Claimant reached the age of 62, his medical condition required him to quit the summer employment. However, he continued to work for Employer as a snowplow operator.
In 2010, Employer hired several other people to work on snowplows. Claimant testified that Employer "got the word that I was going to retire from there, which I didn't." N.T. 8. At a meeting on April 23, 2010, the Borough President explained that the borough could not afford to pay all the new operators. Claimant, who was on social security, said he would step down and let the others take his place because they had children to support and he did not.
After the meeting, Claimant spoke with the Borough President, and she agreed that his separation was a layoff. The following winter he was called back to work on three occasions. The Borough President called him twice, and his son, an assistant street commissioner, called him once. He filled in for regular employees who were absent. Claimant asserted that he did not quit.
Robert Russell, Claimant's son, testified that the Borough President called his father to work on December 7 and 8, 2010. His father checked the roads, but he neither requested nor received any compensation for this service. When Russell was asked on cross-examination whether his father actually did any work for Employer on those two days, Russell replied "[n]o." N.T. 14. However, Russell testified that his father did do work for Employer on another occasion. On February 2, 2011, Russell personally called his father to assist with cleaning roads, believing that he had the authority to do this.
Barbara McCracken, Borough President, testified. She stated that on April 23, 2010, Claimant informed her that he was having health issues. "[H]e said that I could let him go if that would be okay." N.T. 15. McCracken testified that Claimant did not use the word layoff, and she believed he was quitting. She had work available to him when he quit. McCracken stated that Claimant's last day of work was April 21, 2010. She agreed that Claimant did work for one day in February 2011, but he had not been authorized to work that day because Claimant's son did not have the authority to employ his father for this task. McCracken claimed that only the street commissioner had the authority to authorize the work done by Claimant, and the street commissioner did not do so. In fact, the street commissioner refused to sign Claimant's pay sheet.
McCracken was not asked about the two days in December she was purported to have called Claimant in to work. However, she did state that the last day Claimant worked as a "current employee" was April 21, 2010. C.R. 16.
The Referee found, as fact, that Claimant was employed as a part-time snowplow driver. In spite of Claimant's separation from employment in April 2010, he continued to work several times after that on an "as needed" basis. For this reason, the Referee concluded that Claimant's work had continued with Employer and, thus, he had merely been laid off in April 2010. The Referee found Claimant eligible for benefits.
Employer appealed to the Board. The Board found that although Claimant had asked to be laid off, this did not happen. Instead, Claimant voluntarily resigned. Because he voluntarily resigned, he had the burden to establish cause of a necessitous and compelling nature. The Board found Claimant did not meet this burden, noting that his testimony was disjointed. It credited Employer's testimony. The Board also found that after April 2010, Claimant "did not work and was not authorized to work for [Employer]." Board Adjudication, Finding of Fact No. 8. The Board reversed the Referee's decision and denied benefits.
Claimant petitioned for this Court's review. He argues that the record did not show that he quit his job, and the Board erred. The Board counters that it is the finder of fact and the record contains substantial evidence to support its finding that Claimant voluntarily quit.
Our review is limited to determining whether constitutional rights were violated, an error of law committed or whether the findings of fact are supported by substantial evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (Pa. Cmwlth. 2003). --------
Voluntarily quitting employment is a bar to the recovery of benefits unless the claimant establishes necessary and compelling reasons for quitting. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 47, 565 A.2d 127, 130 (Pa. Cmwlth. 1989). In determining whether a claimant has voluntarily quit his position, the Board makes the dispositive findings of fact and credibility determinations. Spence v. Unemployment Compensation Board of Review, 29 A.3d 117, 118 (Pa. Cmwlth. 2011). The Board's findings of fact are binding so long as they are supported by substantial evidence of record. Bartholomew v. Unemployment Compensation Board of Review, 406 A.2d 253, 258 (Pa. Cmwlth. 1979).
Here, the Board's findings are supported by substantial evidence. The Borough President testified that Claimant informed her he was quitting due to unspecified health reasons, that work was available to Claimant and that there had been no discussion of a layoff. The Board accepted her testimony and rejected Claimant's testimony. This was the Board's prerogative. The Board also accepted the Borough President's testimony that Claimant was not authorized to work after he quit on April 23, 2010.
Because the Claimant has not established error, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of April, 2012, the order of the Unemployment Compensation Board of Review dated July 11, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge