Opinion
No. 1661 C.D. 2012
04-24-2013
Kymbrilee Snipes, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Kymbrilee Snipes (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review. The Board affirmed a decision of the Referee, which determined Claimant to be ineligible for benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), relating to voluntarily leaving employment without cause of a necessitous and compelling nature. 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).
Claimant applied for unemployment compensation benefits after she retired from her employment with the United States Department of Agriculture (Employer). The Allentown UC Service Center (Service Center) found Claimant ineligible for benefits because she failed to establish necessitous and compelling reasons for leaving her job. (Certified Record (C.R.), Item No. 4.)
Claimant appealed the Service Center's determination, and a Referee conducted a hearing. Employer did not appear at the hearing, and Claimant provided the following testimony regarding her reason for retiring:
R Okay. Why did you retire?
C I retired because of [sic] early-out option was given.
R They offered you an incentive - a financial incentive to retire?
. . .
C No financial incentive was given at that time. It was just an early-out option.
R What does that mean, an early-out option?
C It means that you can leave with a certain - at a certain age with - age of 50 with at least 20 years' service. And get your benefits.
R Okay.
C And a small pension.
R Was there any reason why you chose that day, October 30th, to retire?
C It was - that was the date that was given.
R Okay. Is there anything else you'd like to add? Any other reasons that you stopped working on October 30th?
C No.
R Okay. There if there's nothing else I'll - now one of your letters you talked about health reasons for leaving, did that have anything to do with your reasons for stopping work on October 30th?(C.R., Item No. 10 at 3-4.) Based upon Claimant's testimony, the Referee determined Claimant ineligible for benefits pursuant to Section 402(b) of the Law.
C No. It was purely - it was early-out option retirement is why I left.
R Okay. Just making sure.
C Yes.
Claimant appealed to the Board, and the Board affirmed. In doing so, the Board issued the following findings of fact:
1. The claimant was last employed as a full-time biological lab technician by the US Department of Agriculture from June 4, 1989, at a final rate of approximately $54,000 per year. Her last day of work was October 30, 2011.(C.R., Item No. 13.) The Board reasoned as follows:
2. The claimant voluntarily quit to accept an early-out retirement option.
3. The claimant could retire if she was over 50 years of age with twenty years of service, and receive her pension.
4. The claimant did not quit due to medical reasons.
On appeal, the claimant asserts that she did not quit her employment. However, there is no evidence that the employer initiated the separation or forced the claimant to accept the early retirement option. The claimant made the personal choice to accept the option. The claimant's separation from employment was indeed voluntary.
Section 402(b) of the Law provides that a claimant shall be ineligible for compensation for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Since the claimant voluntarily left her employment, the burden rests upon her to show cause of a necessitous and compelling nature for so doing.(Id.)
The Court has held that retiring to accept a retirement incentive without proof that the claimant's job was in jeopardy is not necessitous and compelling reasons to quit. Here, the claimant offered no evidence that her job was in jeopardy. Rather, she quit so that she may take advantage of an "early out" option, i.e., she was able to receive her pension earlier than normal. Consequently, the claimant has not proven that she had a necessitous and compelling reason to quit.
On appeal to this Court, Claimant raises several issues, but she fails to preserve them for review. Pennsylvania Rules of Appellate Procedure 2111-2119 relate to the contents of briefs before this Court. Pa. R.A.P. 2111 requires that a petitioner's brief include, among other components, a statement of questions involved and an argument. Pursuant to Pa. R.A.P. 2116, the statement of questions involved "must state concisely the issues to be resolved," and the rule specifically instructs the parties that "[n]o question will be considered unless it is stated in the statement of questions involved or fairly suggested thereby." Thus, where issues are raised in the statement of questions involved, but not addressed in the argument section of the brief, courts find waiver. See Harvilla v. Delcamp, 521 Pa. 21, 24 n.1, 555 A.2d 763, 764 n.1 (1989). Furthermore, Pa. R.A.P. 2119(a) requires that the argument section of the brief "be divided into as many parts as there are questions to be argued," and shall include "such discussion and citation of authorities as are deemed pertinent." A party's failure to develop an issue in the argument section of her brief constitutes waiver of the issue. See City of Philadelphia v. Berman, 863 A.2d 156, 161 (Pa. Cmwlth. 2004).
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 statement of questions involved provides as follows:
1. I called the Commonwealth Court exactly 39 days after the Unemployment Board of Review was suppose[d] to submit a copy of the original record to the court. I was told that the record was not received at that time. Why did the Unemployment Board not send the original record within the allotted 40 day span granted by the Commonwealth Court of Pennsylvania? Moreover, the 40 day span was granted after September 6, 2012 (Notice of Filing Petition for Review - Agency).(Petitioner's brief at 6.)
2. Why did my former employer (USDA - ERRC) not find it necessary to attend a legal and required hearing on May 18, 2012 in Norristown, PA?
3. I was not questioned at all, in regards to the "Findings of Fact" used (to support the claims of my former employer) in the May 18, 2012 hearing, why were these facts verified as a basis for the referee's decision/order?
4. Why did the USDA not supply me with a copy of the Standard Form 8? This form is suppose[d] to be given to each retiree in order to know and understand boundaries surrounding ones unemployment amount, if filing for unemployment becomes necessary at any point in time.
5. Why did the Unemployment Compensation Board not notify me of the appeal hearing scheduled in Harrisburg, PA? I received a letter of denial thereafter.
Here, the issues set forth in Claimant's statement of the questions involved do not correspond with any "argument" section of her brief and, thus, fail to comply with Rule 2119 of the Pennsylvania Rules of Appellate Procedure. Moreover, Claimant failed to cite legal authority or otherwise develop arguments in support of any "issues" in the argument section of her brief. As a result of Claimant's failure to comply with Rules 2116 and 2119, the issues are waived.
Even if we were to conclude that Claimant had not waived the issues, Claimant's appeal still fails. A liberal reading of Claimant's brief suggests that she takes issues with the Board's finding that she "voluntarily quit to accept an early-out retirement option." (C.R., Item No. 13, Finding of Fact no. 2.) Claimant contends that she did not voluntarily quit her employment, but rather she retired. This appears to be more of a disagreement with semantics than substance. Claimant appears to be under the misapprehension that, because, in her view, she retired and did not quit, the act of retiring alone somehow renders her eligible for unemployment compensation benefits. Such is not the law.
"Where an employee resigns, leaves, or quits without action by the employer, the action amounts to a voluntary termination." Davila v. Unemployment Comp. Bd. of Review, 926 A.2d 1287, 1289 (Pa. Cmwlth. 2007) (emphasis added). A claimant may be eligible for unemployment compensation benefits when voluntarily terminating employment by accepting an early retirement option, provided that the claimant establishes necessitous and compelling reasons for his resignation (i.e., retirement). See Philadelphia Housing Auth. v. Unemployment Comp. Bd. of Review, 29 A.3d 99, 101-05 (Pa. Cmwlth. 2011) (holding that claimant not eligible for benefits when he voluntarily retired because mere speculation that pension benefits would be reduced due to ongoing collective bargaining negotiations did not constitute necessitous and compelling reasons for retirement); see also Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95, 97-98 (Pa. Cmwlth. 2011) (holding that claimant not eligible for benefits when he voluntarily retired because mere speculation that he would lose portion of health benefits due to ongoing collective bargaining negotiations did not constitute necessitous and compelling reasons for retirement); see also Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1045-46 (Pa. Cmwlth. 2002) (holding that claimant who retired due to health reasons not eligible for unemployment compensation benefits because she failed to prove necessitous and compelling reasons for leaving job when employer offered reasonable accommodation). An exception exists to the requirement that a claimant who accepts an early retirement must establish necessary and compelling reasons where the claimant accepts the early retirement incentive under a voluntary layoff provision as part of employer-initiated workforce reduction. Diehl v. Unemployment Comp. Bd. of Review (ESAB Group, Inc.), ___ Pa. ___, ___, 57 A.3d 1209, 1218-22 (2012). Claimant, however, established none of these bases for eligibility. Rather, Claimant's testimony reveals that she exercised an early retirement option because she could retire early based upon her age and years of service. Those circumstances alone do render an individual eligible for unemployment compensation benefits.
"To receive unemployment benefits following voluntary retirement, a claimant must establish that he acted with ordinary common sense in retiring and made a reasonable effort to preserve his employment." Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95, 97 (Pa. Cmwlth. 2011). As we explained in Philadelphia Housing Authority,
an employee who claims to have left work for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such 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 his employment. The circumstances producing pressure to leave must be both real and substantial.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 24th day of April, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Philadelphia Housing Auth. v. Unemployment Comp. Bd. of Review, 29 A.3d 99, 101 (Pa. Cmwlth. 2011) (citations omitted).