Opinion
No. 55 C.D. 2012
08-14-2012
Vanguard Dealer Services, LLC, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Vanguard Dealer Services, LLC (Employer) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's determination that Donald Mimm (Claimant) was not ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a business development manager by Vanguard Dealer Services from January 24, 2011 and his last day of work there was June 6, 2011.
2. Upon accepting this employment, the claimant signed a no-compete agreement indicating he could not, during the course of his employment with employer and/or for two years following termination of his employment with
the employer, engage or participate in any employment or activity competitive with employer.
3. As a business development manager, the claimant was responsible for going to assigned client dealerships and training the finance and insurance managers on how to conduct and sell certain insurances and warranties.
4. On May 31, 2011, the claimant was working with the employer's client, Martin Honda, on finding a candidate for a vacant finance and insurance manager position.
5. The general manager of Martin Honda offered the position to the claimant.
6. On June 2, 2011, the claimant spoke with the vice president of sales and marketing regarding the job offer.
7. The claimant understood that the vice president of sales and marketing was supportive of his accepting the offer of other employment.
8. On June 2, 2011, the claimant accepted the position of finance and insurance manager with Martin Honda at the rate of $1,200 base monthly salary, to begin June 13, 2011.
9. On June 3, 2011, the claimant informed his immediate supervisor that he had accepted an offer of other employment.
10. Subsequently, on June 3, 2011, the claimant received a call from the president who informed the claimant that he could not work for the employer's client per the terms of his no-compete agreement.
11. The president threatened to sue the claimant if he accepted the offer of other employment with Martin Honda.
12. On June 3, 2011, the claimant called the general manager of Martin Honda and indicated that he could be sued per the terms of a no-compete agreement he signed.
13. The general manager of Martin Honda indicated that he still wanted the claimant to begin working for him on June 13, 2011.Board Opinion, December 16, 2011, (Opinion), Findings of Fact Nos. 1-19 at 1-3; Reproduced Record (R.R.) at 152a-153a.
14. On June 5, 2011, the claimant submitted his resignation notice to the employer to become effective June 12, 2011, to accept a firm offer of employment with Martin Honda on June 13, 2011.
15. On June 6, 2011, the president contacted the claimant and indicated that he accepted the claimant's resignation effective immediately and his services were no longer needed.
16. Thereafter, on June 6, 2011, the claimant called the general manager of Martin Honda and indicated that he was available to start employment earlier than June 13 because the employer had accepted his resignation notice immediately.
17. On June 6, 2011, the general manager of Martin Honda rescinded the offer of employment to claimant.
18. The claimant understood that the general manager of Martin Honda was worried about a law suit from the employer.
19. The claimant did not attempt to return to work with the employer on June 6 because he was told that his services were no longer needed when the employer accepted his resignation on that date.
The Reproduced Record does not contain page two of the Opinion.
The Board determined:
The claimant credibly established that he voluntarily quit his employment to accept a firm offer of employment as a finance and insurance manager at the rate of $1,200 base salary monthly to begin June 13, 2011. Although the firm offer of employment was rescinded on June 6, prior to the claimant's intended resignation on June 13, the claimant was not obligated to rescind his resignation with the employer because the employer had already accepted his resignation effective June 6 and told the claimant that his services were no longer needed. Irrespective of whether or not the claimant was in violation of a no-compete agreement he signed with the employer, the claimant credibly established that he informed the general manager of Martin Honda of the no-compete agreement on June 3 and was still given a firm offer of other employment to begin June 13. The claimant met his burden of establishing necessitous and compelling reasons for voluntarily quitting his employment. Benefits are granted to the claimant under Section 402(b) of the Law.Opinion at 3; R.R. at 153a.
Employer contends that the Board erred when it determined that Claimant met his burden of establishing a necessitous and compelling reason for quitting his job with Employer when he procured a subsequent job offer through misrepresentation, he failed to provide evidence that would justify his voluntary departure from Employer when he was warned that Employer would enforce the non-compete agreement, and Claimant engaged in willful misconduct when he disregarded Employer's interests by accepting a job in violation of the non-compete agreement.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Initially, Employer contends that Claimant did not receive a firm offer of employment from Martin Honda (Martin) because both Claimant and Martin knew that Employer would enforce the non-compete agreement.
An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Where an employee resigns, leaves, or quits without action by the employer, the action amounts to a voluntary termination. Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 561 (Pa. Cmwlth. 1979). The receipt and acceptance of a firm offer of employment constitutes a necessitous and compelling reason for the termination of employment. The offer must be definite. The claimant must also act prudently with respect to his employer. Township of North Huntingdon v. Unemployment Compensation Board of Review, 450 A.2d 768 (Pa. Cmwlth. 1982).
At hearing before the referee, Claimant testified that he was offered the job of finance and insurance manager at Martin by Mr. Hommy (Hommy), Martin's general manager. Notes of Testimony, September 19, 2011, (N.T.) at 7; R.R. at 100a. The next day Claimant checked with Neal Brennan, vice president of sales and marketing for Employer, who informed him "Don, I got to tell you, dude, he said, that is just too good of a job to turn down. He says we can't even come close to this." N.T. at 8; R.R. at 101a. Claimant then accepted the offer on June 2, 2011. N.T. at 9; R.R. at 102a. After he accepted the offer, Claimant received a telephone call from Jim Pally, president of Employer, who told him that Employer would enforce the non-compete agreement. Claimant was surprised because he did not believe that it applied to working for a customer of Employer, only a competitor. N.T. at 9; R.R. at 102a. Claimant notified Hommy to inform him of the problem with the non-compete agreement. According to Claimant, Hommy replied, "Don, that doesn't matter, we still want you to come work for us." N.T. at 10; R.R. at 102a. Claimant submitted his resignation on June 5, 2011. He testified that he resigned because he had a job offer and had accepted a position with Martin. N.T. at 11; R.R. at 104a.
It is unclear from the record whether "Hommy" is a first or last name.
The Board specifically found Claimant credible. Based on Claimant's testimony, the Board's determination that even after Martin was aware of the non-compete agreement, Martin still made a job offer to Claimant which he accepted. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Employer urges this Court to accept its own version of the facts instead of the facts found by the Board, the factfinder. This Court is not authorized to do that.
In Brennan v. Unemployment Compensation Board of Review, 504 A.2d 432 (Pa. Cmwlth. 1986), this Court addressed a similar situation. Alice B. Brennan (Brennan) was employed as a licensed practical nurse in Bristol, Pennsylvania with Lower Bucks Hospital. Brennan and her husband had purchased a home in Western Pennsylvania two years earlier. In March 1984, Brennan applied for a part-time position as a licensed practical nurse in Titusville, Pennsylvania at Titusville Hospital. Brennan was offered the position on June 4, 1984, and her starting date was established as July 16, 1984. On June 27, 1984, Brennan terminated her employment with Lower Bucks Hospital. On July 6, 1984, Brennan was informed that the position at Titusville Hospital was no longer available because of a low occupancy rate at the hospital. Brennan, 504 A.2d at 432-433.
Brennan applied for benefits. The Board denied benefits on the basis that Brennan did not have a necessitous and compelling reason for quitting because her new position paid less and was only part-time. Brennan, 504 A.2d at 433.
This Court reversed:
'The receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature.'. . . The referee clearly found that a firm offer had been made. Certainly, Claimant [Brennan] could not perform the two jobs at two ends of the state simultaneously. Hence, she had necessitous and compelling reasons for quitting. Once the referee determined that a valid offer had been made and accepted he erred in going further and considering Claimant's [Brennan] reasons for accepting the other job and in considering conditions of the employment in Titusville. The relevant consideration was the reasons for the quit, i.e., the new job . . . not the reason for the desire to transfer. This reason is itself necessitous and compelling as a matter of law. (Citation and footnote omitted).Brennan, 504 A.2d at 433.
Similarly, here, Claimant received a firm offer of the position of finance and insurance manager at Martin. He accepted the offer. As in Brennan, Claimant had a necessitous and compelling reason for quitting his job with Employer.
Employer also argues that the job offer was conditional because it was based on a misrepresentation that the non-compete agreement did not apply to Claimant taking a job with Martin. Once again, the Board found that Claimant informed Martin that Employer planned to enforce the non-compete agreement and that Martin still offered him the position. There was no misrepresentation.
Employer next contends that Claimant made no attempt to withdraw his resignation once Martin rescinded the offer to him.
In Breslow v. Unemployment Compensation Board of Review, 517 A.2d 590 (Pa. Cmwlth. 1986), this Court held that once a claimant knew that a job offer was withdrawn, the claimant had a duty to act with common sense and take minimal steps to preserve her original employment.
However, in Porter v. Unemployment Compensation Board of Review, 434 A.2d 245 (Pa. Cmwlth. 1981), this Court determined that a claimant cannot revoke a resignation, where the voluntary termination became effective prior to the attempt to revoke the resignation.
Here, Claimant submitted his resignation to Employer on June 5, 2011, with the resignation to become effective June 12, 2011. On June 6, 2011, Employer informed Claimant that his resignation was effective immediately. Later, on June 6, 2011, Martin rescinded its offer to Claimant. Claimant could not revoke his resignation because it was already in effect when he learned he no longer had a job waiting for him at Martin.
Employer also contends that Claimant committed willful misconduct. In unemployment compensation proceedings, the term "willful misconduct" applies in situations where an employee is terminated from his employment by his employer. Here, it is undisputed that Claimant voluntarily quit. Further, Employer never raised the issue of willful misconduct before the Board. See Pa. R.A.P. 1551 ("No question shall be heard or considered by the court which was not raised before the government unit."). --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of August, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge