J. S. Schneider v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joy S. Schneider, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 11 C.D. 2008 Submitted: June 13, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 24, 2008 In this appeal, Joy S. Schneider (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming a referee s denial of benefits pursuant to Section 402(b) of the Unemployment Compensation Law (UC Law)1 (relating to voluntary quits). Claimant asserts the Board s decision is not supported by substantial evidence and the Board erred as a matter of law in denying benefits under Section 402(b) because the circumstances leading to her resignation indicated her employer, County Line Abstract, Inc. (Employer), intended to discharge her. For the reasons that follow, we affirm the Board. 1 §802(b). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. The Board found the following facts. Claimant worked for Employer as a title conveyor/funding person for six-and-a-half years. As of her last day of work in July 2007, Claimant earned a salary of $40,000 per year. Six to eight months prior to her last day, Claimant decided to quit, but Employer, through its president, Andrew Blau (President), convinced her to remain employed. Thereafter, Claimant was away from the office for a period of time due to illness. During that time, one of Employer s clients complained about Claimant and no longer wanted her working on its accounts. Because of Claimant s absence from work due to illness, President did not have an opportunity to tell Claimant about the client. After she returned, Claimant scheduled herself for a closing with the client. Rather than telling Claimant this client no longer wanted her working on its files, President, enroute to a meeting, told Claimant not to work on any files. Claimant asked what she should do about continuing her work. President told her to continue with her work until he thought of something else for her to do. Twenty minutes later, Claimant interrupted President s meeting, returned her keys to him and stated she quit. Later that day, Claimant called President and asked for her job back. Because Claimant decided to resign for the second time in six or eight months, President did not take Claimant back. Thereafter, Claimant applied for unemployment benefits. In its notice of determination, the local service center ruled Claimant ineligible under Section 402(b) on the basis she failed to show a necessitous and compelling reason for quitting. In voluntary quit cases, the service center noted, the burden is on the 2 claimant to show a necessitous and compelling reason for leaving the job and that he or she exhausted all alternatives prior to leaving employment. Claimant appealed, and a referee s hearing ensued. represented by her husband, and President testified. Claimant, The referee affirmed. Claimant appealed to the Board. In affirming, the Board reasoned: A claimant can establish necessitous and compelling reason for quitting employment by demonstrating that the quit was consistent with ordinary common sense and prudence under the pressure of circumstances that were real not imaginary, substantial not trifling, and reasonable not whimsical, and which would compel a reasonable person under the same circumstances to act in the same manner. Prior to quitting employment, a claimant must communicate the problem to the employer to allow the employer the opportunity to accommodate the claimant s problem. [Claimant] has not met this burden. [Claimant] made no attempt to resolve her concerns with [Employer] prior to her voluntary quit. Therefore, [Claimant] voluntarily quit her employment without cause of a necessitous and compelling nature. Bd. Op., 11/16/07, at 2-3. This appeal followed.2 2 We are limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). Substantial evidence is such relevant evidence that a reasonable mind might accept as sufficient to support the Board s findings. Gioia v. Unemployment Comp. Bd. of Review, 661 (Footnote continued on next page ¦) 3 I. Contentions Claimant contends the Board s decision is not supported by substantial evidence or in accord with applicable law. She asserts the circumstances leading to resignation, which included President s verbal abuse and failure to notify Claimant of client complaints against her, indicated a likelihood of certain discharge and thus provided necessitous and compelling reasons for a voluntary quit under Section 402(b). In addition, Claimant contends President s accusations of theft following her last day of work provide necessitous and compelling cause for leaving her employment.3 The Board counters its findings are supported by substantial evidence. It further asserts it properly concluded Claimant lacked necessitous and compelling cause to quit where she left because Employer did not bring a client complaint to her attention while she missed work due to illness. Moreover, the Board noted Claimant did not attempt to resolve her problems with Employer prior to quitting. (continued ¦) A.2d 34 (Pa. Cmwlth. 1995). Whether substantial evidence exists is determined by reviewing the entire record in the light most favorable to the party who prevailed before the Board, giving that party the benefit of all inferences reasonably and logically drawn from the evidence. Id. 3 On appeal here, Claimant also seeks other benefits in the nature of damages for defamation based on Employer s alleged accusations of theft against Claimant and her family. This request is improper inasmuch as it falls outside the Board s jurisdiction under the UC Law and thus outside our appellate jurisdiction, which is limited to reviewing the Board s decision for evidentiary support, errors of law or constitutional violations. See Hessou. Jurisdiction over defamation, a common law tort, lies with the appropriate common pleas court, not the Board. The defamation cases Claimant cites, Paul v. Lankenau Hospital, 543 A.2d 1148 (Pa. Super. 1988), aff d in part, rev d in part, 524 Pa. 90, 569 A.2d 346 (1990), and Agriss v. Roadway Express, Inc., 483 A.2d 456 (Pa. Super. 1984), involve appeals from common pleas courts, not Commonwealth administrative agencies with limited subject matter jurisdiction. 4 The Board also submits its findings here are conclusive on appeal because Claimant failed to specifically challenge any of them. II. Analysis 1. Substantial Evidence Claimant, in her Statement of Questions, raises the issue of [w]hether the referee s and the [Board s] findings of fact were supported by substantial evidence. See Claimant s Br. at 4. However, Claimant fails to further address this issue in either her Summary of Argument or Argument. Nevertheless, we discern the exact factual challenges Claimant asserts. In particular, Claimant s request for reconsideration from the Board explains her disagreement with Board Findings of Fact (F.F.) Nos. 2, 9, 11, 13 and 15, as well as her offers to further explain her position on other findings. Certified Record C.R. at Item 15. The findings which sparked the request for reconsideration are supported by substantial evidence. Specifically, the findings are supported by the testimony of President. Id. at Item 11 (Notes of Testimony N.T., 9/25/07 at 1720). Claimant presented conflicting evidence, but the Board rejected her version of some facts and accepted President s testimony. Such credibility determinations are exclusively for the Board as fact-finder, not for this Court on review. Accordingly, we reject the substantial evidence challenge. 2. Necessitous and Compelling Cause The issue of what constitutes a necessitous and compelling reason or good cause for a voluntary quit under Section 402(b) is a legal question subject 5 to appellate review. Craighead-Jenkins v. Unemployment Comp. Bd. of Review, 796 A.2d 1031 (Pa. Cmwlth. 2002). The employee bears the burden of proving necessitous and compelling reasons for quitting. Id. An employee who claims necessitous and compelling reasons for quitting must show 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 her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Further, [m]ere dissatisfaction with working conditions or resentment of supervisory criticism or a mere personality conflict absent an intolerable work atmosphere ¦ does not constitute necessitous and compelling reasons for a voluntary quit. Gioia v. Unemployment Comp. Bd. of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995). In order to constitute necessitous and compelling cause, a personality conflict with another employee must render working conditions intolerable. Id. In short, a claimant must establish she had no other real choice than to leave employment. Malloy v. Unemployment Comp. Bd. of Review, 523 A.2d 834 (Pa. Cmwlth. 1987). Here, Claimant asserts, over the last eight months of her employment, President would not advise her of any client complaints against her until weeks after Employer received them, with no mention of the clients names. Claimant asked President to inform her as soon as possible about future complaints in order for her to correct any errors or misunderstandings with the client. However, President did not do this. President also offended Claimant with his reply when 6 she asked him if she should continue working with Employer s clients. Claimant asserts President told her to continue working until he could think of a better alternative. Claimant maintains this remark was the straw that broke the camel s back. N.T. at 13; C.R. at Item 15. As a result, she decided to resign. Claimant asserts President s actions placed fear in her mind that she might lose her job and benefits and thus constituted necessitous and compelling cause for her resignation. In support, Claimant cites Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995) (where the employer laid off 115 employees and told the claimant he might be laid off if he did not accept an early retirement package, the claimant s fear of being laid off constituted necessitous and compelling reason to accept the early retirement offer and leave work). The Board responds that Claimant s dissatisfaction with her working conditions and, in particular, President s actions toward her prior to her resignation, do not constitute necessitous and compelling cause for Claimant s voluntary quit. The Board asserts President s behavior cannot be considered humiliating, condescending, excessive or rude. The Board further asserts President had a benign reason for not telling Claimant about the Wells Fargo complaint sooner. Claimant just returned to work from an illness and President was on his way to a meeting. We agree with the Board. As discussed above, mere dissatisfaction with working conditions, resentment of supervisory criticism, or a personality conflict that does not render the work atmosphere intolerable does not constitute necessitous and compelling cause for a voluntary quit. Gioia. 7 In addition, [c]ause of a necessitous and compelling nature is construed as cause which results from overpowering circumstances which produce both real and substantial pressure to terminate employment and which would compel a reasonable person to act in the same manner. Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 697 (Pa. Cmwlth. 1994) (citations omitted, emphasis added). Further, pursuant to Section 3 of the UC Law, 43 P.S. §752, a claimant can only receive benefits under the UC Law if she is unemployed through no fault of their own. Allegheny Valley Sch. v. Unemployment Comp. Bd. of Review, 548 Pa. 355, 697 A.2d 243 (1997). Here, Claimant s dissatisfaction with President s management style or her resentment of any supervisory criticism does not reflect an intolerable work atmosphere or provide a reasonable basis for Claimant s belief her employment was imminently threatened. Rather, President did not have an opportunity to inform Claimant about the Wells Fargo complaint prior to the meeting because she just returned to work following an illness. See F.F. No. 6. Consequently, unlike Philadelphia Parking Authority, where the claimant s fear of being laid off was real and substantial, Claimant s fear of imminent discharge here was not reasonable given the facts of record. More importantly and controlling in this case, Claimant did not make any attempt to resolve her differences or concerns with President prior to her voluntary quit. By making no attempt to reconcile her dissatisfaction with President, Claimant failed to take all reasonable steps to preserve her employment. Craighead-Jenkins; Petrick v. Unemployment Comp. Bd. of Review, 455 A.2d 757 (Pa. Cmwlth. 1983). 8 Alternatively, Claimant asserts President s accusations of theft following her resignation constitute a necessitous and compelling reason for a voluntary quit. At the time President made the accusations, Claimant maintains, President had not yet made a decision regarding her resignation and therefore, President s theft accusations constitutes good cause for a voluntary quit. We disagree. A claimant who states she quits and then walks off the job is no longer considered an employee. See Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855 (Pa. Cmwlth. 2004). Here, the Board found Claimant, on July 16, 2007, interrupted President s meeting, returned her keys to him and stated she quit. F.F. No. 13. From that point, Claimant was no longer an employee. Spadaro. The Board made no findings regarding the theft accusations, which allegedly occurred after Claimant s separation from employment. A fact-finder may determine that events which occur after employment ends are of limited persuasive value. Cf. Kaolin Mushroom Farms, Inc. v. Unemployment Comp. Bd. of Review, 669 A.2d 438 (Pa. Cmwlth. 1995) (events occurring after week at issue are irrelevant). Here, any theft accusations came after Claimant s announced resignation. As such, the fact-finder was not compelled to accept and evaluate the impact of the accusation. 9 For these reasons, we discern no error in the Board s decision.4 Accordingly, we affirm. ROBERT SIMPSON, Judge Judge Kelley dissents. 4 As a final note, we reject Claimant s argument that Somers v. Somers, 613 A.2d 1211 (Pa. Super. 1992) (an employer s obligation to perform contracts in good faith extends to employment contracts even if employee is at-will employee) is applicable here. In Somers, the Superior Court recognized a consulting contract, although terminable at will, required the employer to act in good faith in the performance of its duties under the consulting contract. In reversing the common pleas court s grant of preliminary objections, the Superior Court held the appellant (consulting employee) in Somers could bring a breach of contract action against his former employer in common pleas court. Claimant s reliance on Somers in this administrative agency appeal is misplaced. Somers is inapplicable to a claim for benefits under the UC Law, which does not grant the Board jurisdiction over an employee s breach of contract claims against an employer. Rather, the Board s jurisdiction is limited by statute to unemployment compensation matters. Jurisdiction over breach of contract claims lies with the appropriate common pleas court. See Somers. 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joy S. Schneider, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 11 C.D. 2008 ORDER AND NOW, this 24th day of July, 2008, the order of the Unemployment Compensation Board of Review is AFFIRMED. ROBERT SIMPSON, Judge

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