J. B. Davis v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA James B. Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : : : No. 1411 C.D. 2007 Submitted: November 9, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: January 24, 2008 James B. Davis (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee). In that decision, the Referee found that the Claimant did not have a necessitous and compelling reason to quit his job with Delavau, Inc. (Delavau). Claimant argues that an offer of employment from Eaton Corporation (Eaton) was a firm offer and that he therefore had cause of a necessitous and compelling nature to quit his job. Claimant also argues that the Referee erred in disregarding relevant evidence and in not apprising Claimant of his rights. On March 8, 2007, Claimant applied for Unemployment Compensation benefits. The Allentown Unemployment Compensation Service Center denied Claimant s application on the grounds that Claimant had voluntarily quit his job without necessitous and compelling cause. Claimant filed a Petition for Appeal and appeared at a hearing before the Referee on April 23, 2007. The Referee affirmed the Service Center s determination. Claimant appealed the Referee s decision to the Board, which affirmed the Referee. In denying Claimant s Petition for Appeal, the Board made the following findings of fact: 1. The claimant was last employed as a purchasing manager by Delavau Inc. from May of 2003 through December 29, 2006 at the final rate of pay of $67,000 per year. 2. On November 15, 2006 the claimant received an offer of employment [from] Eaton Corporation. 3. Eaton Corporation offered the claimant the full-time position of supply chain manager at the rate of pay of $92,00 [sic] per year and a start date of January 4, 2007. 4. Eaton Corporation[ s] offer of employment to the claimant was based partially upon an application for employment that the claimant completed for that company. 5. Upon receiving the offer of employment from Eaton Corporation the claimant informed Delavau Inc[.] of his intent to resign. 6. Upon being informed of his intent to resign, Delavau Inc[.] hired someone to fill the claimant s position. 7. Eaton Corporation subsequently discovered that the claimant ha[d] lied on his application for employment by indicating that he had a degree from St. Joseph s University when he did not have such a degree. 8. Therefore, Eaton Corporation rescinded his [sic] offer of employment to the claimant. 9. Because the claimant had been replaced, he could no longer return to his position with Delavau Inc. 2 10. At the time that the claimant quit his employment with Delavau Inc[.] he did not have a firm offer of employment with Eaton Corporation. (Board Decision, Findings of Fact (FOF) ¶¶ 1-10.) The Board determined that, because he did not have a firm offer of employment from Eaton, Claimant did not have a compelling and necessitous cause for voluntarily quitting his job with Delavau, rendering him ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).1 On appeal to this Court,2 Claimant argues that the Board erred in finding that he did not have a firm offer of employment with Eaton when he quit his job. Claimant argues that in making this finding, the Board ignored relevant evidence. Claimant also argues that the Referee erred by not allowing Claimant to enter into evidence checks that he had received from Eaton and by not telling him that he could request a continuance. Claimant first contends that Eaton s offer of employment constituted necessitous and compelling cause for him to quit his job with Delavau. Section 402(b) of the Law states that a claimant will not be eligible to receive unemployment compensation in a week where his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ¦. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). 2 In an appeal of a decision of the Board, this Court s review is limited to determining whether the necessary findings are supported by substantial evidence, whether the Board committed an error of law or whether constitutional rights have been violated. Artis v. Unemployment Compensation Board of Review, 699 A.2d 849, 851 (Pa. Cmwlth. 1997). 3 43 P.S. § 802(b). Whether a claimant had cause of a necessitous and compelling nature is a question of law which may be reviewed by this Court. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 358, 378 A.2d 829, 832 (1977). [T]he receipt and acceptance of a firm offer of employment constitutes cause of a necessitous and compelling nature to leave a job. Antonoff v. Unemployment Compensation Board of Review, 420 A.2d 800, 801 (Pa. Cmwlth. 1980). However, a conditional job offer does not constitute such necessitous and compelling cause. Breslow v. Unemployment Compensation Board of Review, 517 A.2d 590, 593 (Pa. Cmwlth. 1986). Eaton s offer to Claimant was a conditional offer, not a firm offer. Eaton s offer to Claimant clearly stated, [o]ur offer of employment is predicated upon your acceptance of the terms of the enclosed Employee Agreement and Ethical Business Conduct forms, successful completion of a drug test and a background search. (Letter from Debbie Schmucker, Eaton s Human Resources Manager, to Claimant (November 15, 2006), Service Center Ex. 17, R. Item No. 3.) Additionally, the application Claimant initially submitted to Eaton stated that providing false information could result in disqualification from employment. (Application for Employment at 2, (October 4, 2006), Service Center Ex. 15, R. Item No. 3.) Eaton s offer, by its terms, was conditioned on the premise that Claimant had not provided false information in his application and depended on Claimant passing a background check; therefore, it was a conditional offer, not a firm offer. 4 Claimant argues that, because Eaton still expressed interest in hiring him after discovering the falsehood on his application, its offer to him was a firm offer. This assertion is not supported by the record and reflects a misunderstanding of Claimant s burden of proof. A claimant bears the burden of showing that he had cause of a necessitous and compelling nature to leave a job. Antonoff, 420 A.2d at 801. Claimant argues that Eaton sent him checks for up to eight weeks after it rescinded its offer. Claimant argues that it was error for the Referee not to admit these checks into evidence and that these checks reflect[] confusion on Eaton s part as to Claimant s job status with them. (Claimant s Br. at 6.) Claimant s burden was not to show that Eaton was confused as to whether it intended to hire Claimant, but to show that when he resigned he had a firm offer of employment from Eaton. That Eaton may have sent Claimant checks for reasons that were unclear to the Claimant himself3 does not convert a job offer, which was 3 Regarding these checks, Claimant testified as follows in response to questioning by the Referee: R[eferee] And, you re saying you were notified by . . . C[laimant] Eaton long after, yeah, I had given the, my notice to Delavau and Delavau had hired somebody and, again I wasn t notified until the end of December. And, that, that, they will pay me. They were sending the check. I, I have a copy of the last check they sent, Eaton sent me as of February 28th of this year. R It might be the (inaudible) . . . C Yeah, that was. R Yeah, it could be your cumulative leave. There was, the annual leave of 16 days, or severance. C No, there were, there were, I got three checks in a row. R Yeah but it couldn t have been for working because you weren t working, right? C No. I hope not, no, I wasn t working. R All right. So, it had to be . . . C I don t, I don t . . . R It had to be something else. Not unless they chose to pay you for not working, I don t know. You have to talk to them; I don t know why they would continue to pay you if you don t work with them. They, maybe they can explain it. Anything else you want to state for the record? 5 conditional both on its face and in the context of Claimant s deception, into a firm offer of employment. Other than Claimant s testimony regarding the checks, there is no evidence in the record supporting Claimant s assertion that Eaton still intended to hire him. Claimant argues that the Board erred in finding that Eaton immediately rescinded its offer. The Board is the ultimate fact-finder in an unemployment compensation case. Fernacz v. Unemployment Compensation Board of Review, 545 A.2d 995, 997 (Pa. Cmwlth. 1988). The Board has the exclusive power to weigh conflicting evidence and testimony. Id. Even though one party may view the evidence differently than the Board, we will not overturn the Board s findings of fact so long as they are supported by substantial evidence on the record. Tapco v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Substantial evidence is such evidence as a reasonable mind might find adequate to support a conclusion. Id. at 1108. There is substantial evidence on the record to support the Board s finding that Eaton immediately rescinded its offer upon discovering Claimant s falsification. Eaton learned of the falsification on or after December 6, 2006, C No. (Referee Hr g Tr. at 5.) Claimant argues that the Referee erred in not accepting these checks into evidence. We disagree. From this testimony, it is not clear that Claimant was, in fact, attempting to offer the checks into evidence. Even if Claimant was attempting to admit the checks, they were not relevant. While every claimant is entitled to a fair hearing, a referee may exclude evidence which is not relevant. Miller v. Unemployment Compensation Board of Review, 636 A.2d 282, 283 (Pa. Cmwlth. 1993) (citing Creason v. Unemployment Compensation Board of Review, 554 A.2d 177 (Pa. Cmwlth. 1989)). Claimant himself admitted that the checks were not payment for work he did for Eaton. And, as we point out above, the checks are not relevant to Claimant s burden of proof. Therefore, even if the checks were offered as evidence, it was not error for the Referee to decline to admit them. 6 through a background search. (Reference Check (December 6, 2006), Service Center Ex. 21, R. Item No. 3.) The record does not reveal what communication took place between Eaton and Claimant immediately subsequent to Eaton s discovery but, on December 11, 2006, Claimant sent Eaton an e-mail acknowledging the falsification and withdrawing his application. (E-mail from Claimant to Schmucker (December 11, 2006), Service Center Ex. 24, R. Item No. 3.) On December 14, 2006, Eaton sent Claimant a letter rescinding the job offer. (Letter from Schmucker to Claimant (December 14, 2006), Service Center Ex. 23, R. Item No. 3; see also Referee Hr g Tr. at 4 (Claimant acknowledges receiving this letter sometime around December 19, 2006).) These communications are more than adequate for a reasonable mind to conclude that Eaton immediately rescinded its offer. Therefore, we will not overturn the Board s finding on this point. Additionally, regardless of precisely when Eaton rescinded its offer, such an offer, extended only because Claimant provided false information, cannot be interpreted as a firm offer. It is important to note that unemployment compensation is intended to aid persons who become unemployed through no fault of their own. Section 3 of the Law, 43 P.S. § 752 (emphasis added). This principle is not merely a perfunctory preface but is, rather, the keystone upon which the entire Act rests and the basis upon which the individual sections of the Act must be interpreted and construed. Kawa v. Unemployment Compensation Board of Review, 573 A.2d 252, 255 (Pa. Cmwlth. 1990) (affirming denial of benefits under Section 402(b) to claimant who quit due to lack of transportation to work as a result of his DUI conviction) (quoting Lybarger Unemployment Compensation Case, 418 Pa. 471, 476, 211 A.2d 463, 466 (1965)). 7 Here, Claimant s unemployment is wholly due to his own dishonesty. Claimant obtained an offer for a better-paying job by lying to his prospective employer. When the lie was discovered, the offer was withdrawn, and Claimant s current employer had already hired a replacement. However small or well-intentioned Claimant felt the lie was, we cannot say that a job offer predicated on such a lie was anything but conditional. To do so would be to subvert the purpose of the Law. Lastly, Claimant argues that at the hearing before the Referee, the Referee did not properly assist Claimant or advise him of his right to ask for a continuance to seek additional evidence or seek counsel, thereby depriving him of due process of law. Section 101.21 of chapter 34 of the Pennsylvania Administrative Code states that where a claimant appears pro se, the referee should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties. 34 Pa. Code § 101.21(a); see also Bennet v. Unemployment Compensation Board of Review, 445 A.2d 258 (Pa. Cmwlth. 1982) ( [t]he referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant . . . . (emphasis in original)). Claimant cites Coates v. Unemployment Compensation Board of Review, 676 A.2d 742 (Pa. Cmwlth. 1996), in support of his assertion that the Referee failed to properly assist him. In Coates, the claimant asked the referee if he could question the employer regarding why the employer had paid the claimant his accrued leave as a lump sum, rather than in biweekly payments, resulting in claimant s ineligibility. Although this issue was important to the case, the referee 8 replied that he would not wait for the employer to submit information, as the employer had indicated that it did not intend to participate in the hearing. Coates, 676 A.2d at 744 n.3. The referee told claimant that he could have subpoenaed the employer, but he did not tell the claimant that he could ask for a continuance during which he could arrange for employer s testimony. Id. Although the issue was not before this Court, we noted that a referee s responsibility under 34 Pa. Code § 101.21 is an important one, as it ensures that the facts of the case necessary for a decision may be adequately developed. Id. Here, Claimant notes that he was unrepresented and that neither Eaton nor Delavau was present at the hearing. Claimant does not explain, however, what information he would have sought to elicit from either employer had they been present, nor does the record indicate that Claimant exhibited a desire to question either employer. Claimant does not assert that he would have asked for a continuance if advised of his right to ask for one, nor does he describe what evidence he would have attempted to develop during such a continuance. The Referee did advise Claimant of his right to Counsel, as did the Notice of Hearing.4 (Referee Hr g Tr. at 1, Notice of Hearing (April 10, 2007), Referee s Ex. 1, R. Item 4 The Referee stated: I want to remind you that you have the right to come to this hearing to testify and offer any evidence that you may have regarding this matter. You have the right to have witnesses testify in your behalf. You have the right to ask any questions you may have about this hearing. And you have the right to be represented by counsel. (Referee Hr g Tr. at 1.) The Notice of Hearing also stated that Claimant had the right to counsel, the right to subpoena witnesses, and the right to request a continuance. (Notice of Hearing at 12.) 9 No. 8.) Claimant did not assert at the hearing or in his brief that he attempted to obtain legal counsel but did not have time to do so. It is clear from the record that Claimant was advised of his right to be represented by counsel. Claimant in no way indicated to the Referee that he needed or desired more time to prepare for the hearing; therefore, we cannot say that the Referee violated the requirements of 34 Pa. Code § 101.21 by not advising Claimant of his right to ask for a continuance. For these reasons we affirm the order of the Board. RENÃ E COHN JUBELIRER, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James B. Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : : : No. 1411 C.D. 2007 ORDER NOW, January 24, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. RENÃ E COHN JUBELIRER, Judge

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