Fosterbrook Medical Associates v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fosterbrook Medical Associates, Petitioner : : : v. : : Unemployment Compensation Board of : Review, : Respondent : BEFORE: No. 1879 C.D. 2007 Submitted: April 18, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: June 4, 2008 Fosterbrook Medical Associates (Employer) petitions for review of the order of the Unemployment Compensation Board of Review (Board), which denied Employer s request for reconsideration of the Board s decision which reversed the referee s decision and determined that Holly S. Eakin (Claimant) was eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she had a necessitous and compelling cause for voluntarily leaving her employment.1 We affirm the Board. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that an employee shall be ineligible for compensation for any week: (b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in employment as defined in this act ¦. (Footnote continued on next page ¦) The Unemployment Compensation Service Center (Service Center) denied Claimant s application for unemployment compensation benefits. Claimant filed a timely appeal and at the referee s hearing, Claimant testified on her own behalf and Paul B. Kirsch and Kimmy Borkowski testified on behalf of Employer. The referee affirmed the Service Center and denied benefits. Claimant appealed to the Board. The facts as found by the Board are as follows: 1. The claimant was last employed as a full-time office manager by Fosterbrook Medical Associates at a final rate of $13.00 per hour. Her last day of work was February 23, 2007. 2. At some point the claimant received a certified letter that she signed for and placed on the doctor s desk where she regularly put his mail. 3. On February 21, 2007, the doctor began yelling loudly at the claimant, accusing her of not giving him the letter which resulted in a warrant being issued for him. 4. The doctor told the claimant to get out of his office before he does something he regrets. 5. On February 23, 2007, during her work hours, the claimant left the worksite and told a coworker she was not sure if she was coming back. 6. The claimant voluntarily quit her employment because she could not handle being yelled at by the doctor if she messed up. Board s Decision, August 17, 2007, Findings of Fact Nos. 1-6, at 1. The Board determined that: (continued ¦) 2 Here, the claimant credibly testified that on February 21, 2007, the doctor began yelling loudly at her, making unjust accusations, and threatening her to get out of his office before he does something he will regret. The Board finds that the doctor s actions created a hostile work environment. Additionally, because the doctor was the employer and there is no supervisor above him, there was no one for the claimant to turn to for help and trying to speak to the doctor would be pointless. Accordingly, the Board concludes that the claimant had a necessitous and compelling reason to quit her employment. Board s Decision, at 2. The Board issued an order reversing the referee and granting Claimant benefits. Employer requested reconsideration from the Board and asked to present new evidence in the matter. The Board denied Employer s request for reconsideration. Employer now petitions our court for review.2 Employer asks our court to determine [w]hether Eakin s willful misconduct justified the verbal reprimands she received and negated any basis which she claims amounted to a necessitous and compelling reason for a voluntary quit and [w]hether new evidence not available at the time of the original hearing in this matter on May 10, 2007, justifies a remand for further hearing on the issue of Eakin s willful misconduct. Employer s Brief at 6. Claimant, however, argues that Employer did not preserve any issues for our Court s review and, therefore, Employer s petition should be dismissed. Employer, in its petition for review, asserts the following as cause for the reversal of the Board decision: 2 Our review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed and whether necessary findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987). 3 (4) The Order of the Unemployment Compensation Board of Review should be reversed because of the following reason(s): (a) Based on the record created before the hearing officer, Claimant Eakin clearly committed misconduct by failing to accurately and diligently undertake her job duties as assigned. Claimant Eakin s nonperformance of her assigned job duties created substantial hardship for the Petitioner/Employer, and the record establishes her misconduct was either grossly negligent or willful misconduct. Petitioner/Employer has new evidence to supplement the underlying record. Petitioner/Employer contends there is likely to be criminal charges coming about as the result of the ongoing investigation into Claimant Eakin s misconduct. (5) WHEREFORE, Petitioner prays that this Court review and set aside the Order of the Unemployment Compensation Board and grant relief as may be just and proper. Employer s Petition for Review, October 4, 2007, at 1-2. In its petition for review, Employer alleges only misconduct on the part of Claimant. An employee is found ineligible for compensation when he is discharged or suspended from work due to willful misconduct, under Section 402(e) of the Law.3 The Board did not find that Claimant had been discharged or suspended from work. The Board made its decision in this matter based upon Section 402(b) of the Law, stating that Claimant had voluntarily quit. We must 3 Section 402(e) of the Law, 43 P.S. §802(e), provides that an employee is ineligible for compensation for any week: (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is employment as defined in this act ¦. 4 agree with the Board that Employer failed to raise a challenge to the issues ruled upon by the Board under Section 402(b) of the Law in its petition for review to this court. Thus, the reason for Claimant s separation is not properly before our court. [W]here a Claimant fails to include an issue in his petition for review, but addresses the issue in his brief, this court has declined to consider the issue, since it was not raised in the stated objections in the petition for review, nor fairly comprised therein in accordance with Pa. R.A.P. 1513(a). Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164 (Pa. Cmwlth. 1991). As Employer failed to challenge any of the Board s findings or conclusions relative to the voluntary quit, Employer has waived these issues on appeal. Department of Education v. Unemployment Compensation Board of Review, 890 A.2d 1232 (Pa. Cmwlth. 2006). Employer did, however, preserve its request to supplement the record. The Employer alleges in its petition for review that it has new evidence to supplement the underlying record in order to show Claimant Eakin s misconduct. Employer s Petition for Review at 2. The Board denied Employer s request for reconsideration. The grant or denial of reconsideration before the Board is controlled by 34 Pa. Code § 101.111. This section states as follows: (a) Within 15 days after the issuance of the decision of the Board, as may be determined by the provisions of § 101.102 (relating to form and filing of application for further appeal from decision of referee), any aggrieved party may request the Board to reconsider its decision and if allowed, to grant further the opportunity to do the following: (1) Offer additional evidence at another hearing. (2) Submit written or oral argument. (3) Request the Board to reconsider the previously established record of evidence. 5 (b) The requests will be granted only for good cause in the interest of justice without prejudice to any party ¦. The Board reviewed the Employer s request for reconsideration and the record in the proceedings and determined that its decision reversing the referee stands as final. Board s Decision, September 14, 2007, at 1. A review of the record reveals that Employer did not establish good cause and that the Board s decision is supported by substantial evidence. To the extent that Employer requests that this court take additional evidence, our court has previously held that items that are not part of the record below, may not become part of the record on appeal. Hempfling v. Unemployment Compensation Board of Review, 850 A.2d 773, 777 (Pa. Cmwlth. 2004). Also, the Board made its decision under Section 402(b) of the Law, not Section 402(e) of the Law. Thus, any proof of Claimant s misconduct would be irrelevant, as the Board determined that Claimant had voluntarily quit, and had not been discharged by Employer. Additionally, if we were to address the merits of Employer s case, we would have to uphold the order of the Board, and find that Claimant did demonstrate a necessitous and compelling cause for her voluntary termination of employment, as required by Section 402(b) of the Law. Claimant admits that she voluntarily left her employment. Once it is determined that a claimant voluntarily terminated her employment, a claimant bears the burden of proving a necessitous and compelling reason for voluntarily terminating the employment relationship. Mutual Pharmaceutical Company v. Unemployment Compensation Board of Review, 654 A.2d 37, 39 (Pa. Cmwlth. 1994). Claimant testified as to the reason that she quit her employment: 6 C There was a certified letter that was, I had signed for, I placed it on the doctor s desk where I put his mail. Ms. Detrey called to speak with the doctor and then he spoke with Judge Ireland and when he got off the phone with Judge Ireland the doctor started yelling, you know, stating that he didn t get the letter. There was a warrant out for his arrest. Am I trying to put him in jail? Just yelling pretty loud. He told me to get out of his office, to leave before he does something that he regrets. And then when I left the nurse had told me that they had to move a lady out of the stress center because she had heard him yelling. Notes of Testimony, May 10, 2007, at 4, 6. The Board found that Claimant quit her employment because she was subject to abusive conduct and unjust accusations. The Board concluded that Claimant had a necessitous and compelling reason for voluntarily quitting her employment and that she had no supervisor to turn to for help, in order to preserve her employment. All credibility determinations are made by the Board. The weight given the evidence is within the discretion of the factfinder. Fitzpatrick v. Unemployment Compensation Board of Review, 616 A.2d 110 (Pa. Cmwlth. 1992). The Board is the ultimate factfinder. Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). The Board s determination that Claimant had a necessitous and compelling reason to quit her employment is supported by substantial evidence. Accordingly, we must affirm the decision of the Board. JIM FLAHERTY, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fosterbrook Medical Associates, Petitioner : : : v. : : Unemployment Compensation Board of : Review, : Respondent : No. 1879 C.D. 2007 ORDER AND NOW, this 4th day of June, 2008 the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge

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