Twin Kiss v. UCBR (Complete Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Twin Kiss, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 2073 C.D. 2007 Submitted: March 28, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION* BY JUDGE LEAVITT FILED: June 23, 2008 Twin Kiss (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) granting Tracey L. Evans (Claimant) unemployment compensation benefits. The Board affirmed the decision of the Referee that Employer failed to establish that Claimant had voluntarily resigned from her position. For the reasons that follow, we will reverse. Twin Kiss, a restaurant, is owned and operated by Vinud Bharat (Bharat). Claimant began working at the restaurant on May 5, 2007, as a part-time grill cook, earning $7.00 per hour. Claimant and Bharat s wife, Cheryl Bharat, * This opinion is filed in accordance with Section 256(b) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa. Code §67.29(b). agreed that Claimant would pay for her uniform by having its cost deducted from Claimant s wages over the period of three paychecks. At the end of Claimant s shift on Sunday, May 27, 2007, Employer requested Claimant to work the next day, which was Memorial Day. Claimant agreed, believing that her mother would be able to care for her children. When Claimant later learned that her mother would not be able to care for her children, Claimant notified Employer that she could not work on Memorial Day. On Tuesday, May 29, 2007, Claimant telephoned Vinhat Bharat to request her work schedule. Bharat told Claimant that business was slow due to construction and that Claimant would not need to work until the weekend. Bharat also stated that he would call her the evening of May 31, 2007, with her work schedule. Finally, Bharat told Claimant that she should come in and pick up her paycheck. According to Claimant, Bharat raised his voice inappropriately in the course of their phone conversation. Upset about the phone conversation, Claimant called the Department of Labor and Industry to register a complaint about Bharat, and her call was routed to the Lancaster Unemployment Compensation Service Center (UC Service Center). Claimant did not inform the UC Service Center that she was discharged or terminated; to the contrary, she stated that Employer was going to call her about her upcoming work schedule. However, after talking with the UC Service Center representative, Claimant decided to file a claim for unemployment benefits. As a result, the UC Service Center opened a claim for Claimant that stated that she had been discharged for absenteeism. 2 Following her conversation with the UC Service Center representative, Claimant picked up her paycheck from Employer. From that paycheck, Employer had deducted the full amount of Claimant s uniform, contrary to her agreement with Bharat s wife. Bharat again stated that he would call Claimant on the evening of May 31, 2007, with Claimant s weekend work schedule. On May 31, 2007, Employer received notice from the UC Service Center that Claimant had filed for unemployment compensation benefits. Believing that Claimant had resigned her position, Bharat did not call her that evening with her weekend work schedule. In response to the UC Service Center s questionnaire, Employer stated that Claimant had voluntarily resigned. On July 12, 2007, the UC Service Center issued a determination approving benefits for Claimant under Section 402(e) of the Unemployment Compensation Law (Law).1 Employer appealed, and hearings were conducted by a Referee. Claimant testified that when she called the Department of Labor and Industry on May 29, 2007, she was not intending to seek unemployment 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides, in pertinent part: An employe shall be 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 ¦ 43 P.S. §802(e). The Referee acknowledged that the UC Service Center approved unemployment benefits under Section 402(e) of the Law. The Referee further acknowledged that Employer asserted that Claimant was not entitled to benefits under Section 402(b) of the Law, 43 P.S. §802(b), because she voluntarily resigned from her position with Employer. 3 compensation. After speaking with the UC Service Center Representative, however, she did so. Reproduced Record at 83a-84a; 89a (R.R. __). Claimant testified that she believed she was terminated on May 31, 2007, because Employer never called her with her schedule and because Employer had deducted the full cost of her uniform from one check instead of distributing it among three paychecks. Claimant stated that she had been available for work had Employer called on May 31, 2007. Claimant acknowledged that she had filed a claim for unemployment compensation on May 29, 2007, and that she knew it would be sent to Employer. On behalf of Employer, Bharat testified that he did not fire Claimant. Bharat testified that, upon receipt of notice that Claimant had filed for unemployment compensation benefits, he believed that Claimant had resigned her position. Employer also introduced, without objection, a copy of the work schedule Bharat had prepared prior to his receiving the UC Service Center s notice; the schedule showed that Claimant was scheduled to work the weekend after May 31, 2007. On August 21, 2007, the Referee issued a decision concluding that Claimant was terminated. He based this conclusion upon the facts that Employer did not contact Claimant with her work schedule for the remainder of the week or for any week after May 29, 2007, and that Employer had deducted the full amount of Claimant s uniform from a single paycheck. The Referee granted Claimant unemployment compensation benefits. Employer appealed to the Board. Noting that there was a conflict in the testimony, the Board decided to credit Claimant s testimony and to resolve all evidentiary conflicts in her favor. The Board affirmed the Referee s award; and the present appeal followed. 4 On appeal, Employer raises one issue for this Court s review.2 Employer contends that the Board erred in determining that Claimant was terminated from her position with Employer. In support, Employer argues that Claimant could not have reasonably believed that she was terminated because she agreed to discuss her upcoming work schedule with Bharat on the evening of May 31, 2007. Employer also argues that it reasonably believed that Claimant voluntarily resigned from her position when it received on May 31, 2007, notification that Claimant had filed for unemployment compensation benefits. An employee is ineligible for unemployment compensation where the employee voluntarily resigns. Section 402(b) of the Act provides as follows: An employe 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 ¦ 2 The scope of appellate review in unemployment compensation cases is limited to determining whether constitutional rights were violated, whether errors of law were committed or whether findings of fact are supported by substantial evidence. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). In unemployment compensation proceedings, the Board is the ultimate factfinder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Findings made by the Board are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Morehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233, 1238 (Pa. Cmwlth. 2001). 5 43 P.S. §802(b). Where a claimant voluntarily resigns, that claimant is ineligible for unemployment compensation unless the resignation was prompted by necessitous and compelling reasons. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). A claimant bears the burden of proving necessitous and compelling reasons for leaving the job. Wivell v. Unemployment Compensation Board of Review, 673 A.2d 439, 441 (Pa. Cmwlth. 1996). Whether a termination of service is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the totality of the record. Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007). A voluntary quit is found when there is evidence that the employee had a conscious intention to terminate the employment.3 Iaconelli v. Unemployment Compensation Board of Review, 892 A.2d 894, 896 (Pa. Cmwlth. 2006). Generally, an employee who leaves employment without action by the employer will be found to have voluntarily terminated employment. Nolan, 797 A.2d at 1045. However, an employer s use of language will be interpreted as a discharge when it possesses the immediacy and finality of a firing ¦, even if specific words such as fired or discharged are not used. Id. (citations omitted). Here, the Board concluded that Claimant was discharged. In reaching its decision, the Board reasoned as follows: 3 Merely leaving the work premises is generally not enough to demonstrate an employee s intent to voluntarily terminate her employment. Philadelphia Parent Child Center, Inc. v. Unemployment Compensation Board of Review, 403 A.2d 1362 (Pa. Cmwlth. 1979). However, an employee who leaves her employment without informing her employer when or if she is planning to return may be held to have voluntarily quit. Unemployment Compensation Board of Review v. Metzger, 368 A.2d 1384 (Pa. Cmwlth. 1977). 6 The claimant reasonably thought, when she received her paycheck, that she had been discharged. The employer and the claimant had previously agreed that the costs of her work clothes would come out of her paychecks over three paychecks. Instead, the claimant saw, in her May 29 paycheck, that all the money had been deducted at once, and interpreted this to mean that there would be no more paychecks from which the employer would deduct the money, because she was fired. This was a reasonable assumption. The employer took the claimant s filing for unemployment to mean that she was resigning her employment. However, this is not a reasonable assumption given that the employer had reduced the claimant s hours due to business being slow. The employer should have contacted the claimant on May 31, as he indicated he would, to give the claimant her work schedule. Compounded with the paycheck issue, the claimant was reasonable in assuming, after not hearing from the employer on May 31, 2007, that she had been discharged. Filing for unemployment compensation benefits is not willful misconduct, and the employer has failed to prove that the claimant s other actions were willful misconduct for which she was discharged. Board Opinion, dated October 11, 2007, at 3-4. The Board s conclusion overlooks the sequence in which these events occurred. On May 29, 2007, Claimant called Employer about her schedule and was told that she would be called on May 31, 2007. Immediately thereafter, Claimant called the Department to report Bharat s rude behavior on the telephone, and this led her to file a claim for unemployment compensation. In response to a question from the UC Service Center representative as to why she filed for unemployment compensation, Claimant stated: [I] called to ask [a] question about his behavior thinking [I] was getting labor and industry because [I] was very upset because of the way he treated me. [A]fter talking with the woman at [the UC Service Center I] decided to file a claim. 7 R.R. at 27a. Claimant then picked up her paycheck, which had a deduction for the entire cost of her uniform. When she talked to Bharat, she did not raise the issue of her uniform. He told her that he would call her May 31, 2007, with her work schedule. Employer did not make the call because in the interim it was learned that Claimant had filed for unemployment compensation benefits. At no time did Claimant question Employer about the paycheck issue or provide Employer with the opportunity to correct the matter.4 Likewise, when Claimant did not hear about her schedule, she did not contact Employer. Although the Board credited Claimant s testimony, there really was no conflict about what happened on May 31, 2007, or the days preceding.5 Claimant filed for unemployment on May 29, 2007. It was two days later that the events occurred that were found by the Board to constitute a discharge. The fact that Claimant s hours had been reduced fails to support entitlement to unemployment compensation benefits because Claimant asserted in her application for unemployment compensation that she had been discharged for absenteeism, not that she left because her hours had been reduced. More importantly, when Claimant filed for unemployment benefits, there was nothing about Employer s conduct that constituted the immediacy and finality of a firing. Nolan, 797 A.2d at 1046. Further, Claimant knew that Employer would receive her claim for benefits. But for Claimant s application for unemployment benefits, Employer would have called 4 It is undisputed that the agreement to deduct the cost of Claimant s uniform evenly from three paychecks was with Bharat s spouse. It is unclear from the record whether Employer had any knowledge of the agreement at the time the paycheck was issued to Claimant. 5 Claimant testified that Employer s work schedule admitted into the record was a false document, but it is not dispositive evidence. 8 Claimant and, presumably, she would have continued her part-time job with Employer.6 The facts on which the Board relied do not support a conclusion that Claimant was terminated. Moreover, it was reasonable for Employer to believe that Claimant had quit. Accordingly, we reverse the Board s award of unemployment compensation benefits to Claimant. ______________________________ MARY HANNAH LEAVITT, Judge 6 The dissent would affirm the Board s award based on Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 565 A.2d 127 (1989). In Monaco, employees, who left the premises during work hours after being denied permission to do so, were found to have quit their jobs. In affirming the denial of unemployment benefits, the Supreme Court noted that where an employee without any action of the employer resigns, leaves or quits employment that action amounts to a voluntary leaving. Id. at at 45-46, 564 A.2d at 129 (citation omitted). In this case, the Claimant manifested her intent to terminate her employment by filing for unemployment benefits prior to any action of the employer to justify her belief that she had been fired. Monaco supports the conclusion that Claimant s actions amount to a voluntary leaving. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Twin Kiss, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 2073 C.D. 2007 ORDER AND NOW, this 23rd day of June, 2008, the order of the Unemployment Compensation Board of Review, dated October 11, 2007, in the above-captioned matter is hereby REVERSED. ______________________________ MARY HANNAH LEAVITT, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Twin Kiss, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : No. 2073 C.D. 2007 : Submitted: March 28, 2008 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE PELLEGRINI FILED: June 23, 2008 From the majority s version of the events, which reads like a comedy of errors, it is clear that Claimant never intended to quit her employment. Given that [a] finding of voluntary termination is essentially precluded unless the claimant had a conscious intention to leave his employment, Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 45, 565 A.2d 127, 129 (1989), the majority improperly found that Claimant voluntarily terminated her employment. Because I would affirm the Board s award of benefits, I respectfully dissent.1 ______________________________ DAN PELLEGRINI, JUDGE 1 In footnote 6, the majority, in a misdirected response to this piquant dissent, concentrates on the facts of Monaco rather than its holding that an employee does not quit unless an employee had an intent to do so as evidenced by words or deeds. The response ignores that the basis for the dissent is that no facts support the conclusion that Claimant quit.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.