N. A. Stuck v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nancy A. Stuck, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : No. 2202 C.D. 2007 : Submitted: April 25, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: June 4, 2008 Nancy Stuck (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review that affirmed with modification a referee s decision denying her claim for unemployment compensation benefits following her voluntary quit from employment with MJS Photo (Employer), and directing the recovery of benefits paid to Claimant for the period from May 19 through July 14, 2007, a total of $945.00.1 Before Claimant accepted this employment with MJS Photo she had filed for and began receiving unemployment compensation benefits following her December 15, 2006 separation from a previous job with a different employer. Although Claimant began working for Employer on May 19, she continued to file claims, and during that period received a total of $945.00. 1 weeks. The Board modified the referee s decision by reversing his imposition of eleven penalty The facts regarding her employment with MJS Photo as found by the referee and accepted by the Board are summarized as follows. MJS Photo employed Claimant as a Sales Consultant for Wedding Photography from April 25 through May 12, 2007. Claimant understood at the time she accepted the position that her compensation would be based solely upon commissions from sales, and that, in accordance with the terms of employment set down by Employer, she would be required to rely upon leads Employer provided and could not seek leads on her own. On May 11, 2007, Claimant complained to Employer regarding the lack of leads (and consequential lack of compensation) it was providing to her, and left employment on May 12. The record indicates that, after separating from Employer, Claimant filed an application for benefits based upon her voluntary quit. The Bureau of Unemployment Compensation Benefits and Allowances apparently recognized that Claimant had continued to receive unemployment compensation benefits during her period of employment with MJS Photo and initiated an action to determine whether she had been entitled to those benefits. The Bureau made determinations that (1) she had voluntarily terminated her employment with Employer and therefore was not entitled to unemployment compensation benefits based on that separation, and (2) she had unlawfully continued to apply for and receive benefits for her previous unemployment status while she was employed by Employer. Claimant appealed these determinations and a referee conducted a hearing at which Employer did not appear. Accordingly, only Claimant presented evidence at the hearing. 2 In this appeal,2 Claimant, proceeding pro se, essentially asserts that: (1) the Board erred in concluding that Claimant lacked adequate grounds for her voluntary quit where there was no evidence in the record that Employer was able or willing to provide job-related opportunities for its photography studio near Claimant s geographical area; (2) substantial evidence does not support various factual findings. In an unemployment case, Claimants seeking benefits bear the burden of establishing either that (1) their separation from employment was involuntary or (2) their separation was voluntary but they had a cause of a necessitous or compelling nature that led them to discontinue the relationship. The conscious intention of a claimant to leave employment generally forecloses any question of whether the separation was involuntary. Spadaro v. Unemployment Compensation Appeal Board, 850 A.2d 855 (Pa. Cmwlth. 2004). Also, when an employer has taken no action to terminate the relationship, and an employee leaves employment the courts have considered the separation to be voluntary. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727 (Pa. Cmwlth. 1989). Accordingly, we first consider whether the separation was voluntary in nature. There is no testimony in the record indicating that Employer ever suggested to Claimant that it would terminate the employment relationship or that it engaged in any activity that would have suggested to Claimant that it did not 2 This Court s standard of review where the burdened party is the only party to present evidence is limited to determining whether the Board capriciously disregarded Claimant s evidence, 2 Pa.C.S. §704, but we note that the capricious disregard standard of review previously applicable in cases such as this, where the burdened party lost before the Board and was the sole presenter of evidence, remains a component of our review. See Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1103, n.2 (Pa. Cmwlth. 2005). 3 want to continue the relationship. Hence, the record supports a conclusion that Claimant voluntarily terminated the relationship. We then must consider whether Claimant had cause of a necessitous and compelling nature that would have justified her decision to terminate the relationship. Claimant s acceptance of her position with Employer created a presumption that the work was suitable. Fitzgerald v. Unemployment Compensation Board of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998). As noted above, Claimant testified that Employer (1) informed her at the time of hiring that her compensation would be derived solely from commission; (2) that Employer would be the source of leads for customers; and (3) that Employer never guaranteed a certain number of leads. Claimant also testified to the fact that Employer had informed her that her geographical area was new and had not been developed. As the Board noted, when an employee quits because she is dissatisfied with the terms of employment, the employee must establish that the employer deceived her as to the terms of employment or that the terms had changed. Stiffer v. Unemployment Compensation Board of Review, 438 A.2d 1058 (Pa. Cmwlth. 1982). Based upon Claimant s own testimony, we conclude that she knew of the terms of her employment, and that Employer did not deceive her concerning the conditions. Claimant argues that the Employer was not an Equal Employment Opportunity Employer; however, she fails to relate this alleged aspect of her case to the unemployment compensation law and the facts in this case. Further, her petition for review nowhere raises this as an issue. Accordingly, the Court will not address this element of Claimant s argument. Claimant also asserts that a number of the Board s factual findings are not supported by substantial evidence. However, Claimant s own record testimony 4 supports each of the numbered findings she attempts to challenge. In asserting this argument, Claimant repeatedly relies upon her allegation that Employer never provided her with leads. However, the record indicates that Employer did provide her with three leads during the two-week period Claimant worked for Employer. Although Claimant s testimony indicates that Employer provided more leads to employees in areas in which Employer had already established its business, that testimony is insufficient to support Claimant s assertion that the factual findings are not supported by substantial evidence. Finally, with regard to the Board s direction to repay the benefits Claimant received following Employer s hiring of her, she relates that her failure to report the change in her status was a result of human error. Unfortunately we must conclude that her misunderstanding of the law is an insufficient basis upon which to reverse the Board s decision. Claimant accepted the position with Employer and obtained leads, albeit minimal leads, that could have produced income. As discussed above, the fact that her income would have been derived solely from commissions does not alter that conclusion. See Kelly v. Unemployment Compensation Board of Review, 840 A.2d 469 (Pa. Cmwlth. 2003). Under Section 802(a) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §874(a), [a]ny person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay the Unemployment Compensation Fund ¦ . Claimant herself admits to failing to report her employment status because she did not realize the term employment was synonymous with earnings. However lacking in intent to defraud, the undeserved 5 payments were made because of her error. Accordingly, we conclude that the Board did not err in directing Claimant to repay the subject benefits. Based upon the foregoing, we affirm the decision of the Board. ____________________________________ JAMES GARDNER COLINS, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nancy A. Stuck, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : No. 2202 C.D. 2007 : ORDER AND NOW, this 4th day of June, 2008, the order of the Unemployment Compensation Board of Review is affirmed. ____________________________________ JAMES GARDNER COLINS, Senior Judge
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