R. M. Johnson v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rashidah M. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 27 C.D. 2008 Submitted: April 25, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: May 29, 2008 Rashidah M. Johnson (Petitioner) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), dated December 14, 2007, affirming the decision of an Unemployment Compensation Referee (the Referee), thereby denying unemployment compensation benefits to Petitioner. We now affirm. Petitioner sought unemployment compensation benefits after having ceased employment with Wachovia Bank (Employer) as a Lock Box Data Entry Associate. On or about July 24, 2007, the Pennsylvania Department of Labor and Industry (Department) issued a notice of determination under Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง802(b), denying benefits for Petitioner. Petitioner filed a timely appeal from the Department s determination.1 A hearing was held on September 26, 2007. testimony from Petitioner. At the hearing, the Referee received Jorge Herrera, a team leader employed by Employer, appeared at the hearing on behalf of Employer. On or about September 28, 2007, the Referee issued a decision affirming the Department s determination and denying benefits to Petitioner under Section 402(b) of the Unemployment Compensation Law. The Referee found that Petitioner worked for Employer from April 28, 2007, through June 27, 2007. (Referee s decision and order, attached to Petitioner s brief). She worked twenty hours per week as a part-time employee. Id. When Petitioner accepted the position, she knew that her hours would be from 8:00 a.m. until 6:45 p.m, Saturdays and Sundays. Id. The Referee found that Petitioner quit her job to spend more time with family members, including her grandmother and great-uncle. Id. The Referee further found that Petitioner did not exhaust all of her alternatives before leaving. Id. The Referee concluded that Petitioner did not meet her burden to show necessitous and compelling reasons to justify her decision to leave her employment. In so concluding, the Referee explained as follows: In the present case, [Petitioner] accepted her position knowing that her hours would be from 8:00 a.m. until 6:45 p.m. on Saturday and Sunday. She explained during the hearing that 1 The Referee found that Petitioner credibly testified that she sent an appeal by facsimile transmission on August 9, 2007. (Referee s decision and order, attached to Petitioner s brief). The Referee also found that the file contains a transmission receipt indicating that the appeal was sent and received. Id. For reasons that are unclear, the Service Center did not process the appeal. Id. Petitioner filed another appeal on September 6, 2007, which was late. Id. As a result of the breakdown in the legal system, the Referee found Petitioner s appeal timely filed. Id. The timeliness of the appeal is not an issue before this Court. 2 she did not realize how much she would miss spending time with her grandmother and great-uncle. [Petitioner s] greatuncle is currently in a nursing home. [Petitioner s] grandmother is only in fair health, but she is not currently institutionalized. [Petitioner] explained that she was still a probationary employee and would not be allowed to either get a leave of absence or change jobs because of this. Employer credibly testified that other options were available and that she never presented Employer with the real reason for her difficulties prior to leaving. The Referee finds Employer s testimony in this regard to be credible. [Petitioner] did not exhaust all of her alternatives. Even if [Petitioner] had exhausted all of her alternatives, the result would be the same. [Petitioner] made a personal choice of quitting her job. She did so because she wanted to spend more time with family members. She knew that her hours would be on Saturday and Sunday. She cannot say that the conditions of her employment changed or were onerous. (Referee s decision and order, attached to Petitioner s brief). Petitioner then filed an appeal to the Board. By decision and order dated December 14, 2007, the Board issued an order affirming the decision of the Referee. The Board adopted and incorporated the Referee s findings and conclusions. Petitioner then filed the subject petition for review with this Court. On appeal,2 Petitioner essentially argues that substantial evidence of record exists to support a finding that she voluntarily quit for a necessitous and compelling cause and that the Referee and Board s findings to the contrary are not supported by substantial evidence of record. 2 In an unemployment compensation case, this Court s scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether substantial evidence supports the findings of fact. Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385 (Pa. Cmwlth. 2001). 3 Section 402(b) of the Unemployment Compensation Law provides that a claimant shall be ineligible for compensation for any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. This Court has stated that: A claimant has the burden of establishing the existence of necessitous and compelling reasons for quitting, and such cause is defined as circumstances that produce pressure to terminate the employment which is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Additionally, the claimant must prove that she acted with ordinary common sense in quitting her job, that she made a reasonable effort to preserve her employment, and that she had no other real choice than to leave her employment. Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995) (citations omitted). Under certain circumstances, the family obligations of a claimant may constitute necessitous and compelling cause to quit employment. Du-Co Ceramics Co. v. Unemployment Compensation Board of Review, 546 Pa. 504, 686 A.2d 821 (1996). For instance, in Pittsburgh Pipe and Coupling Company v. Unemployment Compensation Board of Review, 401 Pa. 501, 165 A.2d 374 (1960), the Supreme Court affirmed the granting of benefits to a claimant who quit his employment to return home and take care of his wife, who had suffered a disabling spinal injury, and their children. Similarly, in Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa. Cmwlth. 2000), we concluded that a claimant who quit his employment to move back in with his eleven-year-old son, who was having emotional and behavioral problems, established necessitous and compelling cause for quitting, thereby entitling him to unemployment compensation benefits. We have also granted benefits to a claimant when he quit his employment to move back home, in part, to take care of his 4 ailing father. Speck v. Unemployment Compensation Board of Review, 680 A.2d 27 (Pa. Cmwlth. 1996). However, in Green v. Unemployment Compensation Board of Review, 529 A.2d 597 (Pa. Cmwlth. 1987), we explained that while family obligations may constitute a necessitous and compelling reason to leave one's employment, the reasons may not be purely personal. In support of her argument, Petitioner states that she left her position with Employer because she was not spending time with her family members when they needed her most. She argues that her position with Employer was taking a toll on her and the rest of the family. She states that she was never told that there were any options when she resigned from her employment. She believed that she had to complete her ninety-day probationary period before she could receive vacation, personal and sick days, and that she could not post for another position for a year. She questions whether her manager had any discretion to relocate her to another position. The Board argues that Petitioner s stated reasons for resigning her employment are merely personal in nature. She did not testify that her grandmother or great-uncle or any other family member required her to take care of them due to medical problems. While she may have had a legitimate personal reason to quit available employment, it did not constitute a necessitous and compelling reason as defined by the law. Additionally, the Board argues that Petitioner did not exhaust all of her alternatives before resigning from her position. After reviewing the record, must we agree with the Board that Petitioner quit her job without a necessitous and compelling reason and that she failed to make an effort to preserve her job. Petitioner did not establish that her presence was required in order for her family members to receive proper care. Petitioner also did not establish that she made an effort to discuss the matter with Employer. Rather, Petitioner made a 5 purely personal choice to quit her job to spend more time with elderly family members. While Petitioner s reasons for resigning from employment may be understandable, these reasons do not constitute cause of a necessitous and compelling nature under section 402(b). Accordingly, we must affirm the order of the Board. JOSEPH F. McCLOSKEY, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rashidah M. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 27 C.D. 2008 ORDER AND NOW, this 29th day of May, 2008, the order of the Unemployment Compensation Board of Review is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge
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