J. L. Kubacka v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jessica L. Kubacka, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 354 C.D. 2008 Submitted: June 20, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: July 25, 2008 Jessica L. Kubacka (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming a Referee s decision denying her claim for unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).1 We affirm. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides that an employee who voluntarily terminates her employment without cause of a necessitous and compelling nature is ineligible for benefits. Claimant was last employed by IDEARC Media Corporation (Employer) as a compositor/artist from May 19, 1997, to September 25, 2007. On or about October 3, 2007, Claimant filed an internet claim for benefits with the Altoona UC Service Center (Service Center). By notice of determination mailed October 19, 2007, the Service Center determined that Claimant was eligible for benefits pursuant to Section 402(b) of the Law because she voluntarily quit her employment to relocate with her spouse whose continuing employment with his employer was contingent upon accepting a promotion. Employer, alleging that Claimant quit her employment for personal reasons, appealed the Service Center s determination. A hearing on Employer s appeal was held before a Referee. Employer participated in the hearing via telephone; however, Claimant did not participate in the hearing either by telephone or in person. The Referee noted on the record that the notice of hearing was mailed to Claimant s last known address, that the notice was not returned marked as undeliverable by the U.S. Postal Service, and that the Referee s office had no contact from Claimant requesting a delay or a continuance for appearance. Based on the unobjected to documents of record and the competent and credible testimony of Employer s representative, the Referee found that Claimant voluntarily left her employment for personal reasons without elaborating and that continuing work was available. Therefore, the Referee reversed the Service Center s determination and denied Claimant benefits pursuant to Section 402(b) of the Law. Claimant appealed the Referee s decision to the Board. Without making any independent findings of fact or conclusions of law, the Board adopted and incorporated the Referee s finding and conclusions and affirmed the Referee s decision. This appeal followed. 2. Initially, we note that this Court's review of the Board's decision is set forth in Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704, which provides that the Court shall affirm unless it determines that the adjudication is in violation of the claimant's constitutional rights, that it is not in accordance with law, that provisions relating to practice and procedure of the Board have been violated, or that any necessary findings of fact are not supported by substantial evidence. See Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). An adjudication cannot be in accordance with the law if it is not decided on the basis of law and facts properly adduced; therefore, appellate review for the capricious disregard of material, competent evidence is an appropriate component of appellate consideration if such disregard is properly before the reviewing court. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002). When determining whether the Board capriciously disregarded the evidence, the Court must decide if the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important. Id. at 487 n. 12; Porco. Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules v. Unemployment Compensation Board of Review, 604 A.2d 1159 (Pa. Cmwlth. 1992). The Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and 3. evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The question of whether particular facts constitute a voluntary quit is a question of law fully reviewable by this Court. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988). The claimant bears the burden of proving a necessitous and compelling reason for voluntarily terminating the employment relationship. Mutual Pharmaceutical Company, Inc. v. Unemployment Compensation Board of Review, 654 A.2d 37 (Pa. Cmwlth. 1994). As this Court recently stated: Where a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem. Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561 (Pa. Cmwlth. 1995); Hammond v. Unemployment Compensation Board of Review, 569 A.2d 1013 (Pa. Cmwlth. 1990). The claimant must also show that her resignation was the direct result of her spouse's relocation, i.e., the necessity to relocate must be caused by circumstances beyond the control of the claimant's spouse and not by personal preference, and the decision to relocate must be reasonable and be made in good faith. Id. These principles reflect the General Assembly's intent to permit the obligation of joining one's spouse, under the proper circumstances, to constitute cause of a necessitous and compelling nature to leave one's employment. Id. The desire to maintain the family unit is not by itself sufficient cause to terminate one's employment and receive benefits. Schechter v. Unemployment Compensation Board of Review, 491 A.2d 938 (Pa. Cmwlth. 1985). 4. Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242-43 (Pa. Cmwlth. 2003); see also Procito v. Unemployment Compensation Board of Review, 945 A.2d 261 (Pa. Cmwlth. 2008). Herein, Claimant argues that she is entitled to benefits because she quit her job to relocate with her spouse from Philadelphia to Pittsburgh therefore creating an economic situation that could not be overcome and making it financially impossible to maintain two residences. However, the evidence accepted as credible by the Board does not support Claimant s position. As the record shows, Claimant did not appear or participate in the hearing before the Referee. Claimant offers no explanation as to why she did not appear nor does she contend that she had no notice of the hearing.2 It is axiomatic that this Court is constrained, in its review of an appeal from a Board decision, to the issues preserved before the Board and to the evidence presented in support of or in opposition to those issues.3 As Claimant failed to appear for the hearing to present evidence proving that she voluntarily quit her employment due to her spouse s relocation, we may only consider whether the Board s decision is supported by the evidence submitted by Employer. Employer s representative credibly testified that Claimant informed Employer that she was resigning for personal reasons, that Claimant did not cite 2 We note that in her request to the Board for reconsideration of its decision, Claimant apologizes for not attending the hearing and explains that she was in the middle of moving and her mail was behind with the forwarding address. See Certified Record at 14. 3 See Pa.R.A.P. 1551 (No question shall be heard or considered by the Court which was not raised before the government unit.). It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case. Smith v. Smith, 637 A.2d 622, 62324 (Pa. Super. 1993), petition for allowance of appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994). 5. any other circumstances for her resignation, and that continuing work was available had Claimant not resigned. As such, the Board s decision is supported by substantial evidence. Accordingly, the Board s decision is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge 6. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jessica L. Kubacka, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 354 C.D. 2008 ORDER AND NOW, this 25th day of July, 2008, the order of the Unemployment Compensation Board of Review in the above captioned matter is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge
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