Opinion
No. 143 C.D. 2013
09-20-2013
Roxanne Allen, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Roxanne Allen (Claimant) petitions, pro se, for review of the December 7, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant was ineligible for benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). We affirm.
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 who voluntarily leaves work without cause of a necessitous and compelling nature is ineligible for compensation.
Claimant was employed with Mercy Hospital of Philadelphia as a full-time medical technologist from November 25, 1981, until she voluntarily quit on February 2, 2012, to relocate with her spouse. (Findings of Fact (F.F.) Nos. 1, 7.) On May 4, 2012, the local service center determined that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed, and the referee held a telephone hearing on July 10, 2012. However, Claimant did not participate and, absent any evidence adduced on her part, the referee affirmed the local service center's determination. Claimant then appealed to the Board, which remanded to a referee with instructions to conduct a hearing and receive evidence concerning Claimant's failure to appear at the first hearing and to allow Claimant to present evidence on the merits. (F.F. at 8-9, Board's Discussion; R. Item No. 11, # B10.)
At the remand hearing, Claimant testified via telephone that she was not available for the first hearing because she did not receive notice that the hearing was changed from July 23 to July 10. (Notes of Testimony (N.T.) at 7-8.) Claimant next stated that her then-fiancé had moved from Philadelphia to Baton Rouge, Louisiana, in August 2011; she married him a few months later on December 30, 2011; and she handed in her resignation in mid-January 2012, and relocated with her husband after her final day of employment on February 2, 2012. (N.T. at 8-9.) Claimant said that her then-fiancé moved to Louisiana as a result of his medical condition, namely "bad arthritis" and "real bad chronic pain in his joints," which requires him to walk with a cane. (N.T. at 9.) According to Claimant, the cold weather in Philadelphia was "deteriorating" her fiancé's condition and he moved to the warmer climate of Louisiana in an attempt "to get better." Id. In her resignation letter, which was admitted into evidence at the first hearing, Claimant stated that she would be "relocating to [Louisiana] with [her] husband to assist with company business due to his ailing health and to become his caregiver." (R. Item No. 3, Ex. 12.) In her application questionnaire for benefits, also introduced as evidence at the first hearing, Claimant stated that her then-fiancé's business in Philadelphia was not "growing," he "had to move to generate more business and income," and he was "offered a better business opportunity" in Louisiana. (R. Item No. 2, Ex. 10.) Caroline McGuckin, Employer's human resources consultant, was present for the hearing; however, she did not testify or cross-examine Claimant.
By decision and order dated December 7, 2012, the Board concluded that Claimant had good cause for not attending the first hearing. With respect to the merits, the Board affirmed the referee's denial of benefits. In doing so, the Board made the following pertinent findings of fact:
2. In August 2011, [Claimant's] fiancé moved to [Louisiana] due to alleged health concerns.(F.F. at 2-7.)
3. [Claimant's] fiancé suffers from arthritis and [Claimant] alleges that her fiancé needed to move to a warmer climate to improve his health.
4. [Claimant's] fiancé also moved to [Louisiana] ... because his business in the Philadelphia area was not doing well and he wanted to move where he thought better business opportunities existed.
5. [Claimant] married her fiancé on December 30, 2011.
6. [Claimant] gave her two week notice to [Employer] in mid-January 2012.
7. [Claimant] quit her position to move to [Louisiana] to be with her husband.
Based upon these findings and its credibility determinations, the Board concluded that Claimant failed to carry her burden of proving a necessitous and compelling reason for terminating her employment. The Board reasoned as follows:
The Board finds insufficient credible medical evidence in support of [Claimant's] assertion that her husband's
medical condition required him to move to the warmer climate of Louisiana. Furthermore, [Claimant's] husband appears to have been motivated to move, in part, simply to explore business opportunities in that State. This is a matter of personal choice. Finally, the Board finds insufficient credible medical evidence that [Claimant] had to provide care for her husband personally.[](Board's Discussion.)
Although the Board's analysis may suggest that Claimant was required to produce corroborative medical evidence to establish that her husband's medical condition provided necessitous and compelling cause to relocate, Claimant does not challenge the Board's decision on that basis. See Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991) (holding that issues not raised in a claimant's brief are waived).
On appeal, Claimant argues that the Board erred in failing to give proper credence to her testimony and written statements that her husband relocated due to his medical condition.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Where a claimant terminates employment to join a relocating spouse, she can satisfy her burden of proving a necessitous and compelling cause by first showing an economic hardship in maintaining two residences or that the move has resulted in an insurmountable commuting problem. Lechner v. Unemployment Compensation Board of Review, 639 A.2d 1317, 1321 (Pa. Cmwlth. 1994). In addition, the claimant must 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. Id.
In her brief, Claimant argues that the Board failed to address the issue of whether she proved economic hardship or an insurmountable commuting problem. Claimant is correct in this assertion. However, as indicated above, Claimant must also prove that it was necessary for her husband to relocate and that his relocation was caused by circumstances beyond his control. The Board found that Claimant failed to carry her burden in this regard, and we will confine our analysis to whether the Board erred in so determining.
It has been firmly established and repeatedly held that the Board is the ultimate fact-finder and is empowered to make all determinations concerning witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985); Hanover Industrial Machine Co. v. Unemployment Compensation Board of Review, 466 A.2d 290, 293 (Pa. Cmwlth. 1983). In making such determinations, the Board is free to reject the testimony of any witness, even if that testimony is uncontradicted. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). The mere fact that a party presents enough evidence to prove a compelling and necessitous reason does not guarantee her success; in addition, the evidence must be found credible and afforded sufficient weight so as to convince the trier of fact to issue a finding crediting the evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). "If specific credibility determinations appear that support the result of the adjudication, then we may affirm the decision below on the basis that the burdened party failed in [her] burden to persuade the factfinder." Id. (emphasis in original.)
Here, the Board exercised its role as fact-finder in determining that Claimant's testimony and written statements were unpersuasive and declining to give them the evidentiary weight necessary to establish that her husband's medical condition required him to relocate. Moreover, the Board correctly concluded that as a matter of law, Claimant's evidence that her husband relocated to pursue a better job opportunity reflects a reason that is personal to him and not beyond his control. See Gaunt v. Unemployment Compensation Board of Review, 510 A.2d 895, 896 (Pa. Cmwlth. 1986) (concluding "that the husband's decision to accept a better position in another city was not a circumstance beyond his control."). With there being no other evidence or reason of record explaining why Claimant's husband relocated, we conclude that the Board did not err in determining that Claimant failed to prove a necessitous and compelling reason for terminating her employment and, therefore, is ineligible for benefits under section 402(b) of the Law.
To the extent that Claimant argues that the Board capriciously disregarded her evidence concerning her husband's medical condition, we reject this assertion as meritless because the Board's decision verifies that it expressly considered Claimant's evidence but rejected it as unpersuasive. See In re Nevling, 907 A.2d 672, 675 n.4 (Pa. Cmwlth. 2006) (concluding that where evidence is expressly considered and rejected, there is no capricious disregard of that evidence).
In her brief, Claimant discusses a denial letter that her husband received from the Department of Veterans Affairs Center for Veterans Enterprise, which she claims declared that her husband was not capable of controlling the day-to-day operations and decision-making authority necessary to participate in a government business program for veterans. However, this letter was not testified to or otherwise made part of the record in the proceedings below and, therefore, this Court cannot consider the letter or its purported contents on appeal. See McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972) (concluding that "it is black letter law that an appellate court cannot consider anything which is not a part of the record in the case."). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 20th day of September, 2013, the December 7, 2012 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge