Opinion
No. 1475 C.D. 2011
03-14-2012
Andrew E. Hrinda, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Andrew E. Hrinda (Claimant), proceeding pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that reversed the Unemployment Compensation Referee's (Referee) decision and determined that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).
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, in relevant part, that: "[a]n employe shall be ineligible for compensation for any week . . . (b) [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was employed as a full-time sales representative by Western & Southern Insurance Co. (Employer) from February 22, 2010, through February 4, 2011. Claimant was paid on a commission basis and was paid for servicing his territory. When Claimant accepted this position, he was aware that he would be paid primarily by commission. Claimant voluntarily quit because he was dissatisfied with his earnings when his sales were down. (Board's Findings of Fact (FOF) ¶¶ 1-5.)
Claimant filed a claim for UC benefits, which was denied by the local service center under Section 402(b) of the Law. (Notice of Determination, R. Item 5.) Claimant appealed and following a hearing held on April 13, 2011, at which Claimant and Employer's District Sales Manager (Sales Manager) testified, the Referee reversed the service center and found Claimant eligible for UC benefits. The Referee determined that Claimant "was being paid virtually nothing," and the situation was sufficiently dire that Claimant terminated his employment. The Referee reasoned that Claimant had made a reasonable effort to preserve his employment by meeting with Employer's sales managers in an attempt to find a solution to his dilemma but, when none was found, Claimant "acted with ordinary common sense in quitting." (Referee's Decision and Order at 2.)
Employer appealed to the Board, arguing that the contract governing Claimant's employment terms provided for Claimant to be paid by "commission only" and Claimant's decreased pay was connected to his decreased efforts. (Petition for Appeal at 3.) The Board made its own findings of fact and reversed the Referee's decision, finding Claimant ineligible for UC benefits under Section 402(b) of the Law and reasoning that Claimant was aware, when he accepted the position, that he would be paid primarily on the basis of commission; therefore, Claimant accepted the risk that commissions, by their nature, can go up as well as down. (Board's Decision/Order at 2.) This appeal followed.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with law or whether necessary findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010).
On appeal, Claimant argues that he had two necessitous and compelling reasons to quit his employment, either one of which would render him eligible to receive UC benefits: 1) that he was not earning what he had been told he could expect to earn; and 2) that he was not making enough money to cover his transportation expenses because he was being paid virtually nothing. Claimant additionally argues that he took steps to preserve his employment and did everything he could to remain gainfully employed.
We first address Claimant's argument that he had a necessitous and compelling reason to quit when his earnings were not what Employer allegedly told Claimant he could expect. When a claimant voluntarily accepts a job, the employee admits to the initial suitability of the job with respect to wages and conditions. Stiffler v. Unemployment Compensation Board of Review, 438 A.2d 1058, 1060 (Pa. Cmwlth. 1982). To prove that one's work has since become so unsuitable that it becomes necessitous and compelling to quit, a claimant must prove that he has been deceived as to the pay or other conditions of employment that he now deems onerous. Id.
The evidence shows that Claimant testified that his position was paid on the basis of "a commission . . . plus . . . servicing our territories." (Referee's Hr'g Tr. at 6.) Claimant explained that his net pays showed zero. (Referee's Hr'g Tr. at 6-7.) Claimant testified: "I resigned because I was making no money; my pay going down to almost nothing, or nothing, in most cases. And, in the next few weeks or months, it was going to remain that, unfortunately." (Referee's Hr'g Tr. at 6.) Employer's Sales Manager testified and introduced two documents into evidence: (1) a Sales Representative's Agreement, signed by Claimant when he was hired, documenting that Claimant was paid on a commission basis, (Employer's Ex. 1); and (2) Claimant's resignation letter to Employer stating: "I apologize for not being able to meet the production standards." (Employer's Ex. 2.) Claimant did not object to the introduction of these documents. (Referee's Hr'g Tr. at 9.) Sales Manager's testimony confirmed that Claimant held a commission-based position and explained that it was based on life insurance sales and premiums for servicing the accounts. (Referee's Hr'g Tr. at 9.)
In presenting his first argument that he had necessitous and compelling reasons to leave employment when he was not earning what he had been told he could expect, Claimant points to an example from a pamphlet of the Department of Labor and Industry (Department), providing:
Job not the same as what was anticipated - To be eligible, the claimant must show that the monetary expectations of employment were not fulfilled through no fault of the claimant. For example, a claimant
takes a job selling vacuum cleaners because he/she has been told he/she could make $50,000 per year through commission sales. After three weeks, the claimant quits the job because he/she was unable to make any sales and the personal expenses exceeded the income, thereby warranting the allowance of benefits.Pamphlet UCP-41 REV 8-08, Office of Unemployment Compensation at 3 (Pamphlet). Claimant maintains that his job was not what he anticipated and, therefore, he similarly is entitled to UC benefits. He argues:
I was told that I would make around $600.00 per week working at [Employer] and gave it my all to do so. In the end I wasn't making enough money to cover the gasoline expenses getting to and from work. I met with the Management several times to try to rectify this issue and exhausted every reasonable outlet to stay employed.(Claimant's Br. at 9.) Claimant's Petition for Review also states this argument:
I left because my pay was almost zero and would be for some time. I felt this was a compelling and necessitous reason. I had meetings with my immediate supervisor and his supervisor. They were unable to help me with my problem as per Section 402(b). I was led to believe it would be relatively easy to maintain a $600.00/week pay. This proved not to be true for me. Making appointments was much more difficult than I thought and the commissions were just not there.(Claimant's Petition for Review at 1.)
This pamphlet is accessible online at www.portal.state.pa.us, Department of Labor and Industry, Unemployment Compensation.
The Pamphlet contains a preliminary statement located just under the Pamphlet's title, "Unemployment Compensation Eligibility Issues" and placed in a box highlighted by a double-lined border, stating:
This pamphlet provides information about issues that affect eligibility for unemployment compensation (UC). It also contains information about facts that each party- employer and claimant- is responsible to establish when an issue arises.(Pamphlet at 1) (emphasis added).) The preliminary statement explains a key requirement of any unemployment compensation case: that each party is responsible to establish the facts necessary to prove each claim. This proof requirement is essential. Additionally, a claimant who voluntarily terminates his employment bears the burden of proving that his decision to quit was motivated by compelling and necessitous reasons in order to be eligible for benefits. Stiffler, 438 A.2d at 1060.
This pamphlet was prepared to provide general information only. It is not an official statement of the law.
Our review of the record reveals that Claimant did not meet his burden of proof because he did not establish the necessary facts or evidence to prove that Employer misled Claimant. Claimant neither presented evidence that Employer misled him to believe that his commissions would be $600 per week, nor testified to being misled. Our review confirms there is substantial evidence for the Board's findings, including FOF ¶ 3 that Claimant was aware that he would be paid primarily by commission when he accepted this position, and there is no evidence upon which a finding could have been made that Claimant was misled about the commissions. Moreover, "the Board's findings are conclusive on appeal" because "Claimant failed to challenge any specific findings of fact." Campbell v. Unemployment Compensation Board of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).
If the Board's findings are supported by substantial evidence, they are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978). Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). --------
We next address Claimant's second argument that he had a necessitous and compelling reason to quit because he was not making enough money to cover his gasoline expenses for his transportation and was being paid virtually nothing. "The law is well settled that dissatisfaction with one's wages is insufficient to establish the necessary justification for terminating employment." World's Finest Chocolate, Inc. v. Unemployment Compensation Board of Review, 616 A.2d 1114, 1117 (Pa. Cmwlth. 1992) (applying that principle to an individual receiving payment on a commission basis). See also Gardecki v. Unemployment Compensation Board of Review, 132 A.2d 927 (Pa. Super. 1957) (denying benefits to claimant dissatisfied with his commissions because this did not establish a necessitous and compelling reason to quit); Goldstein v. Unemployment Compensation Board of Review, 124 A.2d 401 (Pa. Super. 1956) (denying benefits to claimant who was dissatisfied with commissions); Busfield v. Unemployment Compensation Board of Review, 155 A.2d 436 (Pa. Super. 1959) (denying benefits to claimant dissatisfied with commission earnings that were insufficient to make necessary repairs to a vehicle necessary for the job). Additionally, when a claimant's expenses of maintaining a truck that was required for work rendered employer's compensation inadequate, this Court concluded that this complaint "rises to no more than dissatisfaction with the compensation, not a compelling reason for quitting work." Leshock v. Unemployment Compensation Board of Review, 406 A.2d 1182, 1184 (Pa. Cmwlth. 1979). Accordingly, Claimant's argument that his earnings are insufficient to cover his commuting expenses does not constitute a necessitous and compelling reason to quit under the Law.
In sum, there is no dispute that Claimant was aware that he would be paid by commission when he accepted the position, (FOF ¶ 3), or that Claimant's sales were down and he was earning less money. (FOF ¶ 4.) Therefore, we agree with the Board's reasoning that:
Commissions by their nature can go up as well as go down, and an employee who accepts a commissioned position accepts that risk. The Court has consistently held that a claimant's dissatisfaction with his rate of pay is not a necessitous and compelling reason to quit.(Board's Decision/Order at 2.)
Because we conclude that Claimant's dissatisfaction with his commissioned earnings does not constitute a necessitous and compelling cause to quit, Claimant's additional contention that he took steps to preserve his employment and did everything he could to remain gainfully employed has no application to this case.
Accordingly, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 14, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge