Opinion
No. 1015 C.D. 2012
04-18-2013
Martin Kenney, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Martin Kenney (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision, denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work."
Claimant filed for unemployment compensation benefits after being discharged from employment with the Community College of Philadelphia (Employer) on January 19, 2012. The Philadelphia UC Service Center (Service Center) issued a determination finding Claimant ineligible for unemployment compensation benefits only to the extent that his "part-time earnings" did not conflict with this Court's holding in Richards v. Unemployment Compensation Board of Review, 480 A.2d 1338 (Pa. Cmwlth. 1984). (Certified Record (C.R.), Item No. 5.) Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing.
In Richards, the claimant, while receiving benefits for a layoff from his employment, was discharged for willful misconduct from a part-time job where his weekly earnings were less than his weekly partial benefit credit. The claimant argued that the Board erred in denying him benefits because his part-time job paid less than his "partial benefit credit." We reversed, reasoning that the loss of the part-time job "does not increase the claimant's weekly benefits and thus does not impose an added burden on the fund." Richards, 480 A.2d at 1339.
At the hearing before the Referee, Employer's witness and Human Resources Academic Administrator, Kate Ferry, testified that on January 19, 2012, two days after Claimant began working as a full-time visiting lecturer in the English department, Employer terminated him because he provided false information on his employment application. (C.R., Item No. 11 at 6-11.) Specifically, Ms. Ferry testified that Claimant indicated on the application for the visiting lecturer position, dated December 19, 2011, that he had obtained a Master's Degree from Temple University in May 1982. (Id. at 7-8.) Indeed, she testified that Claimant signed the application which, in pertinent part, provided that "I certify that the information contained in this application is correct to the best of my knowledge and understand that falsification or failure to disclose material information are grounds for dismissal." (Id. at 9 and Employer's Exhibit No. 2.) Additionally, she testified that Claimant signed a criminal background release form on December 23, 2011, which provided in pertinent part:
I hereby affirm that all information provided on this Form is accurate and complete. I understand and agree that failure to fully complete the form, or misrepresentation or omission of facts, are grounds for elimination from consideration for employment, or termination after employment if discovered at a later date. I authorize [Employer] to investigate, without liability, all information contained in this Form.(Id. at 10 and Employer Exhibit No. 3 (emphasis added).) On the background check release form, Claimant also listed that he had obtained a Master's Degree. (Id. at 9.) A background check revealed, however, that Claimant never completed his Master's Degree. (Id.) Ms. Ferry testified that Employer required a Master's Degree for the visiting lecturer position. (Id. at 7.)
In response, Claimant testified that, prior to applying for the position, he had been working, since 1991, as a part-time adjunct professor for Employer. (Id. at 4.) Claimant further testified that he applied for the visiting professor position because Employer had offered it to him. (Id. at 14.) Claimant acknowledged that he had not earned a Master's Degree, contrary to what he had claimed in the application. (Id. at 12.) He testified that at the time he filled out the application, he thought that he had completed the degree program. (Id. at 13.) Claimant admitted to signing the application and criminal background check form. (Id. at 15-16.)
Following the hearing, the Referee issued a decision, affirming and modifying the Service Center's determination. The Referee determined Claimant ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Law, because Claimant provided false information on his application for the visiting lecturer position. (C.R., Item No. 12.) The Referee also concluded that because Claimant's earnings exceeded the sum of his weekly benefit rate and partial benefit credit, the Richards precedent did not apply. (Id.) Claimant appealed the Referee's order to the Board.
On appeal, the Board affirmed the Referee's decision. In so doing, the Board issued its own findings of fact and conclusions of law. The Board found:
1. For the purpose of this appeal, the claimant was last employed on January 19, 2012 as a visiting lecturer for the Community College of Philadelphia, earning $1,335.03 per week.(C.R., Item No. 14.)
2. The employer prohibits falsification of employment applications. Violation of the policy is cause for discharge.
3. On December 19, 2011, the claimant signed a Faculty & Administrative Application for Employment, listing that he earned a [Master of Fine Arts] [d]egree from Temple University that was awarded in May 1982.
4. A background check revealed that the claimant never completed the MFA degree at Temple University.
5. The claimant was discharged for falsification of his employment application.
6. The claimant filed an application for benefits effective January 15, 2012, establishing a weekly benefit rate of $525 and [a] partial benefit credit of $210 for a combined total of $735. The claimant's earnings from this employment would have been $22,400 for the semester.
The Board resolved any conflicts in testimony in Employer's favor. (Id.) Specifically, the Board did not find credible Claimant's testimony "that he was unaware that he had never actually completed the graduate program at Temple University as he asserted in is employment application." (Id.) Based on its findings, the Board concluded that Claimant engaged in willful misconduct and failed to establish good cause for his actions. (Id.) The Board also concluded that the Richards precedent did not apply in this matter because "[C]laimant's salary of $22,400 for the semester, when prorated weekly, even over a period of 26 weeks, exceeds the sum of his weekly benefit rate and partial benefit credit." (Id.) Claimant now petitions this Court for review.
On appeal, Claimant raises two issues for review. First, Claimant appears to argue that substantial evidence does not support the Board's findings of fact numbers 1 and 6, to the extent that they relate to his earnings as a visiting lecturer. Second, he argues that the Board committed an error of law by concluding that Claimant is ineligible for benefits under Richards.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
First, we will address Claimant's argument that substantial evidence does not support the Board's findings of fact. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
Here, Employer's witness credibly testified that Claimant began working as a full-time visiting lecturer on January 17, 2012 at a rate of $22,400 per semester—$1,335.03 per week—which was to conclude on April 26, 2012. (C.R., Item No. 11 at 6-7.) In unemployment cases, it is well settled that the Board is the ultimate finder of fact and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (1985); DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Indeed, Claimant acknowledges this weekly amount in his brief to this Court. (Claimant's br. at 7.) Also, the fact that Claimant only earned the visiting lecturer wage for one week is of no moment to our determination. Accordingly, when viewed in a light most favorable to Employer, our review of the record demonstrates that there is substantial evidence to support the Board's findings regarding Claimant's earnings.
Claimant, on the other hand, testified that he worked six hours per week at $35 per hour as an adjunct instructor. (C.R., Item No. 11 at 5.) Employer's witness clarified that at the time that Employer terminated Claimant's employment, Claimant was working as a full-time visiting lecturer/instructor, not as an adjunct instructor. (Id. at 6.)
We next address Claimant's argument that the Board erred in concluding that he is ineligible for benefits under Richards. It is important to note that the Board actually concluded that Claimant was ineligible for benefits because he engaged in willful misconduct and that the Richards precedent did not apply. This is a slight distinction, but one worth noting.
Prior to analyzing the applicability of Richards, it is also important to understand the nature of the "partial benefit credit" as it relates to eligibility for unemployment compensation. Section 4(m.3) of the Law, prior to its amendment by the Act of June 12, 2012, P.L. 577, defined "partial benefit credit," in relevant part, as:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(m.3), added by the Act of December 17, 1959, P.L. 1397.
[T]hat part of the remuneration, if any paid or payable to an individual with respect to a week for which benefits are claimed under the provisions of this act, which is not in excess of forty per centum (40%) of the [claimant's] weekly benefit rate or six dollars whichever is greater. Such partial benefit credit if not a multiple of one dollar ($1) shall be computed to the next higher multiple of one dollar ($1).Section 4(u) of the Law further provides, in relevant part, that:
An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to any week of less than full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly partial benefit rate plus his partial benefit credit.
The Act of June 12, 2012, P.L. 577, reduced the percentage from 40% to 30% for benefits which begin after December 31, 2012.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(u).
The Pennsylvania Unemployment Compensation Handbook (UC Handbook), available on the Bureau's website, explains the interplay between part-time employment and the partial benefit credit, and when earnings from a part-time job may affect unemployment compensation benefits being received by a claimant for separation from another job. The UC Handbook provides, in part, as follows:
PART-TIME EMPLOYMENT(http://www.dli.state.pa.us/portal/server.pt/community/l_i_home/5278).
You are not eligible to receive benefits for any week in which you are working full time. However, you may be eligible for benefits if . . . you are separated from one job but continue to have part-time employment with another employer(s).
If you are working part-time during a week, and earn no more than your partial benefit credit (see page 3), your earnings will not reduce your benefits for that week. If you earn more than your partial benefit credit, the amount of your earnings that exceed your partial benefits credit will reduce your benefits for that week on a dollar-for-dollar basis. If you earn more than the sum of your weekly benefit rate and your partial benefit credit, you are not eligible for benefits.
In Richards, the claimant, "while receiving benefits for a layoff from his employment at Bethlehem Steel Corporation, was discharged [for willful misconduct] from a part-time job with Dominio's Pizza where his weekly earnings were less than his [weekly] partial benefit credit." Richards, 480 A.2d at 1339 (emphasis added). The claimant, without contesting the Board's findings that he was discharged from his part-time job for willful misconduct, argued that the Board erred in denying him benefits because his part-time job paid less than his "partial benefit credit." In reversing the Board's decision to deny the claimant benefits, we reasoned that, under those circumstances, the loss of the part-time job was irrelevant because it did "not increase [the claimant's] weekly benefits and thus [did] not impose an added burden on the fund." Id. Thus, under the Richards precedent, when a claimant leaves a part-time job at which the claimant was earning less than the amount of this partial benefit credit, the loss of the part-time job becomes irrelevant to the on-going payment of regular benefits. This is because the loss of the part-time job does not increase the amount of weekly unemployment compensation benefits for which an employee is eligible, and, thus, it does not impose an added burden on the fund. See Richards, 480 A.2d at 1339.
In order for Claimant to remain eligible for unemployment compensation benefits under Richards following his termination in January 2012, Claimant was required to establish: (1) that the position of visiting lecturer constituted part-time employment; (2) that he had been receiving unemployment compensation benefits prior to his termination from the visiting lecturer position; and (3) that the amount that Claimant earned per week from the visiting lecturer's position was less than the amount of Claimant's weekly benefit rate plus partial benefit credit. We must conclude that Claimant failed to establish an entitlement to unemployment compensation benefits under Richards or otherwise.
First, assuming that Claimant's employment is considered part-time under the Law, Claimant failed to establish that he had been receiving unemployment compensation benefits prior to his termination from employment in January 2012. Although some aspects of the record may be interpreted to suggest that perhaps he had been receiving prior benefits, other aspects suggest otherwise. Claimant, moreover, never asserts that he had been receiving unemployment benefits prior to the termination of his employment, and the Board does not address this issue either. If Claimant was not already receiving benefits, then Richards is inapplicable.
We note that the Board makes no findings as to whether Claimant's employment as "full-time visiting lecturer" was full-time or part-time employment, despite contradictory testimony on that issue. Claimant does not address the issue in his brief, although the Board appears to concede, at least tacitly, in its brief that Claimant's employment was part-time. (Respondent's br. at 4, 6.)
Second, if Claimant was receiving benefits from prior employment at the time he was discharged from the visiting lecturer's position, assuming it were a part-time position, then Richards would still be inapplicable unless the amount earned per week from the visiting lecturer's position was less than the amount of Claimant's weekly benefit rate plus partial benefits credit. Just as Claimant did not assert that he was receiving unemployment compensation benefits prior to the subject termination, he also provides no information regarding the relevant weekly benefit rate and partial benefit credit for that prior employment. Assuming that the calculated weekly benefit rate and partial benefit credit is similarly applicable to that earlier employment, the Board found that Claimant's weekly earnings from his employment as a visiting lecturer were $1,335, which amount is more than the amount of the weekly benefit rate of $525 and plus the partial benefits credit of $210, which total $735. Thus, assuming for purposes of argument that Claimant was receiving benefits from prior employment, Richards would still be inapplicable under those circumstances.
Finally, the thrust of Claimant's argument that Richards is applicable appears to be that the Referee and Board erred in reversing benefits, when they determined that the money Claimant earned as a visiting lecturer exceeded the allowable maximum amount determined by the sum of his weekly and partial benefit rate. Claimant contends that consideration of the $1,335 that he earned for the first week of the Spring semester was in error, because it is not relevant to his eligibility for unemployment compensation. He notes that "financial eligibility" is based on wages he was paid and the credit weeks he earned during his base year, which was from October 1, 2010, to September 30, 2011. Claimant appears to believe that because his base gross salary was only $537 per week when he was employed as an adjunct in 2010 and 2011, consideration of the $1,135 is improper and Richards is applicable. There is simply no support for this argument based on the legal framework and discussion of Richards as set forth above. The Richards doctrine is premised on the notion that if the loss of wages from the part-time employment results in an additional burden on the unemployment compensation fund, then loss of that part-time employment must negatively impact benefits received for that prior unemployment claim. The Richards doctrine, therefore, necessarily contemplates consideration of the wages earned from the lost part-time employment.
Employer, following issuance of the notice of determination, advised authorities of its contention that the Richards doctrine was not relevant to the matter. (C.R., Item No. 7.) As part of that communication, Employer attached a copy of the "notice of financial determination," also known as a form UC-44F, which differs from a "notice of determination." The form UC-44F determines eligibility based upon wages earned in the first four of the last five completed calendar quarters preceding the date of application. (Id.) The form provides, generally, that a "financial determination alone does not entitle a claimant to benefits," as "[a]n evaluation of the employment history" also is necessary "to determine whether the claimant meets the required eligibility provisions of the Law." (Id.) Claimant may be confused as to the significance or effect of the notice of financial determination. --------
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of April, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge