Opinion
No. 782 C.D. 2013
11-13-2013
Jerome Kundus, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Jerome Kundus (Claimant), now proceeding pro se, petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) affirming the Decision of the UC Referee (Referee), which found Claimant to be ineligible for benefits pursuant to Section 402(b) of the UC Law (Law). The Board concluded that Claimant did not establish that he had cause of a necessitous and compelling nature for voluntarily quitting his employment with Glenshaw Distributors (Employer). Because Claimant did not: (1) meet his burden to prove that his working conditions had become so intolerable that he had no option but to quit his employment; or (2) exhaust all alternatives with Employer before resigning, we affirm.
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 is ineligible for compensation for any week "[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 driver and laborer for Employer through September 19, 2012. (Referee Decision, Findings of Fact (FOF) ¶ 1.) Claimant applied for UC benefits. The UC Service Center (Service Center) determined that Claimant quit his employment for personal reasons; therefore, he was ineligible for UC benefits under Section 402(b) of the Law. (Notice of Determination, R. Item 5.) The Service Center further determined that Claimant lacked eligibility under Section 401(f) of the Law because Claimant was subsequently employed in part-time employment and did not earn an amount that was equal to six times his weekly benefit rate. (Notice of Determination, R. Item 5.) Claimant appealed and a hearing was held on January 8, 2013 before the Referee. Claimant appeared and testified. Employer presented the testimony of its President. Following the hearing, the Referee made the following findings of fact:
43 P.S. § 801(f). Section 401 provides that compensation shall be payable to any employee who is or becomes unemployed, and who
. . . (f) [h]as earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e), 402(e.1) and 402(h) of this act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate in "employment" as defined in this act.
Claimant was assisted before the Referee by a paralegal from Neighborhood Legal Services of Pittsburgh.
2. The Claimant asserts that he was required to violate Department of Transportation Regulations as to the number of hours that he was permitted to drive before taking a rest.
3. The Employer did not require that the Claimant violate Department of Transportation Regulations[;] to the contrary, it specified rest periods be taken in concert with the Regulations and provided drivers working out of town with $130.00 per day for expenses, including $100.00 for a hotel.
4. The Claimant did not ever bring concerns about being required to violate the Department of Transportation Regulations to the attention of the Employer.
5. [On] September 18, 2012, the Claimant was driving a company vehicle which the President of the entity asserts he was aware he was not authorized to use.
6. The vehicle was rear ended.
7. The Claimant asserts that he suffered a lower back injury which precluded him from working for six (6) weeks.
8. The Claimant filed a Workers['] Compensation Claim which was denied.
9. Part of the reason cited to the Claimant for the denial of the claim was that it was found he had been operating a vehicle he was not authorized to use.
10. There is a document in the record from a healthcare provider dated November 14, 2012, which includes the following: "This letter is in regards to my patient Mr. Jerome Kundus. He was
seen in my office on October 8, 2012 and was to be off work for three (3) weeks. He was able to return to work on October 29, 2012 . . ."(FOF ¶¶ 2-14.) The Referee affirmed the Service Center's determination in finding Claimant ineligible for UC benefits under Section 402(b) of the Law because Claimant did not meet his burden to prove that he voluntarily quit his employment due to a necessitous and compelling cause. The Referee also did not find that Employer ever indicated, expressly or implicitly, that Claimant should violate the Department of Transportation (DOT) regulations. The Referee further reasoned that Claimant neither demonstrated that his working conditions had become intolerable and that any reasonable and prudent person in similar circumstances would have felt no option but to resign, nor that the denial of his workers' compensation claim was unjust, inappropriate, or so serious as to provide him with a necessitous and compelling reason for severing the employment relationship. The Referee also noted that a claimant in such circumstances must generally exhaust all alternatives to preserve the employment relationship, but by failing to bring any concerns about the DOT regulations to Employer's attention before quitting his employment, Claimant did not exhaust all alternatives. The Referee further concluded that Claimant did not meet the requirements of Section 401(f) of the Law by earning an amount equal to or in excess of six times his weekly benefit rate subsequent to his separation from work because there was no testimony or evidence to dispute this finding by the Service Center.
11. The Claimant considers that "[t]he last straw" was the denial of the Workers['] Compensation Claim and he resigned employment.
12. [On] October 22, 2012, the Claimant notified the Employer by email of the following, ". . . I want you to know that as of October 28, 2012, I will not be returning to work at Glenshaw. I put a personal letter to Ken (the President of the entity) in the mail this morning . . . ."
13. The Claimant's weekly benefit amount is $490.00.
14. The Claimant earned $144.00 in continuing employment subsequent to his separation from Glenshaw Distributors.
In this appeal, Claimant is not challenging the determination that he is ineligible under Section 401(f) of the Law.
Claimant appealed the Referee's Decision to the Board, attached evidence in support of Claimant's position that was not submitted before the Referee, and raised additional issues for the first time, such as having a lack of time to prepare for the Referee hearing. (Petition for Appeal at 3-5, R. Item 13.) The Board adopted and incorporated the Referee's findings of fact and conclusions of law as its own and affirmed the Referee's Decision holding that Claimant was ineligible for benefits under Section 402(b). The Board resolved all conflicts in the testimony in favor of Employer.
Claimant requested reconsideration from the Board and attached numerous documents, including emails, timelines prepared by Claimant, telephone records, handwritten logs and notes, etc., that are not in evidence in this case. (Request for Reconsideration, R. Item 15.) The Board denied the request by Order dated April 10, 2013. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Because the Board is the ultimate fact finder and entitled to make its own determinations as to witness credibility and evidentiary weight, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1388 (1985), this Court will not disturb those findings if they are supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa.Cmwlth. 2008). Moreover, the prevailing party below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id. at 343.
Relying upon Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005), Claimant contends that Employer's attempt to deny his workers' compensation claim produced real and substantial pressure to terminate his employment after he was involved in a work-related accident, but was left to "fend for [him]self in all aspects of [his] injury, treatment and recovery." (Claimant's Br. at 10.) Claimant maintains that no reasonable person would accept Employer's failure to authorize the medical care and treatment Claimant needed as a result of his work-related injury or Employer's false allegation that Claimant was not authorized to drive Employer's vehicle. Claimant maintains that he acted as any reasonable person would by not continuing to work for an employer who would treat an employee in this manner—denying his workers' compensation claim and "fighting [him] tooth and nail." (Claimant's Br. at 11.) Claimant notes that the ultimately successful resolution of his workers' compensation claim further evidences that he acted reasonably in quitting. Claimant also argues that, when he explained to Employer that he could not do what Employer required on his trips to Washington, D.C. without violating DOT regulations, this showed his reasonable attempt to preserve his employment.
In Collier Stone Co., 876 A.2d at 484, the Court held that the claimant did not need to notify employer of every incident of sexual harassment, but must give the employer an opportunity to understand the nature of the complaints and to take steps to resolve the harassment. Substantial evidence existed to support the Board's finding in Collier Stone Co. that the harassment continued unabated after the claimant reported the incidents to employer.
Included with Claimant's brief is a copy of a workers' compensation decision and order by Workers' Compensation Judge (WCJ), David B. Torrey, dated May 11, 2013 (two months subsequent to the decision issued by the UC Board). Although Claimant's workers' compensation adjudication and decision is that of another tribunal issued subsequently to the UC proceedings below involving different legal issues, we may take judicial notice of its existence because "[c]ourts take judicial notice of matters of common knowledge," but we do not take judicial notice of the facts determined by a different tribunal in subsequent proceedings with different legal issues. Kyu Son Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 877 (Pa. Cmwlth. 2008). In the workers' compensation decision, the WCJ granted Claimant's claim petition for Claimant's injuries from September 20, 2012 through October 28, 2012 as a result of what the WCJ determined was a work-related automobile accident. The WCJ further ordered reasonable and necessary medical treatment expenses causally connected to the work injury, attorney's fees to Claimant's attorney and reimbursement of litigation costs. (WCJ Decision/Order at 6.)
In the Statement of Questions Involved section of his brief to this Court, Claimant presents the issue that his constitutional rights were violated by not having adequate representation or enough time to prepare for the UC hearing. (Claimant's Br. at 6.) However, Claimant does not address this issue in the argument section of his brief. Therefore, this issue is waived pursuant to Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2119(a) (requiring the argument section of a party's brief "be divided into as many parts as there are questions to be argued" and include "such discussion and citation of authorities as are deemed pertinent"). See City of Philadelphia v. Berman, 863 A.2d 156, 161 (Pa. Cmwlth. 2004) (holding that a party's failure to develop an issue in the argument section of his or her brief constitutes waiver of the issue).
Claimant also seemingly contends that his ultimate success in his workers' compensation claim, approximately two months after the UC Board's Order, should automatically entitle him to UC benefits. However, the legal issues in workers' compensation are different from the legal issues in UC cases; therefore, Claimant's successful outcome in his workers' compensation case does not compel a successful outcome in his UC case.
Pursuant to Section 402(b) of the Law, a claimant is ineligible for benefits if he voluntarily terminates his employment without cause of a necessitous and compelling nature. 43 P.S. § 802(b). The claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). It is well settled that:
[a]n employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve [his] employment.Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).
Here, there is no question that Claimant was dissatisfied with how Employer handled his workers' compensation claim as evidenced by Claimant's testimony that when he learned that Employer was refuting his workers' compensation claim, this "was the final straw" for him. (Hr'g Tr. at 6.) However, an employer's contest of an employee's workers' compensation claim, without more, is not sufficient to constitute a necessitous and compelling reason to quit, though it may cause an employee frustration and dissatisfaction. The law is clear that mere dissatisfaction with one's working conditions does not constitute cause of a necessitous and compelling nature to quit one's employment and still maintain eligibility for UC benefits. Id. at 660. And, although Claimant further contends that he "could not return to the lies, deceit, abuse, that [Employer] was giving [him]," (Claimant's Br. at 8), Claimant did not provide any evidence of these allegations other than his testimony, which the Board did not find credible.
Although "abusive conduct" may "represent adequate justification to terminate one's employment [so] that [a] claimant need not be subjected to such conduct . . . indefinitely," Porco v. Unemployment Compensation Board of Review, 828 A.2d 426, 428 (Pa. Cmwlth. 2003), Claimant did not present any credible evidence of abusive conduct.
With regard to Claimant's additional contention that it was also necessitous and compelling that he quit because Employer was requiring him to violate DOT regulations "as to the number of hours that he was permitted to drive before taking a rest" during Claimant's trips to Washington, D.C., (FOF ¶ 2), the Board did not find Claimant credible. The Board credited Employer's testimony and found that "Employer did not require that the Claimant violate [DOT] Regulations[;] to the contrary, it specified rest periods be taken in concert with the Regulations and provided drivers working out of town with $130.00 per day for expenses, including $100.00 for a hotel." (FOF ¶ 3.) Therefore, Claimant failed to prove that this was a necessitous and compelling reason to quit. And, even if the Board's credibility determinations were different, the outcome would not change because Claimant would have been obligated to preserve his employment by exhausting all reasonable alternatives other than quitting, Brunswick Hotel, 906 A.2d at 662, and the Board found that Claimant did not do so because he did not bring these concerns directly to Employer's attention before quitting his job. (FOF ¶ 4.)
Accordingly, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 13, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge