Opinion
No. 2399 C.D. 2013
10-15-2014
Marcy Miksic, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Marcy Miksic (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under Section 402(b) of the Unemployment Compensation Law (Law). In doing so, the Board affirmed the Referee's decision that Claimant quit her employment without a necessitous and compelling cause when she resigned from her job in order to care for her dying mother because she did not explore alternative arrangements. We reverse and remand.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) states, in relevant part, that
[a]n employe shall be 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[.]43 P.S. §802(b).
Claimant was employed by QVC, Inc. (Employer) as an on-call set dresser from September 2007 to April 11, 2013. On April 12, 2013, Claimant took a six-month leave of absence to care for her terminally ill mother. Claimant formally resigned on July 31, 2013, once it became apparent her six-month leave would be insufficient to care for her mother and applied for unemployment compensation. The Altoona UC Service Center denied her application, finding that Claimant was not available for work and, therefore, ineligible under Section 401(d)(1) of the Law. Claimant appealed, and a telephone hearing was scheduled for July 22, 2013. Due to technical difficulties at the Referee's office, he was unable to establish a telephone connection with Claimant. Employer did not participate. The Referee reviewed the record and affirmed the determination of the UC Service Center. Claimant appealed to the Board, which remanded the matter to the Referee to act as the Board's hearing officer. The remand hearing was held on October 9, 2013. Claimant appeared and testified; Employer did not participate.
Section 401(d)(1) states, in relevant part:
Compensation shall be payable to any employe who is or becomes unemployed, and who ... [i]s able to work and available for suitable work[.]43 P.S. §801(d)(1).
Claimant testified that on April 11, 2013, she learned that her mother had been diagnosed with Creutzfeldt-Jakob Disease (CJD), a rare and incurable brain disease. Claimant's mother was given approximately six months to live. Although Claimant's mother could still take care of herself, her health was expected to deteriorate rapidly. Immediately upon learning of the diagnosis, Claimant requested a six-month leave of absence to relocate and care for her mother, who lived 230 miles away. Employer granted her request. After several months, Claimant realized that her mother would live longer than the time remaining in Claimant's six-month leave. Accordingly, Claimant resigned on July 31, 2013. Claimant did not request additional leave under the Family and Medical Leave Act (FMLA) because she assumed that, as an on-call employee, she did not qualify. By the time of the Referee's hearing, which was six months after her mother's diagnosis, Claimant's mother was able to take care of herself and expected to live another three months.
Family and Medical Leave Act of 1993, 29 U.S.C. §§2601-2654.
The Board held that Claimant was ineligible for unemployment benefits under Section 402(b) of the Law because she lacked a necessitous and compelling cause for resigning her job. The Board reasoned that "[a]t the time [Claimant] left her employment, [Claimant's] mother did not require [Claimant's] care." Board Adjudication at 2. The Board further explained that "prior to leaving her employment, [Claimant] failed to take steps to explore alternative options for her mother and did not consider relocating her mother." Id. Claimant now petitions for this Court's review.
Because the Board found Claimant ineligible under Section 402(b), the Board did not consider Claimant's eligibility for benefits under Section 401(d)(1).
On appeal, Claimant contends that the Board erred in concluding that she lacked a necessitous and compelling reason to resign. According to Claimant, the terminal diagnosis of her mother placed a real and substantial pressure on Claimant, requiring her immediate separation from her employment. Claimant argues that a reasonable person with ordinary common sense would have resigned under the same circumstances. Furthermore, Claimant argues that she did take reasonable steps to preserve her employment by requesting leave. She resigned only after she realized she would need more time than her allotted leave. She did not request additional time because she believed, mistakenly, that she did not qualify for leave under the FMLA.
On review, this Court must determine whether the Board's decision is supported by substantial evidence, errors of law were committed, or constitutional rights were violated. Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987).
Claimant also argues that Section 402(b) of the Unemployment Compensation Law was repealed on May 22, 1933, and, therefore, is inapplicable to her. Claimant confuses Section 402 of the Law with 43 P.S. §402. To shed some light on Claimant's understandable, but mistaken argument, we take this opportunity to briefly explain the source of Claimant's confusion. Pennsylvania does not publish its own laws. Once our legislature has passed a law (designated by a Public Law number and date), the law is sent to an independent publisher for printing and distribution. This publisher is Purdon's. The first page of every title of Purdon's bears the following explanation for discrepancies between the legislative section numbers assigned by our legislature and the Purdon's section numbers assigned by the publisher to the same laws:
Pennsylvania legislation has been partially consolidated and codified as part of the program initiated by Act 1970, Nov. 25, P.L. 707, No. 230. Consequently, statutory sections are designated as either Pa.C.S.A. (Purdon's Pennsylvania Consolidated Statutes Annotated) under numbers assigned legislatively, or P.S. (Purdon's Pennsylvania Statutes Annotated) under numbers assigned by the publisher.Purdon's, Pennsylvania Statutes and Consolidated Statutes Annotated, Title 43 at 1 (2009). Thus, because the Unemployment Compensation Law has not been consolidated by our legislature, the numbers assigned by the publisher of Purdon's dictates the citation of the law. Tradition encourages lawyers and the judiciary to refer to laws according to the name and section assigned by our legislature, while concurrently citing the Purdon's location so that others may find the law's published location. As such, 43 P.S. §402 is unrelated to Section 402 of the Unemployment Compensation Law. --------
A claimant who voluntarily resigns her employment bears the burden of showing that she resigned for a necessitous and compelling reason. Moore v. Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987). A claimant can meet this burden by showing
that circumstances existed which produced real and substantial pressure to terminate employment; such circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve her employment.Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). This Court has explained that when the claimant is resigning to care for a chronically ill parent, the claimant must show that she
has given the employer an opportunity to accommodate [her], has explored alternative options for care of the parent, or has considered the possibility of relocating the parent so that [she] can continue [her] employment.Draper v. Unemployment Compensation Board of Review, 718 A.2d 383, 385 (Pa. Cmwlth. 1998).
In Draper, the claimant's mother, age 95, became ill while she was living in Virginia with the claimant's sister. When this living arrangement ended, the claimant quit his job in Pennsylvania and moved to Virginia. There, he purchased a home in which to care for his mother. This Court held that the claimant was ineligible for unemployment benefits, reasoning as follows:
[W]e find it likely that [the claimant] did in fact move to Virginia primarily because he wanted to take care of his ill mother, and such a commitment is certainly laudable. However, this does not entitle [the claimant] to unemployment compensation benefits absent evidence that [the claimant] explored other options less drastic than quitting his job, such as purchasing a home in Pennsylvania in which to care for his mother or asking [the employer] for a leave of absence or some other accommodation. Had [the claimant] presented evidence that he explored such options and found them to be fruitless, then his termination of employment and move to Virginia might have been found "necessitous and compelling."Draper, 718 A.2d at 385-86 (emphasis added). Because the claimant did not show he had no choice but to resign, he did not establish a necessitous and compelling reason to terminate his employment.
In contrast to Draper, this Court allowed benefits in James v. Unemployment Compensation Board of Review, 449 A.2d 791 (Pa. Cmwlth. 1982). In James, the claimant was granted a six-month, unpaid leave of absence to care for her ill mother. At the end of the six months she requested an extension of her leave time because, by that point, her mother's illness had become terminal. The employer denied the claimant's request because it would exceed the maximum amount of leave it allowed. Because the claimant could not return to work, she resigned. The claimant's mother died four days after the claimant's resignation. In holding that the claimant was eligible for benefits under Section 402(b), we explained that
[t]here are many instances where the care of an ill family member can be shouldered by another; however, no one can stand in another's shoes at the bedside of a close relative who is in extremis. This is a task one must carry alone. The claimant's employer was generous in affording her as much extended leave time as its policies and priorities permitted, and when it could not afford her further time, the choice of whether or not to return to work then fell to her.James, 449 A.2d at 792-93 (emphasis added). Stated otherwise, attending to a dying parent constitutes a necessitous and compelling cause for resignation.
The facts in this case are not identical to either Draper or James. As in James, Claimant's mother is terminally ill. She was expected to die within six months of her diagnosis, which is why Claimant immediately sought six months of leave. When it became clear that her mother would live longer than her allotted leave, Claimant resigned. As of the Referee hearing in October 2013, Claimant's mother was expected to die in three months. As in James, Claimant had requested, and received, leave, which then turned out not to be long enough. In Draper, the claimant moved to Virginia, where he bought a house in which to care for his 95-year-old mother. Although the claimant's mother was quite elderly and sick in Draper, the record did not indicate that death was expected within months. The claimant did not explain why he could not have moved his mother into a house in Pennsylvania and made arrangements for her care here, and he did not ask for a leave of absence. We noted that had his request for leave been denied, his move to Virginia may have constituted a necessitous and compelling reason to leave.
James stands for the proposition that, with or without leave, a child who wishes to care for a dying parent has a compelling reason to resign. There is no question that Claimant's mother is terminal and close to death, and this Court has held this is a type of compelling pressure that will prompt a reasonable person to leave a job. James, 449 A.2d at 792-93. Under James, a claimant does not have to explore alternative arrangements for a dying parent's care because "no one can stand in another's shoes at the bedside of a close relative who is in extremis." James, 449 A.2d at 793. Claimant, unlike the claimant in Draper, had requested leave but, as in James, the amount of leave turned out to be inadequate.
This is a close case. However, the facts in this case more closely fit James than Draper. Given the holding in James, which was neither discussed nor overruled by Draper, we will reverse the decision of the Board denying Claimant benefits under Section 402(b) of the Law.
Having determined that Claimant is eligible for benefits under Section 402(b) of the Law, we are unable to say whether Claimant is eligible for unemployment benefits under Section 401(d)(1) of the Law because the Board declined to make factual findings on that issue. Accordingly, we remand this case to the Board to address whether Claimant is eligible for benefits under Section 401(d)(1) of the Law.
/s/_________
MARY HANNAH LEAVITT, Judge Judge Brobson concurs in the result only. ORDER
AND NOW, this 15th day of October, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated December 4, 2013, is hereby REVERSED and this matter is REMANDED to the Board to render additional findings and conclusions consistent with the Court's opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge