Opinion
No. 257 C.D. 2012
12-28-2012
Gail N. Paulus, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gail N. Paulus (Claimant) petitions for review, pro se, of the Unemployment Compensation Board of Review's (Board) December 28, 2011 deemed denial of her Request for Reconsideration (Reconsideration Request) of the Board's order denying Claimant unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law). Because the Board did not abuse its discretion in denying Claimant's Reconsideration Request, 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, in relevant part, that a person shall be ineligible for compensation for any week "[i]n which h[er] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant worked as a floor manager/sales consultant for Bridaltown of America (Employer) until she resigned on May 24, 2011. Claimant applied for UC benefits alleging that she had a good reason for leaving her job because a co-worker/employee physically and verbally abused her and Employer did nothing about the abuse when told. (Claimant Questionnaire, R. Item 2.) The Allentown UC Service Center found Claimant ineligible for benefits under Section 402(b) of the Law, and Claimant appealed. (Notice of Determination, R. Items 5; Claimant's Petition for Appeal, R. Item 6.) A UC Referee held a hearing at which Claimant and a number of witnesses for Employer testified. The Referee reversed the Service Center's determination and held that Claimant was not ineligible for benefits. Employer appealed to the Board. (Employer's Petition for Appeal, R. Item 14.) By Opinion and Order dated November 9, 2011, in which the Board made its own findings of fact and conclusions of law, the Board reversed the Referee's decision and concluded that Claimant did not have cause of a necessitous and compelling nature for voluntarily quitting her position with Employer. Accordingly, the Board found that Claimant was ineligible for benefits pursuant to Section 402(b) of the Law.
In its November 9, 2011 decision, the Board found that Claimant was ineligible for UC benefits because, inter alia, she quit her position due to job dissatisfaction and did not take reasonable steps to maintain her employment relationship. (Board Op. at 3.) In so holding, the Board found, based on Employer's witnesses' testimony, that the co-worker did not hit Claimant, but merely touched her on the shoulder to get Claimant's attention and that Claimant did not inform Employer of any alleged abuse, but only discussed an argument she had with her co-worker. (Board Findings of Fact ¶¶ 5, 12; Board Op. at 3.) Accordingly, the Board concluded that Claimant did not establish a necessitous and compelling reason for quitting her employment. (Board Op. at 3.)
Claimant filed her Reconsideration Request with the Board on November 28, 2011, which, due to the closure of the government offices for Thanksgiving, was timely. (Request for Reconsideration, R. Item 20.) The Board acknowledged receipt of Claimant's Reconsideration Request on November 28, 2011, and informed Claimant that her request did not relieve her of any responsibility to appeal the Board's November 9, 2011 order to this Court within thirty days of that order. (Letter from Board to Claimant (November 28, 2011), R. Item 20.) The Board did not rule on Claimant's Reconsideration Request by December 28, 2011 and, therefore, it was deemed denied pursuant to Section 35.241(d) of the General Rules of Administrative Practice and Procedure. 1 Pa. C.S. § 35.241(d) (stating "[u]nless the agency head acts upon the application for rehearing or reconsideration within 30 days after it is filed, or within the lesser time as may be provided or prescribed by law . . ., the application shall be deemed to have been denied.") Nevertheless, the Board issued an order on January 9, 2012 denying Claimant's Reconsideration Request. Claimant filed a Petition for Review with this Court on January 30, 2012.
The Board acknowledges that its January 9, 2012 order had no legal effect. (Board's Br. at 2 n.2)
The Board filed a Motion to Quash Claimant's Petition for Review as being an untimely appeal of the Board's November 9, 2011 decision on the merits of Claimant's UC claim. By order dated June 7, 2012, this Court denied the Board's Motion to Quash, but limited the issue on appeal to the Board's denial of reconsideration, reasoning that Claimant's Petition for Review was timely filed from the Board's deemed denial of Claimant's Reconsideration Request. Claimant, thereafter, filed her brief to this Court. The Board filed a Motion to Strike Claimant's Brief and Dismiss Her Appeal on September 5, 2012, asserting that, because Claimant's brief and Petition for Review referred only to issues involving the merits of the denial of benefits, Claimant had waived the issue of whether the Board abused its discretion by denying Claimant's Reconsideration Request. By order entered September 27, 2012, we denied the Board's requested relief and indicated that Claimant had preserved issues reviewable by this Court.
The sole issue before this Court is whether the Board abused its discretion in denying Claimant's Reconsideration Request. Section 101.111 of the Board's regulations governs requests for reconsideration and provides, in pertinent part, that "any aggrieved party may request the Board to reconsider its decision." 34 Pa. Code § 101.111(a). A reconsideration request "will be granted only for good cause in the interest of justice without prejudice to any party." 34 Pa. Code § 101.111(b). This Court has previously explained that:
The Board again argues, as it did in its Motion to Quash and Motion to Strike Claimant's Brief and Dismiss Her Appeal, that Claimant has waived any issues related to whether the Board abused its discretion in denying reconsideration by not including that issue in her Petition for Review and brief to this Court on appeal. Because our Court already disposed of these arguments in the June 7, 2012 and September 27, 2012 orders denying the Board's requested relief, we will not revisit these arguments. --------
[b]ecause the decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court's review of that decision is limited to determining whether the Board abused its discretion. Georgia-Pacific Corporation v. Unemployment Compensation Board of Review, . . . 630 A.2d 948 ([Pa. Cmwlth.] 1993). An abuse of discretion occurs if the Board's decision demonstrates evidence of bad faith, fraud, capricious action or abuse of power. Id. In addition, the Board's own regulations provide that it
may grant a request for reconsideration and rehearing only where there is "good cause" to do so and that ruling is subject to review by this Court. 34 Pa. Code § 101.111; Bennett v. Unemployment Compensation Board of Review, . . . 470 A.2d 203 ([Pa. Cmwlth.] 1984). In determining whether "good cause" exists, the Board must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether it failed to consider relevant law. Georgia-Pacific Corporation[, 630 A.2d at 952-53].Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999). The party asserting that the Board abused its discretion has the burden of proof. Georgia-Pacific Corporation, 630 A.2d at 951.
In the Reconsideration Request, Claimant asserted that the Board ignored and capriciously disregarded certain testimony of a second co-worker, who indicated that she saw her co-worker hit Claimant, which supported Claimant's version of the facts. Moreover, Claimant asserted that she "was more than dissatisfied with [her] working conditions" because Employer's president called Claimant a liar when she complained of the incident and did nothing about the situation. (Reconsideration Request at 3.) Based on that response, Claimant contended that "a reasonable person [would] feel that the boss is not going to believe anything they had to say." (Reconsideration Request at 4.)
Claimant does not directly address whether the Board abused its discretion in denying reconsideration of its November 9, 2011 decision on the merits in her brief filed in support of this appeal. Rather, Claimant asserts that the Board's decision finding her ineligible for benefits was erroneous because she and a co-worker testified as to the abuse Claimant experienced and, therefore, the Board's determination that no abuse occurred was in error. (Board Op. at 3.) Claimant argues that, for this reason, the Board committed an error of law in concluding that she did not have cause of a necessitous and compelling nature for voluntarily leaving her job. Essentially, Claimant is challenging the merits of the Board's November 9, 2011 decision and the Board's choice to credit a version of events differently than how Claimant viewed them. However, the Board's decision on the merits is not before this Court because Claimant did not appeal that order within the time allowed. In our June 7, 2012 order, this Court permitted Claimant to continue with her appeal, but limited the appeal to the issue of whether the Board abused its discretion in denying the Reconsideration Request, as the appeal from the deemed denial was timely. It is well-settled that the Board may not grant reconsideration merely to visit credibility issues. Ensle, 740 A.2d at 779-80. Moreover, there is nothing in the Reconsideration Request that suggests that Claimant "presented new evidence or changed circumstances or [argued that the Board] failed to consider relevant law" to establish the good cause necessary to support reconsideration. Georgia-Pacific Corporation, 630 A.2d at 952-53. Because Claimant essentially argues that the Board erred in not agreeing with her characterization of the evidence, she has failed to establish that the Board abused its discretion in denying reconsideration. Thus, we must uphold that denial.
Moreover, even if Claimant had timely appealed the Board's November 9, 2011 order, her argument that the Board erred in finding her ineligible for UC benefits would not prevail. The Board specifically found, based on the co-worker's testimony, that Claimant's co-worker merely tapped Claimant on her shoulder to get Claimant's attention when Claimant was ignoring the co-worker. (Board Findings of Fact (FOF) ¶¶ 3, 12.) Based on this testimony, the Board concluded that no abuse occurred. Additionally, the Board specifically credited Employer's president's testimony that Claimant only told him about an argument between Claimant and her co-worker and did not inform him of any alleged abuse. (FOF ¶ 5; Board Op. at 3.)
The Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight" are matters for the Board, not a reviewing court. Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). Moreover, that the claimant may have testified to "a different version of the events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). 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). A witness's credible testimony may provide substantial evidence for a factual finding. See Holt v. Unemployment Compensation Board of Review, 840 A.2d 1071, 1072-73 (Pa. Cmwlth. 2004) (citing witnesses' testimony as substantial evidence for a finding of the Board). Here, the Board accepted co-worker's testimony that she did not hit or abuse Claimant, but merely tapped Claimant on the shoulder to get Claimant's attention and Employer's president's testimony that Claimant never told him about any alleged abuse. This testimony supports the Board's conclusions that Claimant was not abused and that, absent this excuse, Claimant did not have cause of a necessitous and compelling nature to voluntarily resign from her position.
For the foregoing reasons, the Board's deemed denial of Claimant's Reconsideration Request is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 28, 2012, the Unemployment Compensation Board of Review's deemed denial of the Request for Reconsideration of its November 9, 2011 order entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge