Opinion
No. 1984 C.D. 2011
09-07-2012
Christopher Ruggiero, Sr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Christopher Ruggiero, Sr. (Claimant) petitions pro se for review of the August 15, 2011 order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision and held that Claimant was ineligible for unemployment compensation benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., PL (1937) 2897, as amended, 43 P.S. §802(b). Section 402 (b) of the Law provides that an employee is ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. The question of whether an employee has cause of a necessitous and compelling nature is a question of law subject to appellate review. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Claimant was employed by Philadelphia Mental Health Center (Employer) from April 2007 until June 20, 2010, when he voluntarily quit his job. On November 25, 2010, the local service center issued a Notice of Determination finding Claimant ineligible for unemployment compensation pursuant to section 402(b) of the Law. Claimant timely appealed, and, as reflected in a Notice of Hearing dated January 25, 2011, a referee scheduled a hearing for February 10, 2011. Claimant did not appear at the hearing; Joan Podell and Michael Taylor, Claimant's direct supervisor, testified on Employer's behalf.
Taylor testified that Claimant sent an email to Employer's executive director stating that Claimant was leaving his job because it was time to move on to new opportunities. (Record Item 9, 2/10/11 Notes of Testimony (N.T.) at 5; Exhibit E-1.) Taylor also testified that continuing work was available to Claimant had he not resigned. (Record Item 9, N.T. 2/10/11 at 6.)
The referee issued a decision based on the competent evidence presented by Employer and the documentary evidence of record. (Record Item 10.) The referee specifically found that on May 21, 2010, Claimant submitted a voluntary resignation stating that his path had taken a different direction and he felt it was time to move on. (Referee's Findings of Fact, No. 2.) The referee concluded that Claimant failed to meet his burden to demonstrate necessitous and compelling reason for leaving his employment and thus was ineligible for benefits pursuant to section 402(b) of the Law.
Claimant, who had moved to Florida, appealed to the Board, arguing in part that although he had provided his new address to the agency, he had not received notice of the hearing. (Record Item 11.) The Board remanded the matter to the referee for the purpose of taking evidence as to whether Claimant had just cause for his failure to appear at the referee's hearing and, if so, to hear further testimony on the merits of the case. (Record Items 12, 13.) The Board's April 8, 2011 hearing order reflected Claimant's new address, but notice of the Board-ordered remand hearing was sent to Claimant's old address, and Claimant's request for a continuance was granted.
The referee held a remand hearing on May 17, 2011, at which Taylor and Podell were present and Claimant testified via telephone. (Record Item 22.) That hearing was continued at Employer's request, and on June 28, 2011, the referee, acting as hearing officer for the Board, conducted the rescheduled remand hearing.
Claimant testified at the rescheduled remand hearing by telephone. Claimant stated that he notified the service center that he moved and filed a change of address online on January 14, 2011. The referee observed that the service center did not forward a change of address to the referee's office. Claimant further stated that he made three phone calls to the referee's office attempting to confirm the change, and on the third attempt he left a message on the machine. Claimant asserted that despite these efforts he was not properly notified of the original hearing and thus he had good cause for not appearing. (Record Item 27, 6/28/11 N.T. at 16, 17.)
Claimant also offered various reasons for leaving his employment. Claimant repeatedly stated that he felt compelled to leave his job because Employer took no action to alleviate various safety issues in the buildings that Claimant was responsible for maintaining. In addition, Claimant testified that he felt he had been placed in an adverse position because in his last performance evaluation, Taylor questioned Claimant's integrity by accusing Claimant of lying to a superior. (Record Item 27, 6/28/11 N.T. at 22, 28.)
Claimant also testified that the letter of resignation relied upon by Employer, an email dated May 21, 2010, from Claimant to Employer's executive director, was improperly admitted into evidence because Claimant's actual letter of resignation was sent to Taylor on or around May 4, 2010. Claimant added that he wrote the May 21 email to Employer's executive director, Kerry Ruggiero, as a mere courtesy because she is Claimant's sister-in-law. (Record Item 27, 6/28/11 N.T. at 23-24.)
Taylor testified that he did not have an email addressed to him regarding either Claimant's safety issues or Claimant's resignation. Taylor also stated that he and Claimant kept a weekly running list of building issues to be addressed. (Record Item 27, 6/28/11 N.T. at 37, 40.)
Following the remand hearing, the Board issued an order affirming the referee's decision that Claimant is ineligible for benefits under section 402(b) of the Law. The Board rejected Claimant's assertions that he had informed the referee's office of his change of address as not credible and based its decision on the testimony presented at the first hearing on February 10, 2011. The Board also rejected Claimant's testimony that he quit due to safety concerns and found that Claimant left his employment because he resented a reprimand and he wished to start his own business. Accordingly, the Board affirmed the referee's decision, adopting and incorporating the referee's findings and conclusions.
On appeal to this Court, Claimant lists five issues in his Statement of Questions Involved. However, Claimant fails to develop an argument with respect to these questions in the argument portion of his brief. We conclude that Claimant's failure to include analysis or relevant authority renders these issues waived on appeal.
Our scope of review in an unemployment compensation appeal 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.
The issues raised, as stated on page 7 of Claimant's brief, are as follows:
1. Was Claimant properly Noticed Pursuant to Regulations Governing Telephone Hearings Pa Code, title 34 Chapter 101 Subchapter E. Telephone Hearings §101.29?
2. Was the Referee required by law to inform Claimant of his right to object to telephone testimony prior to Hearing conducted on June 28[sic], 2011 pursuant to Regulations Governing Telephone Hearings Pa. Code, title 34 Chapter 101 Subchapter E. Telephone Hearings §101.31(a) and did this constitute a violation of subchapter E and Claimant[']s Due Process Rights?
3. Was the Referee required to inform Claimant of his right to a continuance in order to secure and present testimony or evidence from Referee's office workers as to whether or not Claimant contacted the Referee's office and left his change of address information on their answering machine?
4. Was Employer untimely in submissions of documents thus losing his right to be heard?
5. Did employer violate time rules governing submission of documents?
In City of Philadelphia v. Workers' Compensation Appeal Board (Grevy), 968 A.2d 830 (Pa. Cmwlth. 2009), we stated as follows:
[These questions] are not addressed at all in the Argument section of Employer's brief. We note that Pennsylvania Rule of Appellate Procedure 2119(a) requires that "[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Here,
Employer did not comply with the rule. Instead, Employer listed three questions (1, 2, & 3) together as headings in one part of its Argument and failed to address two of the questions . . . at all in the brief. In so far as Employer has not developed two of the questions . . . in its brief, they have been waived. See American Rock Mechanics, Inc. v. Workers' Compensation Appeal Board (Bik and Lehigh Concrete Technologies), 881 A.2d 54, 56 (Pa. Cmwlth. 2005) (concluding that the petitioner waived arguments that it raised in its statement of questions presented, but which it failed to properly develop in the argument section of its brief).Id. at 837 n.9. See also City of Philadelphia v. Berman, 863 A.2d 156 (Pa. Cmwlth. 2004) (issue is waived, even if it is raised in the statement of questions presented and summary of argument portions of a brief, if it is not developed in the argument portion of brief); Browne v. Commonwealth, 843 A.2d 429, 435 (Pa. Cmwlth. 2004) (at the appellate level, a party's failure to include analysis and relevant authority results in waiver); 2 G. Ronald Darlington et al., Pennsylvania Appellate Practice §2119.4 (2d ed. 2002) (issue is waived if no relevant authority is cited).
Moreover, even if these issues had not been waived, Claimant would not prevail on appeal. The record reflects that Claimant had a full and fair opportunity to present evidence concerning his reasons for quitting, and the Board rejected Claimant's testimony that he quit due to safety concerns. The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383 (1985). Thus, issues of credibility are reserved for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988). Because the Board rejected Claimant's testimony as not credible, Claimant did not satisfy his burden to prove a necessitous and compelling reason to quit as required by section 402(b) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of September, 2012, the order of the Unemployment Compensation Board of Review, dated August 15, 2011, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge