Opinion
No. 2486 C.D. 2011
09-07-2012
Tamer Turgun, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Tamer Turgun (Claimant), pro se, petitions for review of the November 17, 2011, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to deny unemployment benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law states that an employee shall be 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 UCBR, incorporating the referee's findings of fact and conclusions of law in their entirety, found as follows. Claimant worked for Newalta Environmental Services (Employer) until March 30, 2011. (UCBR's Findings of Fact, No. 2.) Claimant was scheduled to work on March 31, 2011, but did not report for work. (UCBR's Findings of Fact, No. 4.) Employer did not hear from Claimant. (UCBR's Findings of Fact, No. 5.) Employer unsuccessfully attempted to contact Claimant for ten days and determined that he had quit. (UCBR's Findings of Fact, No. 6.)
Claimant applied for unemployment compensation benefits with the local job center, which determined that he was ineligible for benefits under section 402(b). Claimant appealed to a referee. Despite being notified about the time, date, and place of the referee's hearing, Claimant did not appear. (UCBR's Op., 11/17/11, at 1.) At the hearing, two representatives from Employer testified that Claimant failed to report for work on March 31, 2011. Because Claimant did not present any contrary testimony, the referee determined that Claimant resigned and denied unemployment benefits.
Claimant appealed the decision to the UCBR. In his appeal, he attached a notarized statement from a co-worker, stating that Claimant had been terminated (and had not resigned), and work schedules that were not part of the record before the referee. The UCBR did not consider the evidence submitted by Claimant because Claimant did not establish proper cause for his failure to appear at the referee's hearing. The UCBR affirmed the referee's decision. This appeal followed.
The schedules include the weeks of March 31, 2011, to April 7, 2011, and April 7, 2011, to April 14, 2011.
Our 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.
Claimant argues that the UCBR erred in finding that he quit his position and did not have a necessitous and compelling reason for leaving employment. We disagree.
The UCBR did not file a brief.
In a voluntary termination case, the claimant has the burden of proving that he or she had a necessitous and compelling cause for leaving employment. Ganter v. Unemployment Compensation Board of Review, 723 A.2d 272, 273-74 (Pa. Cmwlth. 1999). Additionally, it is the claimant's burden to prove the precise nature of the separation when the issue is in dispute. Cruz v. Unemployment Compensation Board of Review, 531 A.2d 1178, 1179 (Pa. Cmwlth. 1987). Lastly, the UCBR's findings of fact are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
Here, the burden rested on Claimant to prove that his voluntary resignation was actually a forced termination or that a necessitous and compelling cause forced him to resign. The UCBR determined that Claimant resigned voluntarily based on the uncontested testimony of Employer. Furthermore, Claimant presented no evidence indicating cause of a necessitous and compelling nature. We, therefore, conclude that the UCBR's findings are supported by substantial evidence.
The UCBR appropriately limited its examination to the record before the referee and did not consider the work schedules attached to the appeal because Claimant did not establish proper cause for missing the referee's hearing. See Ortiz v. Unemployment Compensation Board of Review, 481 A.2d 1383, 1386 (Pa. Cmwlth. 1984) (requiring the UCBR to make a determination using the record before the referee if claimant's absence at the referee's hearing was not excused by "proper cause"). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 7th day of September, 2012, the order of the Unemployment Compensation Board of Review, dated November 17, 2011, is affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge