M. Cortez v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Cortez, :
Petitioner :
:
v. : No. 776 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent : Submitted: March 24, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: May 30, 2023
Matthew Cortez (Claimant) petitions for review of the June 22, 2022 Order of
the Unemployment Compensation Board of Review (Board) affirming the decision
of a Referee to deny Claimant unemployment compensation (UC) benefits. The
Board determined that Claimant was ineligible for UC benefits under Section 402(b)
of the Unemployment Compensation Law (Law)1 because he voluntarily quit his
employment without cause of a necessitous and compelling nature. We affirm the
Board’s Order.
1
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 provides that an employee is ineligible for UC benefits 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).
Background
Claimant worked as a full-time team lead for Reading Truck Group, LLC
(Employer), from October 26, 2018, through April 16, 2021. Bd.’s Finding of Fact
(F.F.) No. 1. Claimant’s final rate of pay was $22.00 per hour. Id.
On March 27, 2021, Claimant attended a job fair and spoke with a
representative from Case New Holland Industrial (Case) about possible
employment. Id. No. 2. Thereafter, Claimant had an on-site interview at Case for a
full-time laser machine operator position that would pay $23.16 per hour. Id.
Following the interview, Claimant exchanged emails with Case and its human
resources department about possible employment. Id. No. 3.
On March 28, 2021, Claimant informed his supervisor that he was resigning
to accept a position with Case beginning on April 26, 2021. Id. No. 4. On April 1,
2021, Case reached out to Claimant for a second interview. Id. No. 5. Claimant had
his second interview on April 5, 2021, after which Case offered him a third-shift
laser machine operator position, contingent on him passing a drug screening test. Id.
No. 6.
On April 6, 2021, Claimant received confirmation that he was hired for the
position with Case. Id. No. 7. Case then moved Claimant’s start date to April 19,
2021, and Claimant moved his final date with Employer to April 16, 2021. Id. No.
8.
On April 19, 2021, after his final day with Employer, Claimant met with
Case’s human resources department and was told that Case was not ready to move
forward with his employment just yet. Id. No. 9. Two days later, on April 21, 2021,
Case informed Claimant that it was not moving forward with his employment due
to his criminal background check. Id. No. 10. On the same day, Claimant contacted
2
Employer to inquire about returning to work, but Employer told him there were no
available positions. Id. No. 11.
Claimant filed a claim for UC benefits, which the Department of Labor and
Industry (Department) denied. The Department determined that Claimant was
disqualified from receiving UC benefits under Section 402(b) of the Law because he
voluntarily “left [his] employment to seek other work.” Record (R.) Item No. 4.
The Department found that Claimant “only had a conditional job offer from [Case]”
before quitting and that his last day of work with Employer was April 15, 2021. Id.
Claimant appealed to the Referee, who held a telephone hearing on August
12, 2021. Claimant appeared with counsel and testified on his own behalf.
Employer did not appear at the hearing. Following the hearing, the Referee affirmed
the Department’s decision, concluding:
[C]laimant . . . credibly testified that he informed [E]mployer that he
was resigning on March 28, 2021 because he had an impression [that]
he would receive another offer of work and he was dissatisfied with a
recent performance review. The Referee finds that [C]laimant failed to
meet his burden of proof that he voluntarily left work for necessitous
and compelling circumstances since he did not have a bona fide offer
of other employment prior to submitting his resignation notice.
Ref.’s Order, 8/16/21, at 3 (emphasis added). Therefore, the Referee concluded that
Claimant was ineligible for UC benefits under Section 402(b) of the Law.
Claimant appealed to the Board, which issued its own findings of fact and
conclusions of law and affirmed the Referee’s decision. The Board concluded:
[C]laimant asserts that he had a firm offer of employment as of his last
day of work on April 16, 2021. However, the operative date is the day
the employee resigns, not his last day of work[.] See [Twp. of] N[.]
Huntingdon . . . v[. Unemployment Comp. Bd. of Rev.], 450 A[.]2d 768
(Pa[.] Cmwlth[.] 1982) (“[A]t the time [the c]laimant tendered his
resignation, the offer of employment was firm and [the c]laimant has
3
the ‘burden to prove that his justification for leaving his employment
continued to exist until at least the point in time when his resignation
took effect. . . .’”).
Because [C]laimant did not have a firm offer of employment when he
tendered his resignation, but only a possibility, [he] did not have
necessitous and compelling reasons for leaving his employment[.]
Bd.’s Order, 6/22/22, at 2-3 (emphasis added). Claimant now appeals from that
decision.2
Analysis
On appeal, Claimant asserts that the Board erred in concluding that he was
ineligible for UC benefits because the evidence established that he had a firm offer
of employment from Case when he separated from Employer on April 16, 2021. He
contends that the Board erroneously looked to his date of resignation, rather than the
date of his separation from Employer, in determining his eligibility for UC benefits.
We disagree.
“A claimant who voluntarily terminates his employment has the burden of
proving that a necessitous and compelling cause existed.” Solar Innovations, Inc. v.
Unemployment Comp. Bd. of Rev., 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). Our
Court has held that the receipt and acceptance of a firm offer of employment
constitutes cause of a necessitous and compelling nature. Id. A firm offer of
employment is one that contains the specific conditions of employment, such as
wages, hours, duties, and a starting date. Baron v. Unemployment Comp. Bd. of Rev.,
384 A.2d 271, 272 (Pa. Cmwlth. 1978). “The offer of employment, however, must
be definite, and the claimant must act prudently with regard to his employer.” N.
2
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the necessary factual findings are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
4
Huntingdon, 450 A.2d at 769 (footnotes omitted). While “the receipt and acceptance
of a firm offer of employment does constitute termination for cause of a necessitous
and compelling nature . . . [t]he mere possibility of obtaining another job is
insufficient to establish that employment was terminated for good cause.” Solar
Innovations, 38 A.3d at 1056-57 (emphasis added).
In determining whether the claimant had a firm offer of work justifying his
voluntary quit, our case law instructs that the operative date is the date the claimant
resigns, not the claimant’s last day of work. See N. Huntingdon, 450 A.2d at 770
(looking to the terms of the claimant’s offer of employment “at the time [the
c]laimant tendered his resignation” to determine if the offer was, in fact, definite)
(emphasis added); Unemployment Comp. Bd. of Rev. v. Pa. Power & Light Co., 351
A.2d 698, 700 (Pa. Cmwlth. 1976) (concluding that, based on the circumstances
surrounding his offer of employment at the time the claimant submitted his notice of
resignation, the test for necessitous and compelling cause was met); see also Lane
v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 576 C.D. 2014, filed Oct.
21, 2014), slip op. at 2-4 (affirming the denial of UC benefits where “[t]he Board
found that [the] ‘claimant ha[d] not credibly established that he had a firm offer of
other employment at the time he quit’” and where “‘[t]he claimant admit[ted] that
he tendered his resignation notice without having a start date for the other
employment’”) (quoting the Board’s decision) (emphasis added).3
Here, it is undisputed that Claimant tendered his resignation to Employer on
March 28, 2021, prior to his second interview with Case. Bd.’s F.F. No. 4; Notes of
Testimony (N.T.), 8/12/21, at 10. At the hearing, Claimant testified that Case did
3
Pursuant to this Court’s Internal Operating Procedure 414(a), 210 Pa. Code § 69.414(a),
unreported panel decisions of this Court, issued after January 15, 2008, may be cited for their
persuasive value.
5
not formally offer him a job until April 6, 2021, and even then, “[Case] told [him]
that there was going to be further things that [he] needed to get done. [He] needed
to be hired on full-time. [He] needed to . . . pass a urine screen.” N.T., 8/12/21, at
8-9. Based on Claimant’s own testimony, which the Board credited, the Board
properly concluded that at the time Claimant tendered his resignation to Employer
on March 28, 2021, he did not have a firm offer of employment with Case, but only
the possibility of employment.4
Conclusion
We conclude, based on the credible evidence of record, that the Board
properly determined that Claimant did not have a firm offer of employment with
Case at the time he resigned from his position with Employer. Therefore, we agree
with the Board that Claimant is ineligible for UC benefits under Section 402(b) of
the Law. Accordingly, we affirm the Board’s Order.
____________________________
ELLEN CEISLER, Judge
4
We also conclude that Claimant’s reliance on Brennan v. Unemployment Compensation
Board of Review, 504 A.2d 432 (Pa. Cmwlth. 1986), and Antonoff v. Unemployment Compensation
Board of Review, 420 A.2d 800 (Pa. Cmwlth. 1980), is misplaced, as those cases are factually
distinguishable. In Brennan, the Board found that the claimant, unlike Claimant in this case, had
received and accepted a firm offer of work prior to quitting her job with her employer. 504 A.2d
at 432-33. In Antonoff, in considering whether the claimant acted prudently toward his employer,
this Court held that if the claimant’s new job offer falls through before his last day of work, the
claimant must seek to rescind his resignation prior to his last day, a fact not present in this case.
420 A.2d at 801-02; see also Pa. Power & Light, 351 A.2d at 700 (holding the same).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Cortez, :
Petitioner :
:
v. : No. 776 C.D. 2022
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 30th day of May, 2023, the Order of the Unemployment
Compensation Board of Review, dated June 22, 2022, is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge