J.W. Fleming v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John W. Fleming, :
:
Petitioner :
:
v. : No. 513 C.D. 2021
: Submitted: May 6, 2022
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 9, 2023
John W. Fleming (Claimant) petitions for review of the order of the
Unemployment Compensation (UC) Board of Review (Board) that reversed the
decision of a Referee and denied Claimant UC benefits under Section 402(b) of the
Unemployment Compensation Law (Law).1 We affirm.
The Board’s relevant findings of fact2 may be summarized as follows.
See Certified Record (CR) Item No. 18 at 1-2, ¶¶1-15. Claimant was employed as a
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides, in pertinent 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 . . . .” Id.
2
The Board is the ultimate finder of fact in unemployment compensation proceedings.
Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1389 (Pa. 1985);
(Footnote continued on next page…)
part-time cleaner with Marmaxx Operating d/b/a Marshalls (Employer) until his
resignation on February 18, 2020. Claimant worked from 7:00 a.m. to 11:00 a.m.
and was paid $10.25 per hour. He was responsible for cleaning Employer’s fitting
room and service counter, mopping the store hallway, and discarding trash. Id. at 1,
¶¶1-3.
Employer had also contracted with a private cleaning company to clean
Employer’s bathroom and buff the floors. The two contracted cleaners typically
took one to two hours to perform these duties. In January of 2020, Employer told
Claimant that it would be terminating its contract with the private cleaning company
and that Claimant would have to take over the duties of cleaning the bathrooms and
buffing the floors. Claimant told his manager that he did not want to perform the
extra duties without a raise, and the manager told Claimant that he would talk to the
district manager about Claimant’s request. Approximately two weeks later,
Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth.
1988). Issues of credibility are for the Board, which may either accept or reject a witness’ testimony
whether or not it is corroborated by other evidence of record. Chamoun. This Court must examine
the evidence in the light most favorable to the party that prevailed before the Board, and to give that
party the benefit of all inferences that can be logically and reasonably drawn from that evidence.
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). Findings
of fact are conclusive on appeal if the record contains substantial evidence to support the findings. Id.The fact that a witness has presented a version of the facts different from that accepted by the
Board is not a basis 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).
“It is irrelevant whether the record contains evidence to support findings other than those made by
the fact-finder; the critical inquiry is whether there is evidence to support the findings actually
made.” Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d
338, 342 (Pa. Cmwlth. 2008) (citation omitted). As the burdened party with respect to establishing
good cause, Claimant had to meet both his burden of production and his burden of persuasion.
Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth.
1987). The Board was free to reject Claimant’s evidence regarding his good cause, even if it was
unrebutted. Carriers Terminal Company v. Unemployment Compensation Board of Review, 449
A.2d 873, 874 (Pa. Cmwlth. 1982).
2
Claimant’s manager told him that a raise in his hourly wage would not be provided,
and that he did not have a choice regarding the performance of the additional duties.
Claimant then performed his regular work duties, and observed another employee
operating a buffing machine. CR Item No. 18 at 1-2, ¶¶4-10.
On February 18, 2020, Claimant’s manager told Claimant that he was
“on his own,” and that he needed to clean the store and buff the floors. After the
manager’s message, Claimant started to perform his job duties, but then abruptly
resigned because he was dissatisfied with the added responsibilities without an
immediate raise in wages. CR Item No. 18 at 2, ¶¶11-13.
On April 5, 2020, Claimant submitted an online application for UC
benefits. See CR Item No. 2. On September 30, 2020, the Scranton UC Service
Center (UCSC) issued a Notice of Determination in which it found that Claimant
“has shown a necessitous and compelling reason for quitting his job,” and that he
“exhausted all reasonable alternatives prior to quitting.” CR Item No. 7 at 1. On
October 14, 2020, Employer submitted an appeal of the UCSC’s Notice of
Determination. See CR Item No. 8.
On March 1, 2021, a telephonic hearing was conducted before a Board
Referee.3 See CR Item No. 17 at 1-16. Claimant and Michelle Caruso, Employer’s
Store Manager, testified regarding Claimant’s separation from his employment. See
id. at 8-16. Ultimately, on April 12, 2021, the Board issued a Decision and Order
disposing of the appeal, which stated, in relevant part:
3
A prior hearing was conducted before a Board Referee on November 6, 2020, but
Employer did not appear. See CR Item No. 11 at 1-11. On November 9, 2020, the Referee issued
a Decision/Order affirming the UCSC’s Notice of Determination. See CR Item No. 12 at 1-3.
However, Employer appealed the Referee’s Decision/Order to the Board asking, inter alia, for a
new hearing. See CR Item No. 13. As a result, on January 21, 2021, the Board remanded the
matter for another Referee’s hearing, which was conducted on March 1, 2021. See CR Item No.
14. Claimant does not raise any appellate claims regarding the Board’s actions in this respect.
3
[C]laimant left his employment due to added
responsibilities without any increase in pay. It is
well[]settled that an employer’s imposition of a substantial
unilateral change in the terms of employment constitutes a
necessitous and compelling cause for an employee to
terminate his employment. Whether a change is so
substantial as to warrant necessitous cause for terminating
employment must be determined on a case-by-case basis.
Substantiality is measured by the impact on the employee,
and whether the change involves any real difference in
employment conditions.
***
The Board does not find that the added responsibilities
imposed a substantial change to [C]laimant’s existing
cleaning responsibilities. The Board does not credit
[C]laimant’s testimony that the added responsibilities
would require four hours of work, though he was only
provided one hour to perform them. Moreover, its clear
that [C]laimant was willing to take on the added duties,
provided he was given a raise. However, his discontent
with not getting an immediate raise would not sustain his
burden under the Law.
Lastly, [C]laimant failed to prove either that he acted with
ordinary common sense or made a reasonable effort to
preserve his employment, as he abruptly resigned before
undertaking the new tasks. [C]laimant did not prove that
he could not perform his duties within his work shift, or
that he voiced a complaint that it would be impracticable
until he resigned.
Considering the totality of the circumstances, [C]laimant
has failed to carry his burden to prove his voluntary
separation was for cause of a necessitous and compelling
nature. Therefore, he must be rendered ineligible for
benefits under Section 402(b) of the Law.
CR Item No. 18 at 3-4. Accordingly, the Board issued an order reversing the
Referee’s Decision/Order and denying UC benefits. See id. at 4.
4
This appeal by Claimant followed,4 in which his sole claim is that the
Board erred in reversing the Referee’s Decision/Order because: (1) the added job
responsibilities posed a substantial change to his work responsibilities; (2) he proved
that he would not be able to perform his work duties in the time provided; and (3)
he carried his burden to prove that his voluntary separation was for cause of a
necessitous and compelling nature. See Brief of Petitioner at 4, Statement of the
Question Involved.
However, the Argument for Petitioner portion of Claimant’s brief fails
to cite any relevant statutory authority or case law supporting a determination that
the Board made any of the foregoing legal errors.5 Pa. R.A.P. 2119(a) states, in
relevant part: “The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part . . . the particular point
treated therein, followed by such discussion and citation of authorities as are deemed
pertinent.” Claimant’s failure to develop any meaningful argument in his appellate
brief results in a waiver of any claims of Board error in this appeal. Indeed, as the
Pennsylvania Supreme Court has observed:
4
Our review of the Board’s decision 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. Middletown Township v. Unemployment Compensation Board
of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
5
Rather, Claimant’s brief contains numerous conclusory platitudes purportedly requiring
reversal of the Board’s order without citation to any actual legal support for doing so. See, e.g.,
Brief of Petitioner at 9 (“For the [Board] to find that [Claimant] ‘was dissatisfied with the added
responsibilities without an immediate raise’ is an affront to human dignity, let alone constitutional
rights.”); id. (“[]Employer . . . demanded that [Claimant] do more work, heavier work, and dirtier
work, for no increase in pay. No reasonable person, anywhere, would criticize a worker for
declining such an opportunity.”); id. at 10 (“On behalf of [Claimant], it is respectfully suggested
that no one who is involved in this case would want a family member or a close friend to be treated
in this way. The dignity of work should be respected, and human rights, even more than
constitutional rights, should be maintained at all times.”).
5
While [the a]ppellants protest that the Commonwealth
Court should not have sua sponte found waiver, our rules
of appellate procedure are explicit that the argument
contained within a brief must contain “such discussion and
citation of authorities as are deemed pertinent.”
Pa. R.A.P. 2119(a). “[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant
authority or fails to develop an issue in any other
meaningful fashion capable of review, that claim is
waived. It is not the obligation of [an appellate court] to
formulate [the] [a]ppellant’s arguments for him.”
Commonwealth v. Johnson, [985 A.2d 915, 924 (Pa. 2009)
(citations omitted)]. Moreover, because the burden rests
with the appealing party to develop the argument
sufficiently, an appellee’s failure to advocate for waiver is
of no moment. Connor v. Crozer Keystone Health
Sys[tem], 832 A.2d 1112, 1118 (Pa. Super. 2003).
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014).
Moreover, assuming that Claimant has not waived his appellate claims,
it is clear that the Board did not err in reversing the Referee’s Decision/Order. As
this Court has explained:
Necessitous and compelling reasons for terminating a
work relationship result from “circumstances which
produce pressure to terminate employment that is both real
and substantial, and which would compel a reasonable
person under the circumstances to act in the same
manner.” Taylor[, 378 A.2d at 832-33]. “An
unemployment compensation claimant must establish that
he acted with ordinary common sense in quitting his job,
that he made a reasonable effort to preserve his
employment and that he had no other real choice than to
leave his employment.” Malloy v. Unemployment
Compensation B[oard]of Review, [523 A.2d 834, 836 (Pa.
Cmwlth. 1987)].
***
We cannot agree that [the] claimant failed to
provide any facts and details to support her contention;
6
indeed, [the] claimant provided substantial evidence that
her responsibilities would increase. However, we must
agree that her fears concerning the amount of additional
work which would result from her increased supervisory
responsibilities was largely speculative at the time she
resigned. She never actually attempted the new position
and thus never determined how the overall workload
would be absorbed among the remaining staff. Therefore,
[the] claimant failed to prove that the job modifications
were unreasonable and rose to the level of circumstances
which would compel a reasonable person to terminate
employment. Accordingly, we agree with the Board’s
conclusion that [the] claimant failed to prove cause of a
necessitous and compelling nature to voluntarily terminate
her employment.
Unangst v. Unemployment Compensation Board of Review, 690 A.2d 1305, 1307-
08 (Pa. Cmwlth. 1997) (emphasis in original).6
By refusing to attempt to perform the additional duties of his position
for even a single shift, Claimant failed to act with ordinary common sense, failed to
6
See also PECO Energy Company v. Unemployment Compensation Board of Review, 682
A.2d 58, 61 (Pa. Cmwlth. 1996), wherein this Court stated:
In addition to showing the circumstances created by his
employer, a claimant must also demonstrate that his response to
those circumstances was reasonable. “In order to sustain that
burden, a claimant ‘must establish that he acted with ordinary
common sense in quitting his job, that he made a reasonable effort
to preserve his employment, and that he had no other real choice
than to leave his employment.’” Stroh–Tillman v. Unemployment
Compensation Board of Review, [647 A.2d 660, 662 (Pa. Cmwlth.
1994)] (quoting Malloy v. Unemployment Compensation Board of
Review, [523 A.2d 834, 836 (Pa. Cmwlth. 1987)]. Where an
employee has failed to take all necessary and reasonable steps to
preserve the employment relationship, he or she has failed to meet
the burden of demonstrating necessitous and compelling cause.
Westwood v. Unemployment Compensation Board of Review, [532
A.2d 1281, 1282 (Pa. Cmwlth. 1987)]; Redevelopment Authority of
Dauphin County v. Unemployment Compensation Board of Review,
[405 A.2d 1061 (Pa. Cmwlth. 1979)].
7
take all reasonable steps to preserve his employment, and failed to demonstrate that
he had no other real alternative than to quit his job. In sum, Claimant failed to sustain
his burden of proving that Employer’s modification of his duties was unreasonable
and, therefore, provided necessitous and compelling cause to terminate his
employment under Section 402(b) of the Law.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John W. Fleming, :
:
Petitioner :
:
v. : No. 513 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 9th day of February, 2023, the order of the
Unemployment Compensation Board of Review dated April 12, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge