K. Peacock v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA_
Kim Peacock, :
Petitioner :
:
v. : No. 1735 C.D. 2018
Unemployment Compensation : Submitted: June 21, 2019
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 21, 2019
Petitioner Kim Peacock (Claimant), pro se, petitions for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed a decision of the Unemployment Compensation Referee (Referee), denying
Claimant unemployment compensation benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law), relating to voluntarily quitting without
cause of a necessitous and compelling nature.1 For the reasons set forth below, we
affirm.
Claimant worked as a part-time van driver for Student Transportation
of America of Pennsylvania, Inc. (Employer). (Certified Record (C.R.), Item
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(b).
No. 10.) Claimant last worked for Employer on June 1, 2018, and expected to return
to work on approximately August 27, 2018, for the upcoming school year. (C.R.,
Item No. 9 at 1.) Claimant applied for unemployment compensation benefits on
June 3, 2018. (C.R., Item No. 1 at 1.) The Altoona UC Service Center (Service
Center) found Claimant ineligible for unemployment compensation benefits for the
week ending September 1, 2018. (C.R., Item No. 4 at 1, Item No. 10 at 1.) The
Service Center denied Claimant benefits after concluding that “although the
Claimant had a necessitous and compelling reason for quitting, there were
alternatives to resolve the situation” prior to quitting her job. (Id.) Claimant
appealed the Service Center’s determination. (C.R., Item No. 5.) A referee
conducted a hearing, at which time Claimant offered several email conversations
between herself and Employer into evidence. (C.R., Item No. 9 at 7.) Both Claimant
and Employer presented testimony. (Id.)
Claimant testified she last worked for Employer on June 1, 2018. (Id.
at 3.) Claimant explained that, after determining that she would soon be moving to
North Carolina with her husband but did not yet know when her permanent move
would be, she asked Aaron Broman, Employer’s Operations Manager, in July 2018
if it was possible for her to go on “sub-status” and only be called in “as needed” for
the upcoming school year. (Id. at 3-4.) Mr. Broman informed Claimant that she
would be listed as a substitute driver for the upcoming school year and that she was
to keep him informed as to her moving situation. (Id.) Claimant requested that
Employer provide her a two-day notice so that she would have time to review the
driving route. (Id. at 9.) Claimant planned to live with a friend in Altoona,
Pennsylvania, so that she could continue to work for Employer per their agreement
2
that she would work on an as-needed basis until she permanently moved to North
Carolina. (Id.)
Claimant traveled back and forth between Pennsylvania and North
Carolina throughout the summer, spending approximately twelve days in North
Carolina. (Id. at 4-6, 11.) After selling their Pennsylvania home, Claimant’s
husband moved to North Carolina toward the end of July 2018. (Id. at 7.) Claimant
did not attend the annual group driver bid meeting on August 6, 2018, because she
and her husband were signing contract papers for their North Carolina home.
(Id. at 11.) Once the school year resumed, Claimant planned to work for Employer
as a substitute driver on an as-needed basis with a two-day notice until her move
became permanent. (Id. at 5-7.) She testified that she planned to reside some of the
time in Pennsylvania with a friend and some of the time in North Carolina, traveling
back and forth as needed. (Id.) Claimant was in North Carolina prior to
August 27, 2018, and had planned to return to Pennsylvania on August 25th or 26th,
but she stayed in North Carolina due to a hurricane. (Id.) She did not return to work
on August 27, 2018, because Employer had not contacted her to work as a substitute.
(Id. at 4-5.) On September 9, 2018, despite not yet knowing when her move would
become permanent, Claimant informed Employer that she would no longer be able
to work for Employer “because there was just too much going on” given “the
flooding in Pennsylvania and the hurricane” in North Carolina. (Id. at 6.) Prior to
September 9, 2018, Employer had not contacted Claimant about serving as a
substitute driver for the new school year. (Id. at 6-7.)
Mr. Broman testified on behalf of Employer. (Id. at 10.) He testified
that Employer had work available for Claimant had she not voluntarily quit and
relocated to North Carolina. (Id. at 11.) Claimant did not physically attend the
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annual driver meeting to place a bid on a driving route for the upcoming year. (Id.)
Rather, she elected to assign a proxy to bid in her absence. (Id.) Had Claimant not
chosen to be a substitute driver for the upcoming school year, she would have had a
driving route due to her seniority. (Id. at 11-12.) Claimant notified Mr. Broman that
she would not be available to work on August 27, 2018. (Id. at 11.) Claimant
voluntarily quit her position with Employer on September 9, 2018, via email.
(Id. at 6.)
Following the hearing, the Referee issued a decision, concluding that
Claimant was ineligible for unemployment compensation benefits under
Section 402(b) of the Law. (C.R., Item No. 10.) The Referee made the following
findings of fact:
1. The claimant was employed by [Student
Transportation of America] of Pennsylvania as a
part-time van driver, from August 2010 until
June 1, 2018, her last day of work.
2. The claimant had a lack of work with an expected date
of recall of August 27, 2018.
3. In July of 2018, the claimant decided to change from
her regular status to a substitute[,] as-needed status.
4. The claimant was planning to move to North Carolina,
but could not provide the employer with a specific date.
5. On August 25, 2018, the claimant permanently moved
to North Carolina.
(Id. at 1-2.) The Referee offered the following reasoning:
[W]here a claimant’s relocation is the basis for the
voluntary termination of employment, there must be clear
evidence that circumstances existed that required the
relocation in order for it to be considered necessitous and
compelling in nature. Relocation based essentially on
personal choice, however valid and desirous the choice
may be, does not constitute necessitous and compelling
cause for leaving continuing employment.
4
As such, the Referee cannot find that the Claimant
has established a necessitous and compelling reason for
leaving employment at the time the Claimant did or that
the Claimant acted with ordinary common sense and made
a good faith effort to preserve the employment.
(Id. at 2.)
Claimant subsequently appealed to the Board. Claimant argued that
she voluntarily quit her position for a variety of reasons, including safety concerns
at work, a desire to preserve her marriage and move with her husband who had
received financially beneficial employment in North Carolina, and to avoid the
financial stress of Pennsylvania taxes. (C.R., Item No. 11.) The Board affirmed the
order of the Referee, concluding that Claimant was ineligible for benefits. (C.R.,
Item No. 12 at 1.) The Board adopted and incorporated the Referee’s findings of
fact and conclusions of law and offered the following reasoning:
On appeal, the claimant asserts that she quit because of
safety concerns and moved to North Carolina because of
the financial stress of Pennsylvania taxes. . . . the claimant
did not testify to any safety concerns at the [referee]
hearing or any financial issues that caused . . . her to
voluntarily quit her job. The claimant’s testimony was
that she moved to North Carolina and quit because there
was too much going on there. As such, the claimant has
failed to establish a necessitous and compelling reason to
voluntarily quit her job.
(Id.)
On appeal to this Court,2 Claimant essentially argues that the Board
erred by concluding that she did not have a necessitous and compelling reason for
voluntarily quitting her position with Employer. Claimant contends that it was
2
This Court’s standard of 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. 2 Pa. C.S. § 704.
5
necessary for her to voluntarily quit her position due to her safety concerns at work
and having a desire to preserve her marriage and move with her husband who had
received financially beneficial employment in North Carolina. Claimant explains
that the Service Center initially determined that she had a necessitous and
compelling reason to quit, and she appealed only the portion of the Service Center’s
determination that she had not exhausted all alternatives prior to quitting. She
contends that, as a result of the Service Center’s determination, the Referee and
Board erred in reconsidering whether she had a necessitous and compelling reason
to voluntarily quit her position; rather, the Referee should have considered only
whether she exhausted all alternatives prior to quitting. Claimant appears to argue
that, because of the error on the part of the Referee, this Court should consider the
additional facts set forth in her brief when determining whether she had cause of a
necessitous and compelling nature to quit her employment.
We first consider Claimant’s argument that the Referee erred in
considering whether Claimant had cause of a necessitous and compelling nature to
quit her employment when the Service Center had resolved that issue in her favor.
This Court considered the identical issue in Mazur v. Unemployment Compensation
Board of Review, 193 A.3d 1132 (Pa. Cmwlth. 2018). In Mazur, we wrote:
[The] [c]laimant argues that the [Board] erred by
concluding that she failed to prove she had a necessitous
and compelling reason for voluntarily quitting her job.
She also claims that since she only appealed from the
portion of the [Erie] UC Service Center’s [(UC Service
Center)] determination that she failed to exhaust all of her
alternatives before resigning, the Referee and the [Board]
erred by re-examining and overturning the UC Service
Center’s conclusion that she had a necessitous and
compelling reason for quitting in the first instance.
As an initial matter, Section 101.87 of the [Board]’s
Regulations specifies that, “[i]n hearing the appeal [from
6
the UC Service Center’s determination,] the tribunal shall
consider the issues expressly ruled upon in the decision
from which the appeal was filed.” 34 Pa. Code § 101.87.
This Court has specifically declared that although the UC
Service Center concludes in a claimant’s favor that she
voluntarily left her employment with cause of a
necessitous and compelling nature and the claimant did
not intend to reopen that issue, it remains a proper area of
inquiry for the referee. Lenz v. Unemployment Comp. Bd.
of Review, . . . 432 A.2d 1149 ([Pa. Cmwlth.] 1981).
Moreover, Section 101.107(b) of the [Board]’s
Regulations further specifies, in relevant part: “The
[Board] shall consider the issues expressly ruled upon in
the decision from which the appeal was filed.” 34 Pa.
Code § 101.107(b). Based thereon, this Court has held that
when a referee expressly rules on an issue, the [Board] has
jurisdiction to rule on it. Jordan v. Unemployment Comp.
Bd. of Review, . . . 547 A.2d 811, 813 ([Pa. Cmwlth.]
1988). Accordingly, the [r]eferee in the instant matter
properly considered whether [the c]laimant had a
necessitous and compelling reason for quitting, and the
[Board] properly reviewed the [r]eferee’s decision.
Mazur, 193 A.3d at 1134-35 (footnote omitted) (alteration in original and added).
In Wilder & Miller, P.C. v. Unemployment Compensation Board of Review,
525 A.2d 852 (Pa. Cmwlth. 1987), we explained: “[A]s long as [the UC Service
Center] expressly ruled upon the issue, and the issue is delineated in the [UC Service
Center’s] determination notice, the referee may consider and rule upon it even
though [the appealing party] did not, by its appeal, intend to reopen inquiry into this
particular issue.” Wilder & Miller, 525 A.2d at 855.
Here, the Service Center had expressly ruled upon the issue of whether
Claimant had a necessitous and compelling reason for quitting her position. (C.R.,
7
Item No. 4 at 1.) Thus, in light of the discussion above, the Referee and Board
properly considered that same issue on appeal.3
We next consider whether the Board erred in concluding that Claimant
did not have a necessitous and compelling reason to voluntarily quit. Determining
whether a claimant had a necessitous and compelling reason to voluntarily quit is a
question of law that is reviewable by this Court. Wasko v. Unemployment Comp.
Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A claimant bears the burden
to prove that she had a necessitous and compelling reason to voluntarily quit her
position with her employer. Fitzgerald v. Unemployment Comp. Bd. of Review,
714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999).
A claimant must demonstrate the following to establish a necessitous and compelling
reason: (1) circumstances existed that produced real and substantial pressure to
terminate employment; (2) like circumstances would compel a reasonable person to
act in the same manner; (3) the claimant acted with ordinary common sense;
and (4) the claimant made a reasonable effort to preserve employment. Procito v.
Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008)
(en banc).
Here, Claimant essentially argues that it was necessary to quit her job
due to her safety concerns at work and a desire to preserve her marriage and move
with her husband who had received an employment opportunity in North Carolina.
The Board argues that Claimant failed to meet her burden to prove that she had a
3
In addition, Claimant received a Notice of Hearing from the Board, dated
September 25, 2018, informing her that the specific issue to be considered and decided upon by
the Referee on appeal would include “[w]hether [her] unemployment was due to voluntarily
leaving work without cause of necessitous and compelling nature.” (C.R., Item No. 7 at 1.) This
document, therefore, served as notice to Claimant as to what specific issue would be decided by
the Referee, and Claimant should have been prepared to address that issue at the hearing.
8
necessitous and compelling reason to quit because, at the hearing before the Referee,
she offered no evidence supporting her alleged safety concerns nor any explanation
as to why she and her husband decided to move to North Carolina. We agree with
the Board.
The Board concluded that Claimant failed to testify to any facts or offer
any evidence before the Referee that would support her presented arguments that she
had necessitous and compelling reasons to quit. (C.R., Item No. 12 at 1.)
Additionally, the Board concluded that Claimant moved to North Carolina because
there “was too much going on there.” (Id.) As Claimant has failed to challenge any
of the Board’s findings, we accept the Board’s findings and conclude that the Board
did not err in concluding that Claimant did not have a necessitous and compelling
reason for voluntarily quitting her position with Employer.4
Accordingly, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
4
This Court has held that both unsafe working environments and following a spouse within
the parameters of the “follow-the-spouse” doctrine constitute necessitous and compelling reasons
to voluntarily quit one’s job. See Green Tree Sch. v. Unemployment Comp. Bd. of Review,
982 A.2d 573, 577-78 (Pa. Cmwlth. 2009) (holding that unsafe working environment constitutes
necessitous and compelling reason to voluntarily quit); see Rodriguez v. Unemployment Comp.
Bd. of Review, 174 A.3d 1158, 1164 (Pa. Cmwlth. 2017) (holding that following spouse within the
parameters of “follow-the-spouse” doctrine constitutes necessitous and compelling reason to
voluntarily quit). As discussed above, however, Claimant simply failed to provide evidence at the
hearing before the Referee that would support an award of benefits based on either of those
reasons.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kim Peacock, :
Petitioner :
:
v. : No. 1735 C.D. 2018
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 21st day of August, 2019, we AFFIRM the order of
the Unemployment Compensation Board of Review.
P. KEVIN BROBSON, Judge