            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ligonier Law,                  :
                               :
                    Petitioner :
                               :
                 v.            : No. 32 C.D. 2017
                               : Argued: November 13, 2017
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge (P)
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                       FILED: December 11, 2017


               Ligonier Law (Employer) petitions for review from a final order of the
Unemployment Compensation Board of Review (Board), which reversed a decision
of a referee and granted unemployment compensation (UC) benefits to Joslin M.
Bennet (Claimant) upon determining that Claimant’s separation from employment
was not voluntary under Section 402(b) of the Unemployment Compensation Law
(Law)1 and that she was not ineligible for UC benefits under Section 402(e) of the
Law2 relating to willful misconduct. Upon review, we affirm.


      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. §802(b).

      2
          43 P.S. §802(e).
              Employer employed Claimant as a legal assistant from November 2015
until her last day of work on July 26, 2016. After her separation from employment,
Claimant applied for UC benefits, which a local service center granted. Employer
appealed, and a referee held a hearing, at which Employer appeared and offered
testimony, but Claimant did not.3
              Based on Employer’s testimony and evidence, the referee found that
Claimant was ineligible for UC benefits under Section 402(b) of the Law upon
finding that she voluntarily quit her employment without cause of a necessitous and
compelling nature. Claimant appealed.
              On appeal, the Board reversed. Based on the record created by the
referee, the Board made the following findings. Employer hired Claimant as a full-
time employee on November 2, 2015.                However, in January 2016, Claimant
requested to work part-time hours. Claimant is disabled and explained to Employer
that she made too much money working full-time hours, which jeopardized her
eligibility for disability benefits.4 Employer accommodated Claimant’s request and
allowed Claimant to work on a part-time basis of 15 hours per week. Claimant
worked part time for seven months. Employer subsequently found that the part-time
schedule did not allow enough time for Claimant to complete necessary office work.
On July 26, 2016, Employer discharged Claimant so that it could replace her with a
full-time legal assistant. Employer paid Claimant her salary through August 31,
2016. Board Op., 12/29/16, Findings of Fact (F.F.) Nos. 2-6.



       3
        Claimant did not appear at the hearing because she wrote down the wrong date. The
Board determined that her reason was legally insufficient to warrant a new hearing.

       4
         Claimant is a bilateral leg amputee receiving Medical Assistance Benefits for Workers
with Disabilities. Reproduced Record (R.R.) at R-3.
                                              2
               The Board considered both Sections 402(b) and 402(e) of the Law in
rendering its decision. The Board determined that Claimant did not voluntarily quit
because she was willing to continue working on a part-time basis. The Board also
determined that Claimant was not discharged for willful misconduct. The Board
found that Claimant was willing to continue working part-time, but that Employer
wanted a full-time employee.            Claimant’s desire to work part-time, to which
Employer initially agreed, is not willful misconduct. Thus, the Board concluded that
Claimant was not ineligible for UC benefits under Section 402(e) of the Law. The
Board reversed the referee’s decision and awarded UC benefits to Claimant.5
               Employer then petitioned this Court for review.6 Employer contends
that the Board erred in concluding that Claimant did not voluntarily quit and by
analyzing this case as a willful misconduct case.


                                       Voluntary Quit
               First, Employer contends that the Board erred in concluding that
Claimant did not voluntarily quit. Employer hired Claimant to fill a full-time
position. Claimant requested part-time work because she was making too much
money in the full-time position, which jeopardized her eligibility to receive disability
payments and benefits. Employer agreed, provided she could accomplish the work
required in substantially less time. According to Employer, it was a trial period

       5
         The Board noted that, in light of Claimant’s limitation on the number of hours per week
she is willing to work, the Department should investigate her eligibility under Section 4(u) of the
Law, 43 P.S. §753(u), and 34 Pa. Code §65.73(a)(5).

       6
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa.
Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014).
                                                3
conditioned on Claimant’s ability to do the work.        Claimant was unable to
accomplish the tasks required of her on a part-time basis. Employer needed a full-
time assistant, but Claimant was only willing to work part-time. When Employer
reinstituted the original employment conditions of full-time hours, Claimant
declined and, thus, was unavailable for full-time work. Employer maintains that it
was Claimant’s voluntary choice to decline full-time work and sever the
employment relationship.
            Section 402(b) of the Law provides that an employee shall be ineligible
for compensation for any week “[i]n which [her] unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature . . . .”
43 P.S. §802(b). Whether a claimant’s separation from employment was voluntary
or a discharge, is a question of law for this Court to determine by examining the
totality of the facts surrounding the termination.      Middletown Township v.
Unemployment Compensation Board of Review, 40 A.3d 217, 227 (Pa. Cmwlth.
2012); Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412
(Pa. Cmwlth. 1996). It is a claimant’s burden to prove that her separation from
employment was a discharge. Key, 687 A.2d at 412.
            If a claimant fails to prove that she was discharged, then the claimant
must prove a necessitous and compelling reason for quitting. Middletown, 40 A.3d
at 227. To prove a necessitous and compelling reason for leaving employment, a
claimant must demonstrate the following: “(1) circumstances existed which
produced real and substantial pressure to terminate employment; (2) such
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 her employment.” Solar Innovations, Inc. v. Unemployment


                                        4
Compensation Board of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012) (quoting
Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board
of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006)).
             Here, Employer originally hired Claimant to work full-time. In January
2016, Claimant requested to work part-time hours. Employer accommodated her
request by permitting Claimant to work 15 hours per week. See R.R. at R-12, R-20.
Claimant worked part-time hours for seven months.           After which, Employer
determined that Claimant could not complete five days’ worth of work in two days.
See id. at R-12, R-20. Employer needed a full-time assistant. Id. Employer’s
witness testified that “if she could have worked full-time, certainly I would have not
had to dismiss her.” Id. at R-21.
             Employer argues that Claimant quit by refusing to work full-time and
that the change from part-time work to full-time work was merely a reversion to the
original terms of the employment. However, by agreeing to Claimant’s request for
part-time work, Employer and Claimant agreed to new terms of employment. See
Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 913
(Pa. Cmwlth. 1984) (“In general, once an employee has accepted new terms of
employment, he has conceded their suitability and may not later claim that
dissatisfaction with those terms constitutes cause of a necessitous and compelling
nature.”). Claimant was willing to continue under the new terms of part-time
employment, but Employer was not. Employer eliminated the part-time position,
thereby severing the employment relationship. Thus, the Board did not err in
determining that Claimant did not quit and that Section 402(b) of the Law did not
apply.




                                          5
                                 Willful Misconduct
            Next, Employer argues that the Board erred in analyzing this case as a
willful misconduct case. At no time did Employer claim that it terminated Claimant
for willful misconduct. Rather, Employer maintains that Claimant voluntarily left
employment by refusing to on a work full-time basis.
            Where there is a conflict regarding a claimant’s separation, the
claimant’s eligibility is considered under both Sections 402(b) and 402(e) of the
Law. Middletown, 40 A.3d at 224; Key, 687 A.2d at 412; see R.R. at R-11
(Employer’s petition for appeal referring to Claimant’s “discharge/quit”). If a
claimant proves that she was discharged, then the employer bears the burden of
proving discharge for willful misconduct under Section 402(e) of the Law.
Middletown, 40 A.3d at 224; Key, 687 A.2d at 412.
            Section 402(e) of the Law provides that an employee will be ineligible
for UC benefits for any week in which her “unemployment is due to [her] discharge
or temporary suspension for willful misconduct.” 43 P.S. §802(e). This Court has
defined willful misconduct as:

                 (1) wanton and willful disregard of an employer's
                 interests; (2) deliberate violation of rules; (3)
                 disregard of the standards of behavior which an
                 employer can rightfully expect from an employee; or,
                 (4) negligence showing an intentional disregard of the
                 employer's interests or the employee's duties and
                 obligations.

Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 (Pa.
Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014). If the employer meets its burden,
the burden then shifts to the claimant to demonstrate good cause for her actions.
Johns, 87 A.3d at 1010. “Whether conduct rises to the level of willful misconduct

                                         6
is a question of law to be determined by this Court.” Brown v. Unemployment
Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012).
            Here, there was a conflict regarding whether Claimant voluntarily quit
or was discharged from her employment. Once the Board determined that Claimant
did not voluntarily quit, the Board properly considered whether Employer
discharged Claimant for willful misconduct. See Key. Employer readily concedes
it did not terminate Claimant’s employment for willful misconduct. Thus, the Board
did not err in determining Claimant was not ineligible for benefits under Section
402(e).
            Accordingly, we affirm.




                                      MICHAEL H. WOJCIK, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ligonier Law,                  :
                               :
                    Petitioner :
                               :
                 v.            : No. 32 C.D. 2017
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                              ORDER


           AND NOW, this 11th day of December, 2017, the order of the
Unemployment Compensation Board of Review, dated December 29, 2016, is
AFFIRMED.



                                __________________________________
                                MICHAEL H. WOJCIK, Judge
