          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph J. Cimino,                       :
                         Petitioner     :
                                        :
            v.                          :   No. 1748 C.D. 2018
                                        :   Submitted: June 7, 2019
Unemployment Compensation               :
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 7, 2019

            Petitioner Joseph J. Cimino (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).1 For the reasons set forth below, we
affirm.
            Claimant applied for unemployment compensation benefits after
separating from his position as a controller at Field Environmental (Employer).
(Certified Record (C.R.), Item No. 9 at 1.) The Altoona UC Service Center (Service

      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(b).
Center) found Claimant ineligible for unemployment compensation benefits. (C.R.,
Item No. 4 at 1.) The Service Center determined that the benefit payments made to
Claimant were “fault overpayments” under Section 804(a) of the Law2 because
Claimant had failed to communicate to the Service Center that he had resigned his
position with Employer. (Id. at 3.)            Claimant appealed the Service Center’s
determination. (C.R., Item No. 5 at 1.) A Referee conducted a hearing, at which
time Claimant and Employer presented testimony. (C.R., Item No. 8.)
               Claimant testified that he did not quit his position. (Id. at 2.) He took
an extended vacation to the Philippines beginning on December 18, 2017. (Id.)
Claimant testified that Employer and his co-workers knew about his extended travel
plans and that he would continue to work with Employer upon his return.
(Id. at 2, 4.) Claimant trained new personnel to cover his position during his trip.
(Id. at 3.) Claimant, however, did not intend to retire in the Philippines, and he spoke
at work only of how nice it would be to retire in the Philippines due to friendships
there and the low cost of living in the country. (Id. at 3-4.) Claimant sent an email
to a co-worker about his approximate return date, which Claimant calculated from
his 30-day travel visa.          (Id. at 4-5.)      Claimant emailed Employer around
January 15, 2018, to inform it that he would return to work on approximately
January 23, 2018. (Id. at 3.) Employer’s president, Mitchell Brourman, responded,
informing Claimant that he no longer had a position with Employer. (Id.) Claimant
did not receive any type of termination notice from Employer. (Id. at 5.)

      2
          Section 804(a) of the Law addresses “fault overpayments” and provides, in part:
             Any person who by reason of his fault has received any sum as
      compensation under this act to which he was not entitled, shall be liable to repay to
      the Unemployment Compensation Fund to the credit of the Compensation Account
      a sum equal to the amount so received by him and interest at the rate determined by
      the Secretary of Revenue.

                                                2
             During cross-examination, Claimant testified that he did not provide
Employer with any information regarding his travel visa.           (Id.) Additionally,
Claimant did not have any documentation showing that he requested time off for an
extended vacation from Employer. (Id. at 6.) Claimant knew about the rules set
forth in the employee manual that instructed employees how to properly request time
off through the Time Force Automated System, Employer’s system for employees
to request time off of work. (Id.) Claimant previously utilized the Time Force
Automated System to request vacation time. (Id.)
             Mitchell Brourman, Employer’s president, testified on behalf of
Employer. He testified that Claimant informed his colleagues in the summer of 2017
that he would be retiring at the end of 2017 and moving to the Philippines. (Id.
at 7, 8.) Claimant kept a calendar in his cubicle counting down the days until his
departure. (Id. at 7-8.) Claimant participated in several meetings to determine how
work would be distributed after he left. (Id. at 8.) Claimant spoke with Employer’s
president about his plans to retire, and Employer’s president never asked Claimant
to return to his position after he returned from his trip to the Philippines. (Id. at 9.)
Additionally, Employer hired and trained additional personnel to take over
Claimant’s responsibilities before Claimant’s departure. (Id. at 8.)
             Employer admitted evidence into the record before the Referee,
including a memo from Keith Freeze, Employer’s external accountant, regarding
Employer’s preparations for Claimant’s departure from Employer; a time sheet
detailing when Claimant had taken vacation in 2017 using the Time Force
Automated System; and the employee manual. (Id. at 11-12.)




                                           3
            Following the hearing, the Referee issued a decision concluding that
Claimant was ineligible for unemployment compensation benefits. (C.R., Item
No. 9 at 3.) The Referee issued the following findings of fact:
            1.    The      claimant    was     employed        between
            February 28, 2014[,] and December 18, 2017[,] as a
            Controller for Field Environmental at a final hourly rate of
            $27.00.
            2.     As a controller, the claimant was in tune with being
            able to take time off on the employer’s time force system.
            3.    The claimant used the system before and then over
            the summer of 2017 he announced his retirement and that
            he was going to the Philippines to live.
            4.    The employer brought in people to cover for the
            claimant and he trained his replacement before he left.
            5.     The employer thought the claimant was going to
            leave in November of 2017 but the claimant finally left on
            December 18, 2017, without notice.
            6.    The employer did not know that the claimant had a
            30-day visa and the claimant did not tell the employer
            what his plans were when he would retire.
            7.     Unbeknownst to the employer, the claimant wrote
            to the employer on January 15, 2018[,] and the employer
            responded talking about what the claimant had done in
            saying that he was surprised he came home earlier than
            expected.
            8.    The claimant then made an application for benefits
            dated February 4, 2018.

(Id. at 1-2.) The Referee offered the following reasoning:
            The employer’s testimony is believed over the claimant’s.
            The Referee believes that the claimant announced his
            retirement to everyone over the summer of 2017 and the
            employer then took steps to bring on his replacement. The
            claimant then left unexpectedly on the 18[th] of December


                                         4
               and the employer then heard from claimant about
               January 15, 2018[,] in an email.

(Id. at 3.) The Referee also concluded, differently from the Service Center, that the
benefits paid to Claimant were non-fault overpayments because “[f]ault on the part
of claimant had not been established.”3 (Id.)
               Claimant appealed the Referee’s decision to the Board. (C.R., Item
No. 10.) The Board remanded the matter to a Referee to hold a second hearing in
order “to allow Claimant the opportunity to request a subpoena to obtain, from . . .
Employer, an email between [Claimant and Employer] that allegedly discussed
[Claimant’s] vacation plans as well as his intent to return to work.” (C.R., Item
No. 12.) During the second hearing before the Referee, only Claimant testified, and
both Claimant and Employer entered evidence into the record.
               Claimant testified that he believed that the subpoenaed email illustrated
that he informed Employer when he would be leaving for his trip and when he would
be returning to work.         (C.R., Item No. 16 at 2-3.)           After Claimant emailed
Employer’s vice president about his approximate return date, the vice president
informed Claimant that other employment plans were made and Claimant did not
have a position with Employer. (Id. at 3.)
               On cross-examination, Claimant testified that nowhere in the
subpoenaed email was there an explicit notice of his vacation departure date,
reference to any prior conversations that were held between Employer’s vice


      3
          Section 804(b)(1) of the Law addresses “non-fault overpayment” and provides, in part:
              Any person who other than by reason of his fault has received with respect
      to a benefit year any sum as compensation under this act to which he was not
      entitled shall not be liable to repay such sum but shall be liable to have such sum
      deducted from any future compensation payable to him with respect to such benefit
      year, or the three-year period immediately following such benefit year.

                                                5
president and himself, nor any information regarding his approximate return to work
date. (Id. at 8-9.) Additionally, Claimant emailed his ex-wife on May 10, 2017,
informing her that he would be retiring in the next few months and leaving for the
Philippines. (Id. at 12.) Claimant testified that he lied to his ex-wife within this
email so that she would sign divorce papers. (Id.)
             Claimant entered evidence into the record before the Referee to show
that he had communicated with a co-worker about his approximate date of return to
work and had communicated with Employer’s vice president about work-related
questions while on his trip. (Id. at 3.)
             Employer entered the following exhibits into the record before the
Referee: (1) the subpoenaed email that allegedly demonstrated that Claimant
informed Employer of the dates of his departure and return; and (2) a May 10, 2017
email between Claimant and his ex-wife, in which Claimant stated that he would be
retiring in the next few months and was going to travel to the Philippines. (Id. at 12.)
Employer did not testify. (Id. at 13.)
             The Board, in considering all evidence from both the first and second
Referee hearings, affirmed the Referee’s decision. (C.R., Item No. 17.) The Board
adopted and incorporated the Referee’s findings of fact and offered the following
reasoning:
             In giving consideration to the entire record, including
             testimony and evidence received at the [r]emand hearing,
             the Board concludes that the determination made by the
             Referee is proper . . . . The Board finds credible . . .
             employer’s testimony and evidence. The claimant did not
             request time off using the employer’s time force system
             when he left on December 18, 2017, to travel to the
             Philippines to be with his fiancé. The claimant intended
             to quit and retire, which was what he had been intending
             to do as early as May 2017.
                                           6
(Id.)
              On appeal to this Court,4 Claimant essentially argues: (1) the Board’s
finding that Claimant voluntarily quit his position with Employer is not supported
by substantial evidence; and (2) the Board erred in concluding that Claimant
voluntarily quit his position with Employer.
              First, we will consider whether substantial evidence supports the
Board’s finding that Claimant intended to voluntarily quit his position and retire
when he departed for the Philippines. Substantial evidence is defined as relevant
evidence upon which a reasonable mind could base a conclusion. Johnson v.
Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In
determining whether there is substantial evidence to support the Board’s findings,
this Court must examine the testimony in the light most favorable to the prevailing
party, giving that party the benefit of any inferences that can logically and reasonably
be drawn from the evidence. Id. A determination as to whether substantial evidence
exists to support a finding of fact can only be made upon examination of the record
as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831
(Pa. 1977). The Board’s findings of fact are conclusive on appeal only so long as
the record, taken as a whole, contains substantial evidence to support them. Penflex,
Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). Additionally, “[t]he fact that . . . [a
party] might view the testimony differently than the Board is not grounds for reversal
if substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment
Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).




        4
         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.

                                               7
             In an unemployment compensation case, it is well-settled that the Board
is the ultimate fact finder and is, therefore, entitled to make its own determinations
as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd.
of Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board is also empowered to resolve
conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d
253, 255 (Pa. Cmwlth. 2004). “Questions of credibility and the resolution of
evidentiary conflicts are within the sound discretion of the Board, and are not subject
to re-evaluation on judicial review.” Miller v. Unemployment Comp. Bd. of Review,
405 A.2d 1034, 1036 (Pa. Cmwlth. 1979).
             Here, Claimant argues that the Board’s finding is not supported by
substantial evidence because he claims that he informed Employer that he was going
on an extended trip to the Philippines, that he would not be retiring, and that he
would return to work after his trip. Employer, however, presented testimony during
the first hearing before the Referee, that Claimant (1) informed individuals within
the office that he would be retiring and moving to the Philippines, (2) displayed a
calendar in his cubicle to keep track of how many days until his departure,
(3) discussed his plan to retire and move to the Philippines with Employer’s
president, (4) participated in several meetings to determine how work would be
distributed after his departure, and (5) stated in the summer of 2017 that he would
be retiring at the end of 2017. (C.R., Item No. 8 at 7-11.) Employer also presented
testimony that its president never asked Claimant to return to his position after he
returned from his trip to the Philippines. (Id. at 11.) The Board found Employer’s
testimony and evidence credible, and such a finding is binding on appeal. Miller,
405 A.2d at 1036. This evidence, therefore, constitutes substantial evidence to
support the Board’s finding that Claimant had voluntarily quit his job.


                                          8
             Next, we consider whether the Board erred in concluding that Claimant
voluntarily left his position. Section 402(b) of the Law provides that an employee
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.” Whether an employee voluntarily quit or was involuntarily discharged by
the employer is a question of law and is determined by considering the totality of the
circumstances surrounding the end of the claimant’s employment.               Key v.
Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996).
             The claimant bears the burden to prove that his separation from
employment was involuntary or that he had a necessitous and compelling reason to
voluntarily quit his position with the employer. Spadaro v. Unemployment Comp.
Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). A finding of voluntary
separation is precluded unless there is a conscious intention to leave the
employment. Fekos Enters. v. Unemployment Comp. Bd. of Review, 776 A.2d
1018, 1021 (Pa. Cmwlth. 2001). An employee is deemed to have voluntarily quit
his position when, without action from the employer, he leaves or quits work without
informing his employer when or if he is planning to return within a reasonable time.
Iaconelli v. Unemployment Comp. Bd. of Review, 892 A.2d 894, 896 (Pa.
Cmwlth. 2006); see also Simpson v. Unemployment Comp. Bd. of Review,
395 A.2d 309, 310-11 (Pa. Cmwlth. 1978) (holding employee voluntarily quit his
position after he failed to come to work for eleven days and failed to communicate
to employer his return to work date).
             Here, Claimant argues that the Board erred in concluding that he
voluntarily quit. Instead, Claimant argues that Employer fired him upon his return
from the Philippines. The Board found that Claimant announced his retirement


                                          9
during the summer of 2017 and stated that he was going to live in the Philippines.
(Finding of Fact (F.F.) No. 3.)    The Board also found that Claimant left on
December 18, 2017, without notice and without telling Employer his plans;
Claimant then contacted Employer on January 15, 2018, almost one month later,
informing Employer of his return. (F.F. Nos. 5-7.) Based upon the totality of the
circumstances as found by the Board, the Board did not err in concluding that
Claimant voluntarily quit his position with Employer.
            Accordingly, we affirm the order of the Board.




                                        P. KEVIN BROBSON, Judge




                                        10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph J. Cimino,                    :
                      Petitioner     :
                                     :
            v.                       :   No. 1748 C.D. 2018
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER


            AND NOW, this 7th day of August, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                     P. KEVIN BROBSON, Judge
