         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Miller,                               :
                                              :
                     Petitioner               :
                                              :
              v.                              : No. 308 C.D. 2017
                                              : Submitted: August 18, 2017
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                     Respondent               :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge1
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                        FILED: September 20, 2017

              Michael Miller (Claimant), pro se, petitions for review of the
February 22, 2017 order of the Unemployment Compensation Board of Review
(Board) denying Claimant unemployment compensation benefits.                     The Board
concluded that Claimant voluntarily left his employment with Surplus Outlet LLC
(Employer) without a necessitous and compelling reason and was therefore
disqualified from receiving benefits under Section 402(b) of the Unemployment
Compensation Law (Law).2 We affirm.


1
  This decision was reached before Judge Hearthway’s service with the Court ended on
September 1, 2017.

2
 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, in relevant part, that an employee shall be ineligible for
              Claimant’s last day of work was October 17, 2016. (Record Item (R.
Item) 1, Claim Record.)            On October 28, 2016, Claimant completed a
questionnaire regarding his separation from employment by telephone with the
Department of Labor and Industry (Department).                   (R. Item 4, Claimant
Questionnaire.) The Department issued a Notice of Determination on October 21,
2016 finding Claimant ineligible to receive unemployment benefits because
Claimant failed to show that he had a necessitous and compelling reason to
voluntarily terminate his employment.            (R. Item 5, Notice of Determination.)
              Claimant appealed the Department’s determination and a hearing was
held before a Referee on December 1, 2016. (R. Item 9, Referee’s Hearing,
Transcript of Testimony (H.T.).) At the hearing, Claimant appeared and testified;
two witnesses, Employer’s Vice-President and President, appeared and testified on
behalf of Employer. On December 2, 2016, the Referee issued a decision and
order concluding that Claimant had failed to meet his burden to demonstrate that
he left his employment for a necessitous and compelling reason. (R. Item 10,
Referee’s Decision and Order.)
               Claimant appealed to the Board and on February 22, 2017, the Board
issued an order affirming the Referee. (R. Item 12, Board’s Decision and Order.)
In its order, the Board adopted and incorporated the Referee’s findings of fact and
conclusions of law. (Id.) The following are the Referee’s findings of fact adopted
and incorporated by the Board:

              1. [Claimant] was last employed by [Employer] as an
              administrative assistant in full-time capacity from


compensation for any week in which his or her unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.
                                             2
              January 2, 2012 until a last day of work of October 17,
              2016 at a rate of pay of $11.25 per hour.

              2. [Claimant] had interactions with the store manager
              and another employee on October 13, 2016 in which both
              parties had used a raised voice and bickered back and
              forth.

              3. On October 14, 2016, the vice-president met with
              [Claimant] regarding that issue as well as [the Family and
              Medical Leave Act] paperwork that was being sent to all
              employees, and discussed both issues.

              4. While speaking with [Claimant], the vice-president
              asked if [Claimant] had any concerns to address to the
              vice-president, and [Claimant] did not address any
              concerns.

              5. On October 17, 2016, [Claimant] went with the vice-
              president to another location which was approximately
              40 minutes away, and did not discuss any concerns he
              had with this employment to the vice-president either to
              or from that location.

              6. At approximately 4:30 PM on October 17, 2016,
              [Claimant] met with the vice-president and president and
              informed them that he was severing the
              employer/employee relationship.

              7. The vice-president asked [Claimant] to sit down and
              discuss the issues, and [Claimant] refused and said that
              he was quitting as of that time.

(R. Item 10, Referee’s Decision and Order, Findings of Fact (F.F.) ¶¶1-7.) In its
decision, the Board added an additional finding: “[Claimant] quit because he was
not satisfied with his rate of pay after working for [Employer] for many years and
because he was not satisfied with his workload.” (R. Item 12, Board’s Decision
and Order.)    Claimant requested reconsideration of the Board’s Decision and
Order, and on March 10, 2017, the Board denied his request.            (R. Item 13,
                                          3
Claimant’s Request for Reconsideration; R. Item 15, Ruling on Request for
Reconsideration of Board Decision.) Claimant timely petitioned this Court for
review of the Board’s order.3
              Claimant argues before this Court that the Board erred in determining
that he failed to take all reasonable and necessary steps to preserve his
employment; Claimant contends that he had no other option but to leave his
employment, because Employer failed to remedy a situation that he complained
about two years previously, and it would have been futile to approach Employer a
second time. Claimant asserts that both the Referee and the Board ignored his
testimony and relied instead upon what he characterizes as the lies of Employer,
and argues that the Department has an agenda whereby it takes the side of the
employer even when it is incorrect for it to do so.
              A claimant who voluntarily terminates his employment has the burden
of proving that he had a necessitous and compelling reason to do so. Philadelphia
Housing     Authority     v.   Unemployment        Compensation        Board     of   Review
(DiGiacomo), 29 A.3d 99, 101 (Pa. Cmwlth. 2011). In order to carry his burden, a
claimant must demonstrate that: (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
his employment. PECO Energy Company v. Unemployment Compensation Board
of Review, 682 A.2d 49, 51 n. 1 (Pa. Cmwlth. 1996). This Court has held that an

3
  In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of facts are supported by substantial evidence. Section 704 of
the Administrative Agency Law, 2 Pa. C.S. § 704; On Line Inc. v. Unemployment Compensation
Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
                                              4
employee who accepts a position admits the initial suitability of work with respect
to both wages to be paid and the conditions of employment; to establish eligibility
for benefits subsequent to quitting employment, an employee is required to
demonstrate that the employer misled the employee about conditions of
employment or unilaterally changed them.                Hazzard v. Unemployment
Compensation Board of Review, 413 A.2d 478, 479 (Pa. Cmwlth. 1980).
However, we have held that mere dissatisfaction with wages and working
conditions or the amount of work required is not cause of a necessitous or
compelling nature excusing a voluntary quit.              DeNofa v. Unemployment
Compensation Board of Review, 413 A.2d 786, 787 (Pa. Cmwlth. 1980).                   A
claimant’s burden is not satisfied unless he takes all necessary and reasonable steps
to preserve the employment relationship. PECO Energy, 682 A.2d at 61.
               Claimant reported to the Department that he left his employment due
to both an increase in duties without pay increase and his issues with a Manager.
(R. Item 4, Claimant Questionnaire.)           Claimant offered no testimony to
substantiate the increase in duties, and in his brief, he expresses his displeasure that
the Vice-President elected to discuss with Claimant an incident that occurred
between Claimant and the Manager several days before his last day of work.
(Claimant’s Brief at 8.) Claimant asserts that he had watched manager positions
being filled with persons with less experience than he had, and related that the
Manager made a rude comment to him and threatened to fire him, and Claimant
replied “go ahead, I can make this much money anywhere;” Claimant asserts that
this incident was the “so-called straw that broke the camel’s back.” (Claimant’s
Brief at 7.)



                                           5
             The Board could not conclude that Claimant’s problems with his
employment were anything more than his dissatisfaction with the job, and his
failure to receive more than one raise during more than four years of employment.
(R. Item 12, Board’s Decision and Order.) The Board found significant the fact
that despite lodging complaints about his job two years previously, Claimant made
no further attempts, particularly during the period just prior to quitting his job, to
express continuing concerns with Employer. At the hearing, Claimant related a
different incident that occurred several days prior to his last day of work, involving
a loud argument between Claimant and a store manager, and a subsequent meeting
that afternoon between Claimant and the Vice-President. In the course of the
meeting, they discussed both the incident with the Manager and the argument with
the store manager, and Claimant testified that he indicated to the Vice-President
that he didn’t have any concerns about them. (R. Item 9, H.T. at 7.) Three days
later, on the day Claimant quit his employment, he spent the morning hours alone
with the Vice-President, during a forty-minute car ride back and forth to another
store; the Vice-President testified that Claimant expressed no issues or problems
during that period. (Id., H.T. at 10-11.)       However, Claimant testified that at the
conclusion of his shift that afternoon, he entered an office occupied by the Vice-
President and the President and informed them that he was quitting. (Id., H.T. at
7.) Claimant testified that they immediately asked him to come in and sit down,
but he declined to do so. (Id., H.T. at 7.) The Vice-President testified that
although they offered Claimant the opportunity to discuss his concerns and
determine what they might do, Claimant refused to do so, and simply related to
them the reasons why he was quitting his employment. (Id., H.T. at 11.)



                                            6
              The Referee’s findings regarding the opportunities offered by
Employer to Claimant to discuss any concerns regarding his employment, and
Claimant’s failure to do so, expressly reflected his credibility determinations, and
these findings were adopted by the Board as its own. The Board is the ultimate
finder of fact, empowered to make credibility determinations and accept or reject
the testimony of witnesses, in whole or in part, as well as to weigh the evidence in
making its findings. Peak v. Unemployment Compensation Board of Review, 501
A.2d 1383, 1388 (Pa. 1985).       Where supported by substantial evidence, the
Board’s findings are conclusive on appeal.             Taylor v. Unemployment
Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977).             Substantial
evidence is such relevant evidence that a reasonable mind might consider adequate
to support a conclusion.     Popoleo v. Unemployment Compensation Board of
Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001).
            We find that the Referee’s findings, as adopted by the Board, are
supported by substantial evidence and as such they are conclusive on appeal.
Claimant failed to meet his burden to establish that he made a reasonable effort to
preserve his employment.    Accordingly, the order of the Board is affirmed.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Miller,                     :
                                    :
                  Petitioner        :
                                    :
            v.                      : No. 308 C.D. 2017
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                  Respondent        :



                               ORDER


            AND NOW, this 20th day of September, 2017, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.


                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
