           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Emma C. Lynch,                                  :
                      Petitioner                :
                                                :
               v.                               :
                                                :
Unemployment Compensation                       :
Board of Review,                                :    No. 992 C.D. 2019
                 Respondent                     :    Submitted: March 13, 2020

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                              FILED: May 4, 2020

               Emma C. Lynch (Claimant) petitions for review of the July 18, 2019
order of the Unemployment Compensation Board of Review (Board) reversing the
decision of the referee, which found that Claimant was not ineligible for
unemployment compensation benefits (benefits) under Section 402(b) of the
Unemployment Compensation Law (Law),1 not subject to a fault overpayment under
Section 804(a) of the Law,2 and not subject to penalties under Section 801(b) or (c)
of the Law.3 Upon review, we affirm.

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any
week in which his/her unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.
       2
         43 P.S. §874(a). Section 804(a) provides for the imposition of a fault overpayment against
any individual who received monies under the Law to which he/she was not entitled and directs
that such individual shall be liable for repayment of the same.
       3
        43 P.S. §871(b), (c). Section 801(b) of the Law provides for the imposition of penalty
weeks against an individual who makes a false statement or knowingly fails to disclose a material
               Claimant was employed as a crew member for McDonald’s (Employer)
from September 2013 until August 16, 2018. Board’s Decision & Order at 1,
Finding of Fact (F.F.) 1, Certified Record (C.R.) at 107.4 Employer’s owner
intended to close the store for remodeling and held a meeting with staff and an area
supervisor two weeks prior to August 16, 2018, the intended closing date, to advise
them of the closing. F.F. 2-3. During the meeting, Employer’s owner made clear to
employees that if they were planning on returning when the store re-opened, there
were positions available at other locations where the employees could work during
the remodel. F.F. 4. Claimant informed Employer’s owner that she did not intend
to return after the remodel, asked if she had to put her two weeks’ notice in writing,
and signed a document indicating that she did not intend to return following the
remodel. F.F. 5-6. In light of Claimant’s actions, Employer did not specifically
offer Claimant a position at another store and Claimant effectively quit her
employment as of August 16, 2018. F.F. 7-8. Between September 8, 2018 and
December 15, 2018, Claimant received $2,100 in benefits.5 F.F. 9.
               On December 24, 2018, the Department of Labor and Industry
(Department) issued three determinations to Claimant. The first denied Claimant
benefits under Section 402(b) of the Law. C.R. at 33. The second assessed a fault
overpayment against Claimant in the amount of $2,100 as a result of falsely alleging


fact in order to obtain benefits under the Law. Section 801(c) provides for the imposition of a 15%
penalty of the amount of compensation received by an individual as a result of such false statement
or failure to disclose a material fact.
       4
         The certified record does not include page numbers. The citation to the page number
above refers to the page of the certified record in PDF format as submitted to this Court.
       5
         Claimant stated that her separation from Employer was due to lack of work when applying
for benefits. Department of Labor and Industry Unemployment Compensation Overpayment
Classification Worksheet, C.R. at 31.

                                                2
that she sought benefits for lack of work when she voluntarily quit her employment.
Id. at 36. The third imposed a penalty against Claimant in the amount of $315 (15%
of $2,100) as well as 20 penalty weeks against future benefits. Id. at 38. Claimant
appealed to a referee, who scheduled and held a telephone hearing on May 5, 2019,
at which Claimant and Lokeri Wood (Wood), an area supervisor for Employer,
testified. Id. at 53 & 67-80.
              The referee reversed the Department’s determinations, concluding that
Claimant was not ineligible for benefits under Section 402(b) of the Law and, as
such, was not subject to a fault overpayment or penalties. Referee’s Decision &
Order at 3, C.R. at 84. Employer appealed to the Board, which reversed the decision
and order of the referee, denied benefits to Claimant under Section 402(b), and
reinstated the Department’s imposition of a fault overpayment and penalties.
Board’s Decision & Order at 4, C.R. at 110. Claimant then petitioned this Court for
review.
              Before this Court,6 Claimant argues that the Board’s finding that she
voluntarily quit her employment was not supported by substantial evidence and,
hence, she was not subject to a fault overpayment and penalties. We disagree.
               At the hearing before the referee, Claimant testified that she was
attending college throughout most of her employment with Employer studying
computer science and that she graduated in May 2018.                See Hearing, 5/3/19,
Transcript of Testimony (T.T.) at 5-6, C.R. at 72-73. Claimant stated that she
intended to continue working for Employer until she could find a job in her field of
study and would have continued working but for Employer’s remodeling of the

       6
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).

                                             3
store. T.T. at 6, C.R. at 73. Claimant indicated that Employer’s owner was aware
of her plans and recounted a conversation during which Employer’s owner allegedly
advised her that if another position was not available during the store remodel, she
would be laid off and able to collect unemployment. T.T. at 6-7, C.R. at 73-74.
Claimant specifically denied ever quitting her job as of August 16, 2018, the date of
the store closing for the remodel, and instead testified that she was laid off. T.T. at
7, C.R. at 74.
             Claimant relies heavily on this testimony to support her argument that
the Board’s decision was not supported by substantial evidence. See generally
Claimant’s Brief at 10-14. Such reliance is misplaced, however, as the Board
specifically rejected Claimant’s testimony as not credible. Board’s Decision &
Order at 2, C.R. at 108.      Instead, the Board credited Claimant’s response in
Claimant’s Questionnaire wherein she acknowledged, in reference to the intent to
return forms Employer distributed at its staff meeting two weeks earlier, “I did sign
it and indicated that I was not intending to return.” C.R. at 22. Additionally, the
Board credited the testimony of Wood, an area supervisor for Employer, that
Claimant advised Employer’s owner at the meeting that “she was not intending to
return [after the remodel], so [August 16, 2018] would be her last day of
employment.” T.T. at 10, C.R. at 77. Wood also stated that at the meeting,

             it was also made abundantly clear [by Employer’s owner]
             that if any of the employees who were adults, were
             planning to return to the restaurant, that they would be
             given positions in other restaurants, and there were
             positions available in everyone [sic] of our other
             restaurants through the entire time that this particular
             location was closed.
Id. On cross-examination by Claimant’s counsel, Wood indicated that Claimant was
not offered a position at another store because she had informed Wood and

                                          4
Employer’s owner that August 16 “was going to be her last day and she didn’t want
to work in another store.” T.T. at 11, C.R. at 78.
             “The [Board] . . . is the ultimate fact finding body and arbiter of
credibility in unemployment compensation cases.” Deal v. Unemployment Comp.
Bd. of Review, 878 A.2d 131, 133 n.2 (Pa. Cmwlth. 2005). The Board’s findings are
binding and conclusive on appeal if the record, when examined as a whole, contains
substantial evidence to support them. Mathis v. Unemployment Comp. Bd. of
Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013). Further, “it is irrelevant whether the
record includes evidence that would support findings other than those made by the
Board; the proper inquiry is whether the evidence supports the findings actually
made.” Kelly v. Unemployment Comp. Bd. of Review, 172 A.3d 718, 725 (Pa.
Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018) (citation omitted).
             In the present case, the testimony credited by the Board above
constitutes substantial evidence in support of the Board’s finding that Claimant
voluntarily quit her employment with Employer. Because Claimant chose to focus
her argument on her allegation that she was laid off and did not voluntarily quit, she
did not attempt to set forth any necessitous and compelling reasons for leaving her
employment. As a result, the Board did not err in concluding that Claimant was
ineligible for benefits under Section 402(b) of the Law.
             Accordingly, the Board’s order is affirmed.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                          5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Emma C. Lynch,                       :
                 Petitioner          :
                                     :
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 992 C.D. 2019
                 Respondent          :


                                ORDER


           AND NOW, this 4th day of May, 2020, the July 18, 2019 order of the
Unemployment Compensation Board of Review is affirmed.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
