                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Gosner, Sr.,                            :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Unemployment Compensation Board                :
of Review,                                     :   No. 552 C.D. 2019
                    Respondent                 :   Argued: June 8, 2020


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge

OPINION BY
JUDGE COVEY                                        FILED: June 30, 2020

              Edward Gosner, Sr. (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 20, 2019
order reversing the Referee’s decision and denying Claimant UC benefits under
Section 402(b) of the UC Law (Law).1 Claimant presents two issues for this Court’s
review: (1) whether Claimant, who notified J Silva and Sons LLP (Employer) that he
was incarcerated and returned to work upon his release to find out the employees had
been laid off, voluntarily quit his employment; and (2) whether Claimant, who was
incarcerated on a charge that was subsequently nolle prossed, was unemployed
through his own fault. After review, we reverse.
              Claimant was last employed as a full-time mechanic/driver by Employer
from September 20, 2017 to February 21, 2018. On February 23, 2018, Claimant was
arrested and incarcerated until November 7, 2018.2 Claimant was unable to contact

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntarily leaving work without cause of a necessitous and compelling nature).
       2
         On November 1, 2018, the charges against Claimant were nolle prossed.
Employer during his incarceration. After his release from prison, Claimant called his
foreman about returning to work and was informed that everyone had been laid off
because of a contract loss.
              On November 18, 2018, Claimant applied for UC benefits.                        On
December 18, 2018, the Duquesne UC Service Center determined that Claimant was
not eligible for UC benefits under Section 402(b) of the Law. Claimant appealed, and
a Referee held a hearing.3 The Referee concluded that Claimant did not intend to
voluntarily quit his employment, and reversed the UC Service Center’s
determination, thereby granting Claimant UC benefits. Employer appealed to the
UCBR and requested a remand hearing. The UCBR concluded that Claimant was
unemployed through his own fault and reversed the Referee’s decision, thereby
denying Claimant UC benefits. The UCBR denied Employer’s remand request based
upon its ineligibility determination. Claimant appealed to this Court.4
              Initially, Section 402(b) of the Law states 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[.]” 43
P.S. § 802(b). This Court has explained:

              Whether a claimant had cause of a necessitous and
              compelling nature for leaving work is a question of law
              subject to this Court’s review. A claimant who voluntarily
              quits his employment bears the burden of proving that
              necessitous and compelling reasons motivated that decision.
              In order to establish cause of a necessitous and compelling
              nature, a claimant must establish that (1) circumstances

       3
         Claimant was unrepresented at the hearing and Employer did not appear.
       4
          “‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Review, 197 A.3d 842, 843 n.4 (Pa.
Cmwlth. 2018).


                                               2
            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 [his]
            employment.

Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 227-28 (Pa.
Cmwlth. 2012) (citations omitted).
            Here, Claimant contends his separation from employment began the date
he was released from incarceration and attempted to return to work. Thus, Claimant
asserts the separation was caused by lack of work because Employer had laid off its
employees due to losing a contract. The UCBR rejoins that the separation occurred
when Claimant was incarcerated. Thus, the UCBR maintains the separation was
caused by Claimant’s failure to return to work.
            Claimant first argues that the UCBR lacked substantial evidence to
determine that Claimant voluntarily quit his employment. Specifically, Claimant
contends that, because he intended to return to work upon his release from prison, he
did not voluntarily quit his employment.
            At the outset,

            [i]n UC cases, the [UCBR’s] findings of fact must be
            supported by ‘[s]ubstantial evidence [which] is defined as
            ‘such relevant evidence which a reasonable mind would
            accept as adequate to support a conclusion.’’ W[.] & S[.]
            Life Ins[.] Co. v. Unemployment Comp[.] [Bd.] of Review,
            913 A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie v.
            Unemployment Comp[.] [Bd.] of Review, 738 A.2d 518, 521
            (Pa. Cmwlth. 1999)).         ‘The [UCBR’s] findings are
            conclusive on appeal so long as the record, when viewed in
            its entirety, contains substantial evidence to support the
            findings.’ W[.] & S[.] Life Ins[.] Co., 913 A.2d at 335. This
            Court is bound ‘to examine the testimony in the light most
            favorable to the party in whose favor the [UCBR] has
            found, giving that party the benefit of all inferences that can
            logically and reasonably be drawn from the testimony’ to
            determine if substantial evidence exists for the [UCBR’s]
                                           3
            findings. U[.]S[.] Banknote Co. v. Unemployment Comp[.]
            [Bd.] of Review, . . . 575 A.2d 673, 674 ([Pa. Cmwlth.]
            1990). Moreover, ‘even if there is contrary evidence of
            record, the [UCBR’s] findings of fact are binding upon the
            Court where supported by substantial evidence.’ Borough
            of Coaldale v. Unemployment Comp[.] [Bd.] of Review, 745
            A.2d 728, 731 (Pa. Cmwlth. 2000).

Cambria Cty. Transit Auth. (Cam Tran) v. Unemployment Comp. Bd. of Review, 201
A.3d 941, 947 (Pa. Cmwlth. 2019) (emphasis added).
            “When an employee is absent from work without permission, such
absenteeism may constitute just cause for his dismissal, but it does not constitute
‘voluntarily leaving work’ under Section 402(b)[] of the Law.”             Hutt v.
Unemployment Comp. Bd. of Review, 367 A.2d 390, 391 (Pa. Cmwlth. 1976).

            The phrase ‘voluntarily leaving work’ in Section 402(b)[]
            [of the Law] means that ‘he left of his own motion; he
            was not discharged. It is the opposite of a discharge,
            dismissal or layoff by the employer or other [a]ction by the
            employer severing relations with [its] employes . . . .’
            Labor [&] Indus[.] [Dep’t] v. Unemployment Comp[.] [Bd.]
            of Review, . . . 3 A.2d 211, 213 ([Pa. Super.] 1938). . . .
Hutt, 367 A.2d at 391 (emphasis added).
            The Pennsylvania Supreme Court clarified:
            The resolution of [whether an employee voluntarily quit his
            job] requires a determination of the intent of the
            employee[]. Case law has established ‘a finding of
            voluntary termination is essentially precluded unless the
            claimant had a conscious intention to leave his
            employment.’ . . . Roberts v. [Unemployment Comp. Bd. of
            Review], . . . 432 A.2d 646[, 648] ([Pa. Cmwlth.] 1981).
            Furthermore, the case law supports the [] contention that
            leaving the premises is not enough to determine intent to
            voluntarily terminate employment. However, where an
            employee without any action of the employer resigns,
            leaves or quits employment that action amounts to a
            voluntary leaving.     In all cases the totality of the
            circumstances surrounding the incident must be considered
            when determining the intent to quit.

                                          4
Monaco v. Unemployment Comp. Bd. of Review, 565 A.2d 127, 129 (Pa. 1989)
(emphasis added; citations omitted).
             Here, Claimant testified:

             I didn’t voluntarily leave. I would’ve been in work the
             next day. I never missed a day. These guys, I loved
             working with these guys. This isn’t a, you know, a one-day
             job thing. This was a lifetime employment, here. I also,
             last year, prior to this we do drilling. We’re underground
             drillers. I’m supposed to go (inaudible) 542 operating
             engineer for drilling. I also applied in -- for the local 542 to
             go to the training camp for drilling. And, you know, I’ve
             been proceeding this still today, you know, to go back
             where I was last year. I just lost a year, so, you know I’m
             trying to get back to where I was last year. I lost everything
             that I owned, you know. I was robbed while I was
             unemployed -- being incarcerated; I’m sorry. I was
             incarcerated. I was robbed for everything I had just because
             a cop shows up at your door and arrests you. . . .

Certified Record Item 11, Notes of Testimony, January 23, 2019 (N.T.) at 10
(emphasis added). Claimant explained that he told his mother to tell the foreman,
who lived around the corner, that Claimant was incarcerated.           See N.T. at 6-7.
Claimant related that his mother received assurances from Employer that Claimant’s
job would be all right. See N.T. at 7.

             The UCBR concluded:
             Section 402(b) of the Law provides that a claimant shall be
             ineligible for compensation for any week in which his
             unemployment is due to voluntarily leaving work without
             cause of a necessitous and compelling nature. Since []
             [C]laimant voluntarily left his employment, the burden
             rests upon him to show cause of a necessitous and
             compelling nature for so doing.

UCBR Dec. at 2 (emphasis added). Examining the testimony in the light most
favorable to Employer, as we must, see Cam Tran, this Court holds that substantial
evidence does not support a finding that Claimant “had a conscious intention to leave

                                            5
his employment.” Monaco, 565 A.2d at 129 (quoting Roberts, 432 A.2d at 648). In
fact, since Employer did not appear at the hearing, there was no contrary evidence
offered. Moreover, as required by our Supreme Court’s directive in Monaco, the
UCBR made no finding that Claimant had a conscious intention to leave his
employment. Consequently, there is no record evidence to support the UCBR’s
conclusion that Claimant voluntarily left his employment. Accordingly, the UCBR
erred by denying Claimant UC benefits based on the conclusion that Claimant
voluntarily left his employment.5
              The UCBR further reasoned:

              Using Section 3 [of the Law] as an interpretive aide, []
              [C]laimant was clearly unemployed through fault of his
              own. [] [C]laimant admitted that he had a domestic dispute
              which was a violation of his parole.[6] An employee who
              engages in criminal activity punishable by incarceration
              should realize that his ability to attend work may be
              jeopardized. Therefore, benefits are denied to [] [C]laimant
              under Section 402(b) of the Law.

UCBR Dec. at 2 (emphasis added).
              Claimant also argues that, because the charges for which he was
incarcerated were subsequently nolle prossed, he was unemployed through no fault of
his own. The UCBR rejoins that the fact that the prosecutor chose not to move
forward with the case does not mean that Claimant was incarcerated through no fault
of his own.      The UCBR cites Bruce v. Unemployment Compensation Board of
Review, 2 A.3d 667 (Pa. Cmwlth. 2010), to support its position.

       5
         “It is true, however, that ‘(a)bsence from work, even for a good cause such as illness may
become, through the lapse of an unreasonable amount of time, a voluntary termination.’” Hutt, 367
A.3d at 391 (quoting Unemployment Comp. Bd. of Review v. Thomas, 354 A.2d 46, 47 (Pa. Cmwlth.
1976)). Notwithstanding, that was not the UCBR’s rationale in the instant case.
       6
         Claimant made no such admission. Rather, Claimant testified: “I had an issue with my
home. Police were called. And, I was arrested at the door and detained from that point on.” N.T. at
6.


                                                6
              In Bruce, the claimant missed work because she was charged and
incarcerated for drug offenses. The claimant was subsequently admitted into the
accelerated rehabilitation disposition (ARD) program. Relative to Section 3 of the
Law, the Bruce Court held that because the “[UCBR] found that [the c]laimant was
not acquitted of the charges but, rather, that she entered into the ARD program . . .
[the c]laimant failed to show that her arrest and subsequent incarceration, which kept
her from reporting to work or personally calling off, were through no fault of her
own.” Bruce, 2 A.3d at 676.
              This Court finds the instant matter more analogous to Gonzalez v.
Unemployment Compensation Board of Review, 510 A.2d 864 (Pa. Cmwlth. 1986),
than Bruce.      In Gonzalez, the claimant was arrested for a crime for which the
prosecutor later testified the wrong person was arrested and the claimant was not
guilty of the offense charged. The Gonzalez Court expounded:

              It is true, of course, that [c]laimant in order to receive
              benefits, must be ‘able to work and available for suitable
              work,’ [Section 401(d)(1) of the Law,] 43 P.S. § 801(d)(1),
              and we are aware that a claimant may not qualify where
              his unavailability is due to incarceration through his
              own fault, Smith v. Unemployment Comp[.] [Bd.] of
              Review, . . . 370 A.2d 822 ([Pa. Cmwlth.] 1977);[7]
              Mulqueen v. Unemployment Comp[.] [Bd.] of Review, . . .
              409 A.2d 958 ([Pa. Cmwlth.] 1980).[8] We are aware also
              that our Court has sustained the denial of benefits where the
              claimant’s unavailability was due to physical disability.
              Thus[,] in McCurdy v. Unemployment Compensation Board
              of Review, . . . 442 A.2d 1230 ([Pa. Cmwlth.] 1982) [and]
              Chapman v. Unemployment Compensation Board of
              Review, . . . 414 A.2d 174 ([Pa. Cmwlth.] 1980), where

       7
          The Smith Court held that because the claimant, who was incarcerated for non-payment of
child support, had the option of being released if he paid the support arrears and chose not to, his
incarceration was through his own fault. Thus, Smith is inapposite.
        8
          The Mulqueen Court held that because the claimant pled guilty to the charges for which he
was incarcerated, the claimant was incarcerated through his own fault. Hence, Mulqueen is
inapposite.
                                                 7
            claimants’ [un]employment was due to physical disability,
            we sustained the disallowance of benefits on the ground that
            to allow a recovery of unemployment benefits in such cases
            would ‘transform [UC] into a system of health insurance.’
            McCurdy, . . . 442 A.2d at 1231. Here we have one . . .
            who is physically ‘able to work’ and would be ‘available
            for suitable work,’ if offered, but for his illegal
            incarceration. We cannot in light of familiar statutory
            construction principles read the Law to require that we
            honor the admitted illegality on the part of the police
            authorities by approving the termination of benefits on the
            basis of such a wrong[.]

Gonzalez, 510 A.2d at 865 (emphasis added).
            The charges for which Claimant was incarcerated herein were nolle
prossed. The Pennsylvania Supreme Court has held that a nolle pros is a favorable
outcome. Specifically, our Supreme Court has elucidated:

            [T]he [Pennsylvania] Superior Court erred in finding that
            the [] criminal action against appellant, which ended in the
            entry of a nolle pros by the Commonwealth, did not
            terminate in favor of appellant. The prosecution formally
            abandoned the criminal proceedings against appellant when
            it nolle prossed the [] charges because of insufficient
            evidence. As such, the proceedings terminated in favor of
            the appellant pursuant to Restatement (Second) of Torts §
            659(c) [(Am. Law Inst. 1977)]. ‘[I]f the defendant is
            discharged after abandonment of the charges by the
            prosecutor, or the charges are withdrawn by the
            prosecutor, this is sufficient to satisfy the requisite
            element of prior favorable termination of the criminal
            action.’ Woodyatt v. Bank of Old York R[d.], . . . 182 A.2d
            500, 501 ([Pa.] 1962).

Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993) (emphasis added). Accordingly,
because Claimant’s charges were nolle prossed, the UCBR erred by concluding that
Claimant was unemployed through his own fault.




                                         8
For all of the above reasons, the UCBR’s order is reversed.




                         ___________________________
                         ANNE E. COVEY, Judge




                             9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edward Gosner, Sr.,                    :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation Board        :
of Review,                             :   No. 552 C.D. 2019
                    Respondent         :



                                     ORDER

            AND NOW, this 30th day of June, 2020, the Unemployment
Compensation Board of Review’s March 20, 2019 order is reversed.




                                     ___________________________
                                     ANNE E. COVEY, Judge
