           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Rensman,                       :
                 Petitioner                :
                                           :
              v.                           : Nos. 475 & 476 C.D. 2017
                                           : Submitted: September 1, 2017
Unemployment Compensation                  :
Board of Review,                           :
                 Respondent                :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                    FILED: October 2, 2017


              Christopher Rensman (Claimant) petitions pro se for review from
orders of the Unemployment Compensation Board of Review (Board) that found
him ineligible for unemployment compensation (UC) benefits under Section
402(b) of the Unemployment Compensation Law (Law)1 because he voluntarily
quit his employment without a necessitous and compelling reason, as well as
imposing a fault overpayment pursuant to Section 804(a) of the Law because he


       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) provides, in pertinent part, that “[a]n employe shall be ineligible for
compensation for any week . . . (b) [i]n which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature. . . .”
initially gave the UC Service Center an incorrect reason as to how he became
unemployed.2 For the reasons that follow, we affirm.


                                                  I.
                On July 2, 2016, Claimant quit his job with Abington Auto World
(Employer) as a service advisor where he had worked for a little over a year
earning $350.00 per week, plus commission.                        Claimant then applied for
unemployment compensation benefits giving the reason for quitting as lack of
work. Claimant received $563.00 in unemployment benefits starting with the week
ending August 27, 2016. However, in his Questionnaire taken by telephone on
September 6, 2016, Claimant admitted that he voluntarily quit because he was
promised a promotion that he never received and his pay structure had changed. In
a follow-up telephone interview, Claimant told the UC Service Center that
Employer was going to restructure his pay from being salary and commission to
just commission and draw, which would result in his making $5,000 to $8,000 less
per year.




      2
          43 P.S. § 874(a). Section 804(a) provides, in pertinent part, that:

                [a]ny 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.

Id.




                                                  2
              In its response, Employer denied that Claimant was promised
anything when hired other than he might have an opportunity to grow. Employer
acknowledged that a new salary structure had been implemented on August 1,
2016, but that was after Claimant had already quit, and Claimant’s manager never
discussed the new pay structure with him prior to his quitting.


              The UC Service Center determined Claimant was ineligible for
benefits because, while Claimant may have had a necessitous and compelling
reason to quit, he failed to pursue alternatives available to resolve the situation. It
also imposed a $563.00 fault overpayment for the unemployment benefits he
received due to his representation that his separation was due to lack of work.
Claimant appealed.


              Before the Referee, Claimant testified that he originally took the job
with Employer with the understanding that his pay was going to be roughly
$60,000 per year. However, once he began working, he found that he was making
$700 to $800 a week or between $45,000 and $47,000 per year. Claimant admitted
that his $60,000 per year salary was never put in writing and the individual who
gave him this figure no longer works for Employer.3 Claimant testified that he
continued working for Employer hoping that his pay would increase, but his
average pay remained lower than what he believed was originally promised. When


       3
           Claimant testified that Employer’s previous service manager, Danny, calculated the
$60,000 figure based upon Claimant earning a base salary of $350 per week plus bonuses and
commission, which was estimated using Employer’s production numbers. Claimant testified that
he left his prior job to join Employer in part because of this promised salary.




                                             3
he told Employer he was considering quitting due to his dissatisfaction with his
pay, Claimant testified that he was told to hang in there because the floor manager
position would become available at a higher rate of pay. However, approximately
two months later, when the floor manager position became open, without Claimant
being given the opportunity to interview, it was given to someone else.


             Claimant went on to testify that Kyle, the Parts Manager or Assistant
Manager, told him that Employer was going to change everyone’s pay structure
from commission to a draw system, meaning he would be paid based upon the
production of the entire shop and not his individual commission.          From his
conversation with Kyle, Claimant expected the change in pay structure to occur in
July 2016 but it was not implemented until August 2016, which was after he quit.
Claimant testified that he quit because he felt the new pay structure would mean he
would be earning even less money. Claimant stated that he had worked under that
type of system before and never would have taken the position with Employer if he
knew that a draw system would be implemented.


             John Davis (Davis) testified that he became Employer’s service
manager on June 1, 2016. Davis testified that he did not discuss any potential
changes in pay structure with anyone, although he acknowledged there was some
speculation that there was going to be a change. Davis testified that Employer did
move to a draw system on August 1, 2016, which was explained to the employees
at the end of July 2016 after Claimant quit.




                                          4
               Davis went on to testify that Claimant came to see him in June 2016
stating he was ready to give his two weeks’ notice because he was not happy with
Employer and some of the things he had been promised by the previous service
manager never came to fruition. Claimant told Davis he was flexible regarding his
last day of work because he did not have another job lined up and he ended up
staying for roughly three more weeks.


               The Referee found Claimant ineligible for benefits under Section
402(b) of the Law because he voluntarily quit for personal reasons. The Referee
found that even though he may have quit because of speculations that Employer
was about to make changes to the pay structure, he did not have a necessitous and
compelling reason because he did not receive official confirmation of this change
and Employer did not institute any changes to his pay prior to his quitting. As to
the fault overpayment, the Referee found that Claimant was not at fault in
receiving benefits and the overpayment was modified from a fault to a non-fault
overpayment. Claimant appealed to the Board.


               The Board, issuing its own findings of fact,4 found that Claimant was
ineligible for benefits because he quit without a necessitous and compelling reason.
In doing so, the Board found not credible Claimant’s assertion that when he
accepted the offer of employment, Employer’s former service manager told him he
would earn $60,000 annually. The Board also did not find credible Claimant’s

       4
         The Board is the ultimate fact-finder, with the power to substitute its judgment for that
of a referee on both disputed facts and credibility determinations. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1385-88 (Pa. 1985).




                                                5
assertion that a coworker informed him that Employer would be changing its pay
structure to a draw system and, regardless, held that this information was too
speculative to be relied on because it was hearsay. The Board then found that the
only thing that Claimant’s testimony established was that he was dissatisfied with
his rate of pay which is not a necessitous and compelling reason to voluntarily
terminate one’s employment. Based on those findings, it found that Claimant
failed to establish a substantial unilateral change in his employment agreement or
that he was deceived regarding the conditions of employment when he was hired.


              The Board also imposed a fault overpayment of $563.00 because
those benefits were received because Claimant told the UC Service Center that his
unemployment was caused by a lack of work when he later admitted he voluntarily
quit.5 Claimant then filed this petition for review.6


                                              II.
              Claimant essentially argues that Employer’s change to his pay
structure produced real and substantial pressure on him to terminate his


       5
         On March 1, 2017, the Board re-issued its decision in order to correct an error in the
decision number. The decisions are otherwise identical. Claimant filed petitions for review of
both decisions with this Court, and by order dated May 30, 2017, we granted the Board’s motion
to consolidate the petitions.

       6
         Our scope of review of the Board’s decision is limited to determining whether an error
of law was committed, whether constitutional rights were violated or whether necessary findings
of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law,
2 Pa.C.S. § 704; Whitlatch v. Unemployment Compensation Board of Review, 61 A.3d 397, 400
n.4 (Pa. Cmwlth. 2013).




                                              6
employment, and this change would compel a reasonable person to act in the same
manner, i.e., he had a necessitous and compelling reason to leave his employment.


              While “[m]ere dissatisfaction with wages or working conditions is not
sufficient to establish necessary and compelling reasons to quit employment,”7
Monaco v. Unemployment Compensation Board of Review, 565 A.2d 127, 130 (Pa.
1989):

              [a]n employer’s imposition of a substantial, unilateral
              change in the terms of employment, including changes
              that impact an employee’s salary, benefits, and other
              terms of employment may constitute a necessitous and
              compelling cause for an employee to terminate his
              employment.      Whether a change in employment
              conditions is sufficiently substantial to be cause for
              terminating employment must be measured by the impact
              on the claimant, and whether it involves any real
              difference in employment conditions.



       7
          To be entitled to unemployment compensation benefits, a claimant who voluntarily
quits his employment bears the burden of proving he had cause of a necessitous and compelling
nature to do so. RIO Supply, Inc. of PA v. Unemployment Compensation Board of Review, 124
A.3d 401, 404 (Pa. Cmwlth. 2015); Whitlatch, 61 A.3d at 400; 43 P.S. § 802(b). To show the
cause is of a necessitous and compelling nature, a claimant must demonstrate: “(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.” Brunswick Hotel and Conference Center v. Unemployment
Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006) (citing Fitzgerald v.
Unemployment Compensation Board of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998)).
Whether a claimant has a necessitous and compelling reason to voluntarily quit his employment
is a question of law subject to this Court’s plenary review. Middletown Township v.
Unemployment Compensation Board of Review, 40 A.3d 217, 228 (Pa. Cmwlth. 2012).




                                              7
Whitlatch v. Unemployment Compensation Board of Review, 61 A.3d 397, 401 (Pa.
Cmwlth. 2013) (citations omitted). For a claimant to make out a claim that he had
good cause to quit due to a change in his employment conditions, the claimant
must show that the cause of leaving employment was a change in the terms of his
employment and those changes were substantial.


               Claimant has not met his burden of showing that the reason he quit
was because of any change in the terms of his employment, i.e., the proposed
change to pay structure. The Board specifically discredited Claimant’s assertion
that a coworker informed him that Employer would be changing its pay structure to
a draw system. In essence, the Board found that Claimant was unaware of the
upcoming changes in the pay structure when he quit and that he quit because of his
dissatisfaction with his pay.8 Because the Board found that he was unaware of the
changes in pay structure, Claimant has not made out a change in employment
conditions, i.e., that the new pay structure caused him to quit.


               Even if we ignore that the Board found that Claimant was unaware
that the pay structure was going to change and Employer did not change its pay
structure until after he had already quit, Claimant also did not establish that there
would be any reduction in his pay under the new pay structure. To do so, Claimant
was required to offer evidence regarding his pay both before and after Employer’s


       8
         The Board is the ultimate fact-finder in unemployment compensation cases, and
questions regarding the weight of evidence and witness credibility are solely within its province.
Whitlatch, 61 A.3d at 399, n.2 (citing Guthrie v. Unemployment Compensation Board of Review,
738 A.2d 518, 521 (Pa. Cmwlth. 1999)).




                                                8
change in pay structure to a draw system. Otherwise, it is impossible to determine
whether there would be any reduction in pay and, if there was, if that difference
would be substantial. Elliott Co., Inc. v. Unemployment Compensation Board of
Review, 29 A.3d 881, 888 (Pa. Cmwlth. 2011) (“[a]lthough this Court recognizes
no talismanic percentage figure governing reductions in pay, the percentage by
which a claimant’s pay or retirement income is unilaterally reduced is a significant
factor in determining whether the claimant had necessitous and compelling cause
to quit employment.”) (citation omitted).9


              Accordingly, because Claimant has not established that he had a
necessitous and compelling reason to leave his employment, the Board’s orders are
affirmed.



                                            ________________________________
                                            DAN PELLEGRINI, Senior Judge




       9
          Claimant has waived the issue of the fault overpayment because he has not addressed it
in his brief to this Court. See Tyler v. Unemployment Compensation Board of Review, 591 A.2d
1164 (Pa. Cmwlth. 1991). In any event, we can discern no error in the Board’s imposition of a
fault overpayment.



                                               9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Rensman,                 :
                 Petitioner          :
                                     :
            v.                       : Nos. 475 & 476 C.D. 2017
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :




                                ORDER


                 AND NOW, this 2nd    day of October, 2017, the orders of the
Unemployment Compensation Board of Review in the above-captioned matter are
hereby affirmed.



                                     ________________________________
                                     DAN PELLEGRINI, Senior Judge
