                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald C. Dettlinger,                          :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Unemployment Compensation Board                :
of Review,                                     :   No. 810 C.D. 2019
                    Respondent                 :   Submitted: February 11, 2020


BEFORE:       HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: February 28, 2020

              Donald C. Dettlinger (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) June 4, 2019 order
affirming the Referee’s decision denying Claimant UC benefits under Section 402(b)
of the UC Law (Law).1 Claimant presents one issue for this Court’s review: whether
the UCBR properly determined that he was ineligible for UC benefits because he quit
in lieu of being discharged. After review, we affirm.
              Claimant worked as a full-time steward for Jockey Club of Etna
(Employer) from September 2005 through December 16, 2018. Employer operates a
men’s club which is overseen and directed by an elected board of officers (Board).
On December 12, 2018, a new Board was elected. Around the date of the election,
Employer’s vice president stated to Claimant that the Board would probably let him
go.   Due to Claimant’s concerns that Employer would release or terminate his

       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).
employment, Claimant resigned from employment effective December 16, 2018,
without further discussing the issue or his concerns with Employer.
              Claimant applied for UC benefits. On January 22, 2019, the Altoona UC
Service Center determined that Claimant was ineligible for UC benefits under Section
402(b) of the Law. Claimant appealed and a Referee held a hearing. On February
19, 2019, the Referee affirmed the UC Service Center’s determination. Claimant
appealed to the UCBR. On June 4, 2019, the UCBR affirmed the Referee’s decision.
Claimant appealed to this Court.2
              Claimant argues that he had a necessitous and compelling reason for
quitting because Employer’s vice president informed him that he would be let go.
              Initially,

              Section 402(b) of the Law, pertaining to voluntary
              termination without cause of a necessitous and compelling
              nature, provides, in part, 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).] Where a claimant voluntarily separates from
              employment, the claimant bears the burden of proving that
              the basis of the decision to separate from employment was a
              necessitous and compelling one. This burden may be met
              by showing that the circumstances at the time of the
              decision produced both a real and substantial pressure to
              leave the employment and that a reasonable person would
              have been similarly compelled under the same
              circumstances.

Indiana Univ. of Pa., State Sys. of Higher Educ. v. Unemployment Comp. Bd. of
Review, 202 A.3d 195, 203-04 (Pa. Cmwlth. 2019) (citation omitted).


       2
          “‘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
              Further,

              uncertainty and speculation about the future existence
              of a job does not create necessitous and compelling
              cause. Goffi v. Unemployment Comp[.] [Bd.] of Review, . . .
              427 A.2d 1273 ([Pa. Cmwlth.] 1981) (a college professor
              who resigned in the face of a dean’s recommendation that
              he be terminated was not entitled to benefits since no
              definite determination about his status had been made by
              anyone with the actual authority to fire him); Gackenbach
              v. Unemployment Comp[.] [Bd.] of Review, . . . 414 A.2d
              770 ([Pa. Cmwlth.] 1980) (an unfavorable performance
              evaluation created no imminent threat of termination but
              merely a possibility of a future occurrence, at least three to
              four months away, and thus, resignation was not deemed a
              necessitous and compelling reason); Rizzitano v.
              Unemployment Comp[.] [Bd.] of Review, . . . 377 A.2d 1060
              ([Pa. Cmwlth.] 1977) (an employer threat that a claimant
              would be fired if he did not increase productivity created no
              more than a possibility of a future discharge and did not
              justify terminating his employment).

Dep’t of Navy v. Unemployment Comp. Bd. of Review, 650 A.2d 1138, 1140 (Pa.
Cmwlth. 1994) (emphasis added); see also Flammer v. Unemployment Comp. Bd. of
Review (Pa. Cmwlth. No. 1204 C.D. 2014, filed January 9, 2015) (holding the
claimant’s resignation to avoid the possibility of termination constituted a voluntary
quit under Section 402(b) of the Law).3
              Here Claimant testified, relative to his last day of work:

              Well, that was on a Sunday. The Wednesday before that
              was the monthly regular meeting with the club. At that
              time, they elected a new [Board], and I was told after the
              meeting they would [sic] probably going to let me go
              because they wanted to put their own people into those
              positions -- into that position. And that’s why I cleaned
              everything up on Sunday, which was the, you know, the end

       3
         This Court’s unreported memorandum opinions may only be cited “for [their] persuasive
value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a). Flammer is cited for its persuasive value.


                                              3
              of the week, when I have to do all the books and stuff and
              rectify all the monies and stuff. And I told the [v]ice
              [p]resident at that time that I was going to leave, and gave
              him all the keys and stuff, and he said okay.
Reproduced Record (R.R.) at 50 (emphasis added).4 Claimant clarified:
              R[eferee] So, who was the individual that said -- that you
              said they said that (inaudible) . . .
              C[laimant] Oh, it’s the [v]ice [p]resident, Mr. Nick
              Wealthmyer (phonetic) . . .
              R[eferee] Okay.
              C[laimant] . . . Jr. He was the [v]ice [p]resident then. He
              is now the [p]resident.
              R[eferee] Okay. And he said to you that they’re probably
              going to let you go?
              C[laimant] Yeah.
R.R. at 50 (emphasis added). Claimant concluded:
              C[laimant] I was led to believe that I wasn’t going to be
              held over.
              R[eferee] Oh, okay. All right. And other than those
              discussions you had, did you speak with anyone else on the
              Board or in a position of authority. . .
              C[laimant] No . . . [.]
              R[eferee] . . . about these issues?
              C[laimant] No, I didn’t.

R.R. at 51.
              This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in
[UC] matters[.] . . . Where substantial evidence supports the [UCBR’s] findings, they


       4
         Claimant did not place a small “a” after the page numbers in the reproduced record as
Pennsylvania Rule of Appellate Procedure 2173 requires. See Pa.R.A.P. 2173. For ease of
reference, the Court cites the reproduced record in accord with Claimant’s numbering.
                                              4
are conclusive on appeal.” Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d
479, 484 (Pa. Cmwlth. 2018) (quoting Ductmate Indus., Inc. v. Unemployment Comp.
Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted)).
“Substantial evidence is relevant evidence upon which a reasonable mind could base
a conclusion.” Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment Comp. Bd.
of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999)).
              Here, the UCBR adopted the Referee’s findings and conclusion:

              In the present case, [] Claimant voluntarily resigned his
              employment due to his concerns and speculation that he
              would be released or terminated from his employment due
              to the election of a new [B]oard and statements made to him
              by [] Employer’s vice president.
              However, [] Claimant failed to establish that he was facing
              an imminent discharge at the time that he resigned his
              employment. Rather, [] Claimant resigned his employment
              without further discussing the matter with [] Employer or
              the [B]oard to confirm their intent and that the vice
              president’s statements were correct prior to resigning his
              employment.
              [] Claimant voluntarily resigned his employment to avoid
              the possibility of a discharge which does not establish a
              necessitous and compelling reason for leaving his
              employment. Accordingly, [UC] benefits must be denied
              under Section 402(b) of [Law].

R.R. at 56.
              Based upon this Court’s thorough review of the record, there is
substantial evidence to support the UCBR’s findings and conclusion. Accordingly,
this Court holds that the UCBR properly concluded that Claimant’s resignation to
avoid the possibility of termination constituted a voluntary quit without a necessitous
and compelling reason under Section 402(b) of the Law and, thus, we discern no error
or abuse of discretion by the UCBR in denying Claimant UC benefits under Section
402(b) of the Law.

                                          5
For all of the above reasons, the UCBR’s order is affirmed.


                         ___________________________
                         ANNE E. COVEY, Judge




                             6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald C. Dettlinger,                  :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation Board        :
of Review,                             :   No. 810 C.D. 2019
                    Respondent         :


                                     ORDER

            AND NOW, this 28th day of February, 2020, the Unemployment
Compensation Board of Review’s June 4, 2019 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
