                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert A. Goldman,                             :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Unemployment Compensation                      :
Board of Review,                               :    No. 2392 C.D. 2014
                    Respondent                 :    Submitted: June 26, 2015



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: September 25, 2015

              Robert A. Goldman, Esquire (Employer) petitions this Court, pro se, for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR)
December 11, 2014 order affirming the Referee’s decision granting Jennifer Stanley
(Claimant) UC benefits under Section 402(b) of the UC Law (Law).1 Essentially,
Employer presents one issue for this Court’s review: whether the UCBR erred in
concluding that Claimant did not voluntarily quit her employment. After review, we
reverse.
              The UCBR made the following findings of fact:

              1. [C]laimant performed research and assistance/legal
              services for [E]mployer. Her last day of work was June 9,
              2014.


       1
         Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (referring to voluntarily leaving work without cause of a necessitous and compelling nature).
              2. [C]laimant worked for [E]mployer on an as needed basis
              for a period of approximately three weeks for about 20
              hours per week at a rate of $20 per hour.

              3. [E]mployer was aware that [C]laimant was searching for
              full-time work.

              4. [C]laimant informed [E]mployer that she had an
              opportunity to start a temporary job for 40 hours per week.

              5. [C]laimant did not give [E]mployer a definite date of
              resignation, as she did not know when the temporary job
              would begin.

              6. [C]laimant indicated to [E]mployer that she would assist
              him with work to the extent that she was able in the future.

              7. [E]mployer was going to be out of town for about two
              weeks. He did not contact [C]laimant for work upon his
              return and the work relationship ended.

              8. The temporary job that the [C]laimant had anticipated did
              not come to fruition.
UCBR Dec. at 1.
              Claimant performed legal research and assistance for Employer on an as-
needed basis from May 15, 2014 through June 9, 2014. Thereafter, Claimant applied
for UC benefits. On September 25, 2014, the Harrisburg Overflow Center issued a
determination finding Claimant eligible for UC benefits under Section 402(e) of the
Law.2 Employer appealed and a Referee hearing was held. On October 24, 2014, the
Referee affirmed the Overflow Center’s determination. Employer appealed to the
UCBR. On December 11, 2014, the UCBR affirmed the Referee’s decision, but
found Claimant eligible for UC benefits under Section 402(b) of the Law. Employer
appealed to this Court.3


       2
        43 P.S. § 802(e) (referring to willful misconduct).
       3
        “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
                                                2
             Employer argues that the UCBR erred in concluding that Claimant did
not voluntarily quit her employment. Initially,

             [w]hether a claimant’s separation from employment is the
             result of a voluntary action or a discharge is a question of
             law subject to review by this Court and must be determined
             from a totality of the facts surrounding the cessation of
             employment.         A claimant seeking unemployment
             compensation benefits bears the burden of establishing
             either that (1) [her] separation from employment was
             involuntary or (2) [her] separation was voluntary but [she]
             had cause of a necessitous or compelling nature that led
             [her] to discontinue the relationship. In other words, in
             order to be eligible for [UC], the claimant bears the burden
             of proving separation from employment, whether voluntary
             or involuntary. A finding of voluntary termination is
             essentially precluded unless the claimant has a conscious
             intention to leave [her] employment. On the other hand, to
             be interpreted as a discharge, the employer’s language must
             possess the immediacy and finality of a firing.

Watkins v. Unemployment Comp. Bd. of Review, 65 A.3d 999, 1004 (Pa. Cmwlth.
2013) (citations and footnote omitted).
             Employer contends that the UCBR’s conclusion that Claimant did not
voluntarily quit her employment is not supported by substantial evidence. We agree.
This Court has consistently held:

             Substantial evidence is relevant evidence upon which a
             reasonable mind could base a conclusion. In deciding
             whether there is substantial evidence to support the
             [UCBR’s] findings, this Court must examine the testimony
             in the light most favorable to the prevailing party, . . .
             giving that party the benefit of any inferences which can
             logically and reasonably be drawn from the evidence.




substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).


                                             3
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
           At the Referee hearing, Claimant testified:

           C[laimant’s] L[awyer] Okay. . . .Why don’t you tell us in
           your own words how your employment came to an end?
           C[laimant] So I had signed up for Special Counseling,
           which is . . . an employment staffing agency and they
           provide document review services to legal [e]mployers. So
           they had told me that they were anticipating a document
           review job that could last up to a year, it would be 40 hours
           a week with a potential for overtime. And at the time
           [Employer] was leaving town. I had completed all my
           current assignments for him. The email exchange . . .
           happened when I said I may be working a temporary
           project and I also have another interview with a
           potential full-time [e]mployer. So he called me a few
           days after that . . . and said I have this assignment, I’m out
           of town. It’s a federal case. I don’t remember the nature of
           the case. I recall not feeling comfortable with working on
           that case especially when I didn’t have access to his files, so
           I would’ve had to really just work on my own with no
           guidance with someone who was out of town and may not
           even be accessible. So I informed him that I was
           planning to start a full-time but temporary job with
           Special Counsel. I didn’t know who the law firm or
           anything was, which I recall him asking for some reason.
           So I said, if you can’t get another person – that I understood
           to be working for him in the same capacity to do it for you,
           please call me back and we will try to work something out,
           depending on what my schedule is. I don’t know what it is
           at the moment because the document review kept getting
           pushed back . . . and it just wasn’t clear what my
           availability would be at that time.
           ....
           CL Right. And had you let [Employer] know at any time
           either that you were not available to do anymore
           assignments for him or that you would be certainly willing
           to continue to consider assignments from him?


                                         4
            C Well in the two-week period that he was gone I did not
            hear from him and I actually started working for a
            shorter document review with Special Counsel.
            CL Okay.
            C So I did not contact him.

Reproduced Record (R.R.) at 15a-16a (emphasis added).            In addition, on her
Claimant Questionnaire (Questionnaire) when asked “[d]id you quit your job or take
a leave of absence[,]” Claimant checked off “Quit.” R.R. at 42a (emphasis added).
As her reason for quitting, Claimant explained: “I was supposed to begin working
on a long-term, full-time project for another employer, while [Employer] was out of
town and I was not expected to work for [Employer].” Id. (emphasis added).
Claimant signed the Questionnaire underneath the following statement: “I certify that
the information I have provided is true to the best of my knowledge. I am aware that
there are penalties provided for making false statements.” R.R. at 43a.
            Viewing the “totality of the facts surrounding the cessation of
employment[,]” this Court holds that Claimant has not met her burden of proving that
her job termination was involuntary. Watkins, 65 A.3d at 1004. First, Claimant
notified Employer in an email that she “may be working a temporary project and
[she] also ha[s] another interview with a potential full-time [e]mployer.” R.R. at 15a;
see also Claimant Ex. C-2, R.R. at 24a.         Further, shortly thereafter Employer
contacted Claimant about an assignment which she refused, stating: “[She] was
planning to start a full-time but temporary job with Special Counsel.” R.R. at 15a.
Moreover, Claimant never told Employer that the temporary job had ended or that the
full-time employment did not come to fruition and she was available for future
assignments. Rather, she chose to “not contact him.” R.R. at 16a. Finally, Claimant
checked the box “Quit” on her Questionnaire, and stated she did so because “[she]




                                          5
was supposed to begin working on a long-term, full-time project for another
employer and [she] was not expected to work for [Employer] . . . .” R.R. at 42a.
            This Court has held:

            A capricious disregard of evidence occurs where the fact
            finder willfully and deliberately disregards competent and
            relevant evidence that one of ordinary intelligence could not
            possibly have avoided in reaching a result.              The
            Pennsylvania Supreme Court has explained that review for
            capricious disregard of competent evidence is an
            ‘appropriate component of appellate consideration in every
            case in which such question is properly before the court.’
            Leon E. Wintermyer, Inc. v. Workers’ [Comp.] Appeal [Bd.]
            (Marlowe), . . . 812 A.2d 478, 487 ([Pa.] 2002). . . .

            Disturbing an agency’s adjudication for a capricious
            disregard of evidence is appropriate only where the
            factfinder has refused to resolve conflicts in the evidence,
            has not made essential credibility determinations or has
            completely ignored overwhelming evidence without
            comment. Hinkle v. City of [Phila.], 881 A.2d 22, 27
            (Pa.[]Cmwlth.[]2005).
Wise v. Unemployment Comp. Bd. of Review, 111 A.3d 1256, 1262-63 (Pa. Cmwlth.
2015) (citation omitted; emphasis added).
            Applying the above principles to the case sub judice, we are constrained
to conclude that the UCBR capriciously disregarded competent and relevant
evidence. Indeed, the UCBR expressly opined:

            [C]laimant did not quit this employment. [C]laimant
            informed [E]mployer that she might be leaving for a
            temporary assignment at 40 hours per week. She also stated
            that she would continue to assist the employer, depending
            on her availability. She did not know at that time what that
            availability would be, as she did not have a firm job offer.
            She is not ineligible for benefits under Section 402(b) of the
            Law.




                                            6
UCBR Dec. at 2. Absent from the findings of fact and the discussion section of the
UCBR’s decision is any reference to Claimant’s testimony that shortly after advising
Employer she had a temporary job and would continue to assist him, she refused an
assignment stating: “[She] was planning to start a full-time but temporary job soon
with Special Counsel.” R.R. at 15a. In fact, Claimant continued that “I actually
started working . . . with Special Counsel.” R.R. at 16a. Further, the UCBR did not
comment on Claimant’s testimony that she never told Employer that the temporary
job had ended or that the full-time employment did not come to fruition and she was
available for future assignments. Moreover, the UCBR ignored Claimant’s testimony
that she chose not to contact Employer. Finally, the UCBR disregarded Claimant’s
admission on her Questionnaire that she “Quit.” R.R. at 42a. And the reason she quit
was “to begin working on a long-term, full-time project for another employer . . . .”
Id. Claimant signed the Questionnaire under penalty of perjury. See R.R. at 43a.
Accordingly, we hold that the UCBR “completely ignored overwhelming evidence
without comment.” Wise, 111 A.3d at 1263.
             The UCBR’s decision reflects that it disregarded the undisputed
competent record evidence and chose to make its decision in complete derogation of
the testimony and the documentary evidence. The UCBR arbitrarily and capriciously
disregarded both the Questionnaire and Claimant’s testimony. “The UCBR’s opinion
[sic] under the capricious disregard standard erred as a matter of law, since there was
no competent evidence to support the UCBR’s finding that [Claimant did not
voluntarily quit]. Claimant[’s] . . . [Questionnaire] and [her] testimony . . . support[]
the legal conclusion that [she] voluntar[il]y terminat[ed her employment].” Eby v.
Unemployment Comp. Bd. of Review, 629 A.2d 176, 178 (Pa. Cmwlth. 1993).
             Whether Claimant voluntarily terminated her employment is a question
of law. Watkins. Here, the UCBR’s findings of fact do not support its conclusion
that Claimant met her “burden of establishing . . . that . . . [her] separation from
                                           7
employment was involuntary . . . .” Id. at 1004. “A finding of voluntary termination
is essentially precluded unless the claimant has a conscious intention to leave [her]
employment. On the other hand, to be interpreted as a discharge, the employer’s
language must possess the immediacy and finality of a firing.” Id. Although the
UCBR found that “[C]laimant did not give a definite date of resignation[;]” (UCBR
Dec. at 1), she certainly indicated “a conscious intention to leave [her] employment.”
Watkins, 65 A.3d at 1004.      Moreover, the UCBR made no findings regarding
Employer’s language, let alone “language . . . possess[ing] the immediacy and finality
of a firing.” Id. Indeed, clearly absent from the UCBR’s findings of fact are any
actions made by Employer indicating a discharge of Claimant.
            “[E]xamin[ing] the testimony in the light most favorable to [Claimant,]
the prevailing party,” as we must, Claimant’s testimony, does not contain “relevant
evidence upon which a reasonable mind could base [the] conclusion” that Claimant
did not voluntarily quit her employment. Sanders, 739 A.2d at 618. Accordingly, the
UCBR’s conclusion that Claimant did not voluntarily quit her employment is not
supported by substantial evidence.

            [A] determination that a claimant voluntarily quit is not an
            absolute bar to the recovery of [UC] benefits. A claimant
            may prove necessary and compelling reasons that could
            excuse the voluntary action of the claimant. An employee
            seeking unemployment compensation after voluntarily
            terminating employment has the burden of proving cause of
            a necessitous and compelling nature for the voluntary quit.

Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006) (citations omitted). Here, however, when the
Referee asked Claimant “do you have a position as to whether you quit the
assignment with [Employer] or whether you were let go[,]” Claimant responded “I
review it as being let go because he had the opportunity to call me back and he did


                                          8
not.” R.R. at 16a. As Claimant contended at that time that she did not voluntarily
terminate her employment, she could not have proffered a necessitous and compelling
reason for doing so.
            Notwithstanding,

            [a]n employee who claims to have left employment for a
            necessitous and compelling reason must prove 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 her employment.

Brunswick Hotel, 906 A.2d at 660.         In the instant case, assuming Claimant
maintained she had a necessitous and compelling reason for leaving her employment,
she could not meet her burden of proving that she made a reasonable effort to
preserve her employment as she testified that she “did not contact [Employer]” when
he returned from his two-week absence. R.R. at 16a. Accordingly, we hold that
Claimant did not have a necessitous and compelling reason for voluntarily leaving her
employment.
            For all of the above reasons, the UCBR’s order is reversed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert A. Goldman,                    :
                       Petitioner     :
                                      :
                 v.                   :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 2392 C.D. 2014
                    Respondent        :


                                    ORDER

           AND NOW, this 25th day of September, 2015, the Unemployment
Compensation Board of Review’s December 11, 2014 order is reversed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
