             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle,                 :
                               :
                    Petitioner :
                               :
                 v.            : No. 1446 C.D. 2016
                               : Submitted: February 10, 2017
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: June 5, 2017

                James Lyle (Claimant), proceeding pro se, petitions for review from
the order of the Unemployment Compensation Board of Review (Board) that
determined that he was ineligible for unemployment compensation (UC) benefits
pursuant to Section 402(b) of the Unemployment Compensation Law (Law)1
(relating to voluntary termination). Claimant contends the Board disregarded
evidence and erred in determining he quit without a necessitous and compelling
reason. Discerning no error, we affirm.
                Claimant worked for Family Dollar Stores (Employer) as a full-time
store manager from February 1, 2016, until April 20, 2016. After his separation


       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
from employment, Claimant applied for UC benefits. The local service center
denied benefits under Section 402(b) of the Law. Certified Record (C.R.), No. 6
(Notice of Determination). Claimant appealed, and a referee held a hearing, at
which neither Claimant nor Employer appeared.             C.R., Nos. 11 (Hearing
Transcript, 5/26/16) and 12 (Referee’s Decision, 5/27/16). The referee affirmed
the denial of benefits.
             Claimant appealed to the Board, and asserted he never received notice
of the referee’s hearing. The Board remanded the matter to the referee to serve as
the Board’s hearing officer to receive testimony and evidence on Claimant’s
reasons for his nonappearance at the initial hearing as well as on the merits.
Claimant appeared and testified at the remand hearing. Employer did not appear.
             Based on the testimony and evidence presented, the Board found that
Claimant did not attend the initial referee hearing because he did not receive notice
of the hearing. Claimant testified that: he was having issues with his mail, which
were unrelated to his UC claim; the issues began prior to working for Employer;
and he notified the U.S. Postal Service of the problem. Board Remand Hearing,
7/12/16, Notes of Testimony (N.T.) at 3. Claimant also presented evidence in
support. C.R., No. 20 (Claimant’s Remand Exhibits Nos. 1 and 2). The Board
credited Claimant’s testimony in this regard and determined he established good
cause for his nonappearance at the initial hearing.
             As to the merits, the Board found that, when problems arose at
Claimant’s store, his supervisor often threatened to fire him. Claimant became
upset with supervisor’s behavior. To remedy the situation, Claimant contacted
Employer’s ethics department.      The ethics department began investigating the
supervisor’s behavior. On April 20, 2016, Claimant voluntarily terminated his


                                          2
employment because of a personality conflict with his supervisor. Claimant did
not allow Employer’s ethics department to complete its investigation prior to
voluntarily terminating his employment. Board Opinion, 8/8/16, Findings of Fact
(F.F.) Nos. 3-7.
              Ultimately, the Board concluded that Claimant voluntarily terminated
his employment based on a personality conflict with his supervisor. Claimant did
not allow the ethics department to conclude its investigation prior to voluntarily
terminating his employment. Claimant did not assert that the ethics investigation
would be futile or provide sufficient explanation to justify his actions. The Board
determined Claimant did not act in the manner a reasonable person would under
the same circumstances as he did not exhaust all remedies prior to quitting his
employment. Thus, the Board concluded Claimant was ineligible for benefits
under Section 402(b) having voluntarily quit his employment without a necessitous
and compelling reason.          Claimant requested reconsideration based on new
information that Employer never followed through with the investigation after he
quit, thereby making the investigation a futile act. C.R., No. 22 (Request for
Reconsideration). The Board denied the request. Claimant now petitions for
review.2
              Claimant argues that the Board erred in determining he quit his
employment without cause of a necessitous and compelling nature. He contends
the Board disregarded the threatening text messages that his supervisor sent to him.


       2
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Johns v.
Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), appeal
denied, 97 A.3d 746 (Pa. 2014).


                                              3
He claims the Board ignored other evidence showing his repeated contacts with the
corporate headquarters to resolve the situation went unanswered. In addition,
Claimant asserts that the Board erred in denying his request to produce newly-
discovered evidence showing Employer never completed the investigation after he
quit. He advances that he was prejudiced by Employer’s nonappearance at the
remand hearing to explain why the investigation was not completed.
            To begin, a review for capricious disregard of material, competent
evidence is an appropriate component of appellate review in any case in which the
question is properly raised before a court. Leon E. Wintermyer, Inc. v. Workers’
Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002); see Diehl
v. Unemployment Compensation Board of Review, 4 A.3d 816, 824 (Pa. Cmwlth.
2010), reversed on other grounds, 57 A.3d 1029 (Pa. 2012).            A capricious
disregard of evidence occurs where the “findings reflect a deliberate disregard of
competent evidence that logically could not have been avoided in reaching the
decision . . . .” Pryor v. Workers’ Compensation Appeal Board (Colin Service
Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2007). Where substantial evidence
supports the findings, and those findings in turn support the conclusions, it should
remain a rare instance where an appellate court disturbs an adjudication based on
capricious disregard. Wintermyer, 812 A.2d at 487.
            Further, the Board is the ultimate fact-finder in UC matters and is
empowered to resolve all conflicts in the evidence, witness credibility, and weight
accorded to the evidence.         Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant
whether the record contains evidence to support findings other than those made by
the fact-finder; the critical inquiry is whether there is evidence to support the


                                         4
findings actually made. Id. Where substantial evidence supports the Board’s
findings, they are conclusive on appeal. Id. In addition, we must examine the
testimony in the light most favorable to the party in whose favor the fact-finder
ruled, giving that party the benefit of all logical and reasonable inferences from the
testimony. Id.
             Section 402(b) of the Law provides 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). The question of whether a claimant has a necessitous and
compelling reason to terminate employment is a question of law reviewable by this
Court. Middletown Township v. Unemployment Compensation Board of Review,
40 A.3d 217, 227 (Pa. Cmwlth. 2012).
             An employee who claims to have left employment for a necessitous
and compelling reason bears the burden of proof. Middletown Township, 40 A.3d
at 227-28. To prove a necessitous and compelling reason for leaving employment,
a claimant must demonstrate the following: “(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.”           Solar Innovations, Inc. v.
Unemployment Compensation Board of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth.
2012) (quoting Brunswick Hotel & Conference Center, LLC v. Unemployment
Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006)). An
employer has no burden of proof in a voluntary quit case.                 Earnest v.
Unemployment Compensation Board of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth.


                                          5
2011) (citing Johnson v. Unemployment Compensation Board of Review, 869 A.2d
1095, 1104 (Pa. Cmwlth. 2005)).
             Here, Claimant does not challenge any of the Board’s actual findings.
“Unchallenged findings are conclusive on appeal . . . .” Munski v. Unemployment
Comp. Bd. of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011). Rather, Claimant
contends that the Board failed to consider evidence demonstrating a necessitous
and compelling reason to terminate his employment based on the threats of his
supervisor and Employer’s inaction. Claimant testified that he was new to the job,
he was not adequately trained in certain areas, and that shortly after he started
issues arose at the store that he managed. N.T. 4-5. Claimant testified and
presented text messages that his supervisor threatened to fire him on April 3, 2016,
for not meeting payroll. N.T. at 5; C.R., No. 20 (Claimant’s Remand Exhibit No.
3). His supervisor threatened him again on April 17, 2016, when Claimant was not
available to close the store personally.     N.T. at 7; C.R., No. 20 (Claimant’s
Remand Exhibit No. 3).        Contrary to Claimant’s assertions that the Board
disregarded this evidence, the Board considered this evidence and specifically
found that his “supervisor would often threaten to fire” him. F.F. No. 3.
             As for Claimant’s claim that the evidence showed that Employer did
not take action, Claimant testified that, after the first incident, Claimant left two
voicemail messages for his supervisor’s boss, but she did not return his call. N.T.
at 7.    He also unsuccessfully attempted to contact Employer’s corporate
headquarters via Facebook. N.T. at 7.
             Then, on April 15, 2016, he contacted Employer’s third-party ethics
department, and filed a complaint. N.T. at 7. The call taker advised that Employer
would contact him within 14 days regarding his complaint. N.T. at 7. On April


                                         6
18, 2016, Employer notified Claimant that the matter was assigned to an
investigator in his region. N.T. at 8. Two days later, on April 20, 2016, the
regional investigator contacted Claimant.         N.T. at 8.   The investigator asked
Claimant details about the working conditions, what transpired, and his complaints.
N.T. at 8-9. She asked Claimant to forward the text messages as well as any
voicemail messages from his supervisor. N.T. at 9.
             Later that same day, Claimant quit his employment. N.T. at 9. When
the hearing officer asked Claimant why he did not wait for the investigation to
move forward, Claimant responded that he was afraid he would lose his job. N.T.
at 9. Claimant repeatedly testified that he quit because he thought he might be
fired. N.T. at 5, 7, 9, 11. Claimant admitted that he quit while Employer was
“trying to investigate” and “figure it out.” N.T. at 9.
             Based on this evidence, the Board found that Claimant did not allow
Employer’s ethics department to complete its investigation prior to voluntarily
terminating his employment.       F.F. No. 7.      Although Claimant may not have
received a response from his supervisor’s boss or corporate headquarters, upon
contacting the ethics department, an investigation into Claimant’s complaint was
opened immediately and the matter was assigned to an investigator. Within five
days of contacting the ethics department, a regional investigator contacted
Claimant. However, Claimant quit the very day the regional investigator contacted
him. Claimant admitted he did not allow the ethics department to conclude its
investigation prior to quitting. N.T. at 9.
             By not giving Employer an opportunity to complete the investigation
and rectify the situation prior to quitting, Claimant did not make a reasonable effort
to preserve his employment.           See St. Barnabas, Inc. v. Unemployment


                                              7
Compensation Board of Review, 525 A.2d 885, 888 (Pa. Cmwlth. 1987) (a
claimant was ineligible where the claimant “submit[ted] her resignation without
giving the [e]mployer the opportunity to solve the problem”); see also Western and
Southern Life Insurance v. Unemployment Compensation Board of Review, 913
A.2d 331, 337 (Pa. Cmwlth. 2006) (noting that where a claimant voluntarily
terminates employment after receiving notice that the employer is committed to
resolving the work problems does not evidence a good faith effort to preserve
employment). Moreover, Claimant’s testimony that he quit out of fear that he
would be fired does not constitute real and substantial pressure to terminate
employment. See Department of Corrections v. Unemployment Compensation
Board of Review, 547 A.2d 470, 474 (Pa. Cmwlth. 1988) (general fear of losing job
did not rise to a cause of a necessitous and compelling nature to quit employment);
see also Johnson, 869 A.2d at 1107 (fear about future employment was
speculative). Upon review, we conclude that the Board did not err or disregard the
evidence presented at the hearing in determining that Claimant is ineligible for
benefits under Section 402(b).
             Notwithstanding, Claimant contends that the Board erred in denying
his request for reconsideration based on alleged after-discovered evidence, which
was not available at the time of hearing, that Employer never followed through
with the investigation after Claimant quit. He asserts that this evidence proves that
Employer’s investigation was futile. See Martin v. Unemployment Compensation
Board of Review, 749 A.2d 541, 544 (Pa. Cmwlth. 2000) (an employee may be
excused from reporting sexual harassment to the employer if the employee
reasonably believed that reporting would have been futile).




                                         8
             However, Claimant did not appeal the Board’s order denying
reconsideration. See Pa. R.A.P. 1512(a)(1) (petitions for review must be filed
within 30 days of the entry of an order from which an appeal is taken). Therefore,
our review is limited to Claimant’s appeal of the merits decision. Nevertheless,
even if properly before us, we would discern no abuse of discretion in the Board's
denial of Claimant's request for reconsideration.
             The Board’s regulations provide that reconsideration will be granted
“only for good cause in the interest of justice without prejudice to any party.”
34 Pa. Code §101.111(b).      “In determining whether ‘good cause’ exists, the
[Board] must consider whether the party requesting reconsideration has presented
new evidence or changed circumstances or whether [the Board] failed to consider
relevant law.” Laster v. Unemployment Compensation Board of Review, 80 A.3d
831, 834 (Pa. Cmwlth. 2013) (quoting Ensle v. Unemployment Compensation
Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999)).
             Claimant requested reconsideration to introduce evidence that
Employer discontinued the investigation after he quit. Such evidence is irrelevant
because it would not establish the futility of Employer’s efforts before he quit.
Thus, the Board did not err or abuse its discretion in denying Claimant’s request
for reconsideration.
             Insofar as Claimant complains that Employer did not appear at the
remand hearing, where a claimant voluntarily terminates his employment, an
employer bears no burden of proof. Earnest, 30 A.3d at 1256. Rather, it is the
claimant’s burden to prove entitlement to benefits.       Id.   Thus, Employer’s
appearance was not necessary. If Claimant believed Employer’s appearance was
necessary for him to carry his burden, Claimant could have subpoenaed


                                         9
Employer’s witnesses.       However, Claimant neither made such a request nor
expressed any desire to obtain evidence from Employer at the hearing. Cf. Coates
v. Unemployment Compensation Board of Review, 676 A.2d 742, 744 n.3
(Pa. Cmwlth. 1996) (where the claimant expressed the need for evidence from the
employer that was solely within the employer’s possession, we noted that a referee
has a responsibility to assist a pro se claimant so that facts necessary for the
decision may be adequately developed).            Again, any evidence showing that
Employer discontinued the investigation after Claimant quit would not prove the
futility of the investigation at the time that he did quit.
             Accordingly, we affirm.




                                         MICHAEL H. WOJCIK, Judge




                                            10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle,                 :
                               :
                    Petitioner :
                               :
                 v.            : No. 1446 C.D. 2016
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


                              ORDER


           AND NOW, this 5th day of June, 2017, the order of the
Unemployment Compensation Board of Review, dated August 8, 2016, is
AFFIRMED.




                                __________________________________
                                MICHAEL H. WOJCIK, Judge
