           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John F. Herron,                              :
                           Petitioner        :
                                             :
                    v.                       :   No. 707 C.D. 2015
                                             :   SUBMITTED: October 9, 2015
Unemployment Compensation                    :
Board of Review,                             :
                    Respondent               :


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER                                 FILED: December 10, 2015


             John F. Herron (Claimant) petitions, pro se, for review of the order of
the Unemployment Compensation Board of Review (Board) that denied him
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law),1 beginning with the compensation week ending
November 29, 2014. We affirm the Board's order and remand this matter to the
Board to determine the amount of benefits, if any, to be paid Claimant under
Section 402(e) of the Law2 for the two-week notice period for his resignation,

    1
       Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) of the Law provides, in pertinent part, that an employee shall be
ineligible for compensation for any week "[i]n which his [or her] unemployment is due to
voluntarily leaving work without cause of a necessitous and compelling nature …."
     2
       Section 402(e) provides, in pertinent part, that an employee shall be ineligible for
compensation for any week "[i]n which his [or her] unemployment is due to his [or her]
(Footnote continued on next page…)
beginning November 8, 2014.
              Claimant worked for Fairway Motors (Employer), a car dealership, as
a sales consultant from March 31, 2008 until he was separated from employment
on November 8, 2014. The Scranton UC Service Center determined that Claimant
voluntarily quit his job without cause of a necessitous and compelling nature and
was, therefore, ineligible for benefits under Section 402(b) of the Law beginning
with the compensation week ending November 29, 2014. On appeal, the referee
held a hearing on January 20, 2015, at which Claimant and the owner of Employer,
James Corazza, both proceeding pro se, testified as to the circumstances
surrounding Claimant's separation from employment.
              Claimant testified that on Thursday, November 6, 2014, he drove his
wife's vehicle to work. That evening, Claimant noticed that the key to his wife's
vehicle was missing from the key ring. Claimant was able to open the vehicle's
door and start the engine with the key fob.                Claimant believed that Cory
Ustinovsky, who had just become Employer's assistant manager and his supervisor,
stole the key. Claimant was off the next day. On Saturday, November 8, Claimant
told Corazza that someone stole the key to his wife's vehicle. At Claimant's
request, Corazza's son then checked videotapes on the security camera for the time
frame when Claimant was away from his desk during the evening on November 6.
The videotapes showed Ustinovsky walking to Claimant's cubicle and walking out
after a few minutes, but did not show a key in Ustinovsky's hand.
              On November 10, 2014, Claimant submitted a two-week notice of

_____________________________
(continued…)
discharge or temporary suspension from work for willful misconduct connected with his [or her]
work …."



                                              2
resignation, stating that his "last day of employment will be Nov.[ ]21st." Certified
Record (C.R.), Item No. 6. Claimant told Corazza that he could not work with
Ustinovsky, who he believed stole the vehicle key. Claimant was concerned about
the safety of his family due to the missing key. He intended to work and earn
money during the two-week notice period and had a scheduled delivery of a
vehicle for a customer the next day at 1:00 p.m. As he was getting ready to go to
work the next day, the sales manager called and told him that Corazza did not want
him to be on Employer's premises.
             Corazza mostly agreed with Claimant's testimony. Corazza testified
that the sides of Claimant's cubicle were more than six feet high and that once
Ustinovsky was in the cubicle, he could not be seen on the security camera. When
questioned by Corazza, Ustinovsky denied Claimant's accusation, stating that he
went to Claimant's cubicle to answer the phone when it rang as he was walking on
the side of the showroom. Corazza told Claimant that the videotapes did not show
Ustinovsky stealing Claimant's key and that he could not do anything about
Claimant's accusation. Corazza testified that he did not allow Claimant to come to
work during the two-week notice period because Claimant was visibly upset, was
in no condition to deliver a new car to a customer and might work for another
dealership taking away customers from Employer. Corazza further testified that
Claimant was a good employee and could have his job back.
             The referee made the following factual findings in his decision:
             8. The claimant submitted his 2 weeks' notice of
             resignation because he felt that he could no longer work
             there with the supervisor who he believed had stolen his
             key.
             9. The employer did not believe there was sufficient
             evidence to prove that the supervisor had stolen the key
             and the supervisor was concerned about possible legal

                                         3
               action against the employer if anything else was done.
               10. The employer, seeing that the claimant was very
               upset when he was handing in his resignation, did not
               allow the claimant to work out the 2 weeks' notice, but
               rather ended the employment on November 8, 2014.
               11. As of the first week at issue, the week ending
               11/29/14, the period of the 2 weeks' notice ending date
               had passed.
               12. As of the period at issue, the claimant must be
               deemed to have voluntarily left work with the employer
               because he no longer wished to work with the supervisor,
               who he believed had stolen his vehicle key.
Referee's Findings of Fact Nos. 8-12. The referee concluded that Claimant failed
to establish a necessitous and compelling reason for voluntarily leaving work and
was, therefore, ineligible for benefits under Section 402(b) of the Law. The Board
adopted and affirmed the referee's decision.
               Claimant argues that he is entitled to benefits for the period of his
unemployment, including the two-week notice period for his resignation. Claimant
maintains that Employer discharged him on November 8, 2014 and did not allow
him to work during the two-week notice period.3
               A claimant has the burden of proving that his or her separation from
    3
       Claimant reiterates his assertion before the Board that the referee rushed through the
hearing. The Board rejected Claimant's assertion, stating: "The Referee allowed the claimant to
explain his side of the story and asked the claimant at the end of the hearing if there was
anything more to explain, to which the claimant replied no." Our review of the 20-page
transcript of the hearing shows that the referee fulfilled his obligation to reasonably assist
Claimant, who was proceeding pro se, to present evidence to support his claim, and "to elicit
facts that are probative to [his] case." Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d
606, 609 (Pa. Cmwlth. 2014). The record simply does not support Claimant's assertion. In the
brief, Claimant further asserts that the supervisor, who allegedly stole his key, was fired in
March 2015 and that he then accepted Employer's offer and got his job back at the end of March
2015. We note that because Claimant's averments of fact in the brief are not part of the certified
record, they cannot be considered on appeal. Empire Steel Castings, Inc. v. Workers' Comp.
Appeal Bd. (Cruceta), 749 A.2d 1021, 1025 (Pa. Cmwlth. 2000).



                                                4
employment was due to a discharge, rather than a voluntary quit. Pa. Liquor
Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124, 126 (Pa.
Cmwlth. 1994). A claimant is considered to have voluntarily left employment
when he or she exhibited a conscious intention to leave employment. Procyson v.
Unemployment Comp. Bd. of Review, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2010). On
the other hand, if the language used by an employer possessed the immediacy and
finality of a firing, a claimant has been discharged. Keast v. Unemployment Comp.
Bd. of Review, 503 A.2d 507, 509 (Pa. Cmwlth. 1986).              A determination of
whether the claimant's separation was a voluntary quit or a discharge is a question
of law to be determined by examining the facts surrounding the claimant's
separation from employment, as found by the Board. Pa. Liquor Control Bd., 648
A.2d at 126.
               Claimant testified that he intended to continue to work during the two-
week notice period for resignation. Corazza did not allow Claimant to work during
that period because Claimant was visibly upset and might work for another
dealership taking away customers from Employer.               The Board found that
Employer "did not allow the claimant to work out the 2 weeks' notice, but rather
ended the employment on November 8, 2014." Referee's Finding of Fact No. 10.4
The record thus establishes that Claimant was separated from employment when
Employer discharged him on November 8, 2014, not two weeks later on November
21 or 22 at the end of the two-week notice period for resignation, as the Board
stated. In addition, nothing in the record suggests that Claimant was discharged for


    4
      In an unemployment compensation case, the Board is the ultimate fact-finder and is
empowered to make credibility determinations. Elser v. Unemployment Comp. Bd. of Review,
967 A.2d 1064, 1069 n.8 (Pa. Cmwlth. 2009).



                                           5
willful misconduct. The Board stated, however, that the two-week notice period
had passed by Claimant's first benefit week, the week ending November 29, 2014,
without addressing whether Employer paid Claimant wages during that two-week
period. Hence, this matter should be remanded to the Board to determine the
amount of benefits, if any, to be paid Claimant under Section 402(e) of the Law for
the two-week notice period for his resignation, beginning November 8, 2104.5
              As to Claimant's eligibility for benefits after the two-week notice
period for his resignation, the record supports the Board's conclusion that he
voluntarily quit his employment. To be eligible for benefits under Section 402(b)
of the Law, a claimant must prove that the separation from employment was for a
necessitous and compelling reason. Karwowski v. Unemployment Comp. Bd. of
Review, 74 A.3d 1179, 1183 (Pa. Cmwlth. 2013).                  To meet that burden, the
claimant must demonstrate circumstances which placed a real and substantial
pressure upon him or her to terminate employment and which would also compel a
reasonable person to act in the same manner.              Id.     Whether the claimant's
termination of employment was for a necessitous and compelling reason is a
question of law subject to this Court's plenary review.                   Mansberger v.
Unemployment Comp. Bd. of Review, 785 A.2d 126, 128 (Pa. Cmwlth. 2001).
              As the Board found, there was insufficient evidence supporting
Claimant's accusation that his new supervisor stole the vehicle key. Claimant's
testimony merely expressing his sincere but unsubstantiated belief about the
supervisor's act alone cannot constitute a necessitous and compelling reason to
leave employment.       Telesound Rentals, Inc. v. Unemployment Comp. Bd. of

    5
     We note that there is a one-week waiting period for unemployment compensation. Section
401(e)(1) of the Law, 43 P.S. § 801(e)(1).



                                            6
Review, 616 A.2d 190, 192 (Pa. Cmwlth. 1992). An unsafe work environment can
be a necessitous and compelling reason to resign.           Green Tree Sch. v.
Unemployment Comp. Bd. of Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009).
Claimant, however, did not prove that his workplace was in fact dangerous. The
record instead demonstrates only Claimant's fears over the safety of his family due
to the lost vehicle keys, which cannot constitute a necessitous and compelling
reason to resign. Id. at 578. Claimant also testified that the supervisor was a
prankster and that he "could not work side by side" with that individual as his
supervisor. Notes of Testimony at 11; C.R., Item No. 11. It is well established,
however, that the claimant's potential personal conflicts with the supervisor and
dissatisfaction with work conditions cannot support a necessitous and compelling
reason to quit. Creason v. Unemployment Comp. Bd. of Review, 554 A.2d 177,
179 (Pa. Cmwlth. 1989).
            Accordingly, we affirm the Board's order denying Claimant benefits
under Section 402(b) of the Law, beginning with the compensation week ending
November 29, 2014, and remand this matter to the Board to determine the amount
of benefits, if any, to be paid Claimant under Section 402(e) of the Law for the
two-week notice period for his resignation, beginning November 8, 2014.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge




                                        7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John F. Herron,                            :
                         Petitioner        :
                                           :
                  v.                       :     No. 707 C.D. 2015
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


                                      ORDER


            AND NOW, this 10th day of December, 2015, the order of the
Unemployment Compensation Board of Review (Board) denying Petitioner, John
F. Herron, unemployment benefits under Section 402(b) of the Unemployment
Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. § 802(b), beginning with the compensation week
ending November 29, 2014 is AFFIRMED. This matter is REMANDED to the
Board to determine the amount of benefits, if any, to be paid Petitioner under
Section 402(e) of the Law for the two-week notice period for his resignation,
beginning November 8, 2014.
            Jurisdiction relinquished.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Judge
