           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter Navarro,                                :
                             Petitioner       :
                                              :
                v.                            :   No. 633 C.D. 2015
                                              :   Submitted: September 11, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: October 23, 2015

                In this appeal, Peter Navarro (Claimant), representing himself, asks
whether the Unemployment Compensation Board of Review (Board) erred in
determining he was ineligible for unemployment compensation (UC) benefits
under Section 402(b) of the Unemployment Compensation Law1 (Law) (relating to
voluntary termination) and assessing a fault overpayment against him. Claimant
contends the Board’s decision is erroneous and its findings are not supported by
substantial evidence. In particular, he claims: he did not voluntarily quit but was
constructively terminated from employment; he made reasonable efforts to
preserve his employment despite a unilateral change to the terms of his
employment; and, he did not misrepresent his separation to unemployment
authorities warranting a fault overpayment. Upon review, we affirm.

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
                                        I. Background
                Claimant worked for Volume Graphics, Inc. (Employer) as a full-time
technical solutions expert for three days in August 2014. After his separation from
employment, Claimant applied for UC benefits. The local service center issued
two determinations: one denying benefits under Section 402(b) of the Law, the
other establishing a fault overpayment of benefits. Certified Record (C.R.), Item
No. 6 (Notices of Determinations).             Claimant appealed, and a referee held a
hearing.


                At the hearing, the referee heard testimony from Claimant and Roger
Wende, Employer’s North American Sales Manager (Sales Manager).2 Based on
the evidence presented, the referee affirmed the service center’s decisions.
Claimant appealed to the Board. The Board made the following findings.


                Claimant worked for Employer for three days beginning on August
11, 2014, and ending on August 13, 2014, at a final rate of pay of $68,000 per year.
During the interview process, Employer informed Claimant that he was expected
to travel up to 50 percent of the time for the first year, and he was required to travel
to customer sites.         On Claimant’s first day of employment, Sales Manager
provided him with his travel schedule. Claimant did not express concern to Sales
Manager about the travel schedule. Bd. Op., 2/20/15, Findings of Fact (F.F.) Nos.
1-4.




       2
           Neither Claimant nor Employer was represented by counsel at the hearing.



                                                2
             On the second day, Employer’s office manager advised Sales
Manager that Claimant was concerned about the amount of travel required. Sales
Manager and Claimant discussed the travel schedule, and Sales Manager advised
Claimant he would try to find out what would work well for him. Claimant left
work that day after working approximately an hour and a half. Claimant did not
notify Sales Manager that he was leaving early. F.F. Nos. 5-8.


             On Claimant’s third and final day, Sales Manager told Claimant he
detected red flags and the job would require traveling. After Sales Manager asked
Claimant “if he was a team player and if they should continue to work together or
‘part ways,’” Claimant began to pack up his things and said, “well, looks like a
decision has been made.” F.F. No. 11. Claimant left Employer’s facility. F.F.
Nos. 9-12.


             The Board further found Claimant voluntarily quit his employment for
unknown reasons. F.F. No. 13. Claimant filed for, and received, UC benefits for
claim weeks ending September 13, 2014, through September 27, 2014, in the
amount of $526 per week, which totaled $1,578. F.F. No. 14. Claimant informed
the service center he was separated from employment based on lack of work. F.F.
No. 15. Claimant deliberately deceived UC authorities by reporting lack of work
and by failing to report that he voluntarily quit. F.F. No. 16.


             Ultimately, the Board resolved the conflicts in testimony, in relevant
part, in favor of Employer, specifically finding Sales Manager’s testimony
credible. Bd. Op., at 23. The Board determined Claimant was ineligible for



                                          3
benefits having voluntarily quit his employment without a necessitous and
compelling reason. Thus, it affirmed the referee’s decision and denied benefits. In
addition, the Board assessed a fault overpayment of $1,578, subject to recoupment
pursuant to Section 804(a) of the Law, 43 P.S. §874. Claimant’s appeal to this
Court followed.

                                          II. Issues
              On appeal,3 Claimant argues the Board’s determination of voluntary
termination of employment without cause is erroneous and is not supported by
substantial evidence. According to Claimant, Employer was aware he was seeking
a position with less travel.        He accepted the position based on Employer’s
representation that he could expect to travel 50 percent or less of the time.
However, upon receiving the travel schedule on his first day, it was substantially
more than what they initially agreed such that Employer altered the terms of the
position. Claimant immediately expressed his concern.


              According to Claimant, Employer suggested they part ways and
escorted him to the door. Claimant argues Employer’s actions had the immediacy
and finality of a termination. Alternatively, Claimant contends he was compelled
to leave because Employer unilaterally and substantially changed the terms of
employment. Either way, the evidence does not support a finding that Claimant
voluntarily quit without a necessitous and compelling cause. Finally, Claimant


       3
         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. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth.),
appeal denied, 97 A.3d 746 (Pa. 2014).



                                              4
contends he did not deceive UC authorities by truthfully advising them he was
unemployed through no fault of his own.

                                III. Discussion
                 A. Constructive Discharge or Voluntary Quit
             First, Claimant contends the Board’s findings regarding his separation
are not supported by substantial evidence. Claimant asserts the Board improperly
relied on hearsay evidence, specifically, a letter from the office manager and Sales
Manager’s statements regarding what Claimant said in reaching its findings.
Claimant maintains the Board should have relied on Claimant’s version of the
facts, not Sales Manager’s. According to Claimant, he did not voluntarily quit his
employment. Rather, Employer constructively discharged him. More particularly,
Employer asked him to leave and escorted him to the door, which had the
immediacy and finality of a firing.


             Under Section 402(b) of the Law, an employee is ineligible for UC
benefits for any week in which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature. 43 P.S. §802(b);
Genetin v. Unemployment Comp. Bd. of Review, 451 A.2d 1353 (Pa. 1982). In a
voluntary quit case, it is the claimant's burden to prove that his separation from
employment is involuntary. Bell v. Unemployment Comp. Bd. of Review, 921
A.2d 23 (Pa. Cmwlth. 2007). In order for an employer's actions to constitute a
discharge, the claimant must show that the employer's actions had the immediacy
and finality of a “firing.” Id. at 26. However, the employer need not specifically
use terms such as “fired” or “discharged.” Id. Whether a claimant's separation




                                          5
from employment is voluntary or a discharge is a question of law for this Court to
determine from the totality of the record. Id.


             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 Indus., Inc. v. Unemployment Comp. Bd. 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 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.


             While hearsay evidence, admitted without objection, may support a
finding of fact in a UC case, it may only do so if it is corroborated by other
competent evidence of record. Myers v. Unemployment Comp. Bd. of Review,
625 A.2d 622 (Pa. 1993); Walker v. Unemployment Comp. Bd. of Review, 367
A.2d 366 (Pa. Cmwlth. 1976). “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Pa. R.E. 801(c).      An out-of-court statement
offered to explain course of conduct, however, is not hearsay. Architectural
Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277 (Pa.
Cmwlth. 2008) (providing out-of-court statements regarding a claimant's subpar
job performance and suspected alcohol abuse did not constitute hearsay because



                                          6
they were not offered for the truth of the matter asserted, but were offered to show
employer's reasonable suspicion to request a drug test). In addition, the admission
of a party opponent is admissible as an exception to the hearsay rule. Pa. R.E.
803(25); see Sargent v. Unemployment Comp. Bd. of Review, 630 A.2d 534
(Pa. Cmwlth. 1993) (a claimant's statements in initial interview form are
admissible because he is the one making the admissions and, therefore, the
evidence constitutes a party admission).


            Here, the Board’s findings regarding Claimant’s separation from
employment are supported by substantial, competent evidence in the record, in
particular, Sales Manager’s testimony. Sales Manager testified he detected “red
flags,” and he attempted to discuss his concerns with Claimant on his third and last
day of work. F.F. No. 10; C.R., Item No. 15, Referee’s Hr’g, Notes of Testimony
(N.T.), 11/13/14, at 19. Sales Manager told Claimant he needed “a team player,”
and that the job would require traveling. F.F. No. 11; N.T. at 19. Sales Manager
asked whether they should continue to work together or whether they should “part
ways.” F.F. No. 11; N.T. at 20, 23. Claimant never answered the question. N.T.
at 19, 20. Instead, Claimant packed his backpack, said “well, looks like a decision
has been made,” and walked out. F.F. No. 11; N.T. at 19, 20.


            According to Sales Manager, he never indicated Claimant was fired,
but he needed reassurance from him that he could do the job, which entailed
traveling. N.T. at 19. Sales Manager testified he never said he was going “to get




                                           7
rid of [Claimant],” and he did not write a termination letter.4 Id. Rather, he gave
Claimant the option of staying, but Claimant simply “got up and left.” Id. at 20.
Sales Manager escorted Claimant out of the office and wished him well. Id.


               Although Claimant testified regarding his version of events, the Board
credited Sales Manager’s version. To the extent Claimant contends the Board
erred in finding Employer’s evidence credible over his, such credibility
determinations are within the sole province of the Board and will not be disturbed
on appeal. See Ductmate.


               Further, contrary to Claimant’s assertions, the Board did not
improperly rely on hearsay evidence. Claimant takes issue with a letter referenced
by Sales Manager in his testimony, over Claimant’s objections.5 N.T. at 17-18. In
the letter, Employer’s office manager reported Claimant’s concerns about the
position and the amount of travel involved. C.R., Ex. No. E3; N.T. at 6, 17-18.
However, the letter was not hearsay because it was not offered to prove the truth of


       4
          Although Sales Manager occasionally referred to Claimant’s separation as “the
termination,” when read within the context of his testimony, it is clear his reference to “the
termination” simply refers to the cessation of employment, not a discharge or firing. N.T. at 17.

       5
          Claimant also objected to the admission of this exhibit on the basis that he did not
receive a copy of it prior to the hearing. N.T. at 6. However, the referee overruled this objection
upon determining all exhibits were mailed to Claimant’s address on file. Id.; compare C.R., Ex.
Nos. 2, 4, 9, 10-11, 14, 17 (listing 1225 S. Church St., Apt. 325, Charlotte, NC 28203) and C.R.,
Ex. Nos. E1-E4 (same address). Although Claimant disputed receiving any exhibits, he
confirmed he received a packet of documents from the Department of Labor and Industry, which
included the notices of determinations and Exhibit No. 2. See id. at 4-5, 11. Moreover, the
entire case file was available for review prior to the start of the hearing. Id. at 6. Therefore,
Claimant’s challenge in this regard is unavailing and is not supported by the record.



                                                8
the matter asserted therein. Rather, it was offered to explain Sales Manager’s
course of conduct in meeting with Claimant to discuss whether the position was the
right fit for him. See N.T. at 17-18. Moreover, Claimant himself testified he
spoke with the office manager regarding his concerns over the extent of travel
involved. Id. at 9-10, 13-14, 15.


                Claimant also challenges the Board’s reliance on Sales Manager’s
testimony regarding what Claimant said to him in their meetings. Id. at 18-19.
However, such testimony qualifies as a hearsay exception as an admission by a
party opponent. See Pa. R.E. 803(25); Sargent.


                Upon review, we conclude the Board’s findings are supported by
substantial, competent evidence.              In turn, the Board’s findings support the
conclusion that Claimant voluntarily quit his employment. Contrary to Claimant’s
assertions, Sales Manager’s actions did not carry the immediacy and finality of a
discharge. See Bell. Rather, Sales Manager gave Claimant a choice to stay or part
ways. N.T. at 19-20, 23. Claimant chose the latter.6 Thus, we are satisfied the
Board did not err in concluding Claimant voluntarily quit.

                          B. Necessitous and Compelling Cause
                Alternatively, Claimant contends he established necessitous and
compelling cause to leave employment because Employer unilaterally altered the
terms of employment. According to Claimant he accepted the position because it
would entail no more than 50 percent of travel time. However, on his first day, he

      6
          In fact, Claimant admits he “quit” the position in this appeal. Pet’r’s Reply Br. at 11.



                                                  9
received a travel schedule that included substantially more travel than 50 percent.
Claimant contends he discussed his concerns with Employer in an effort to
preserve his employment, but to no avail.


            It is the claimant's burden to show necessitous and compelling cause
for terminating employment. Middletown Twp. v. Unemployment Comp. Bd. of
Review, 40 A.3d 217 (Pa. Cmwlth. 2012). To prove necessitous and compelling
cause to terminate employment, a claimant must show: 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)
claimant acted with ordinary common sense; and, 4) claimant made a reasonable
effort to preserve his employment. Brunswick Hotel & Conference Ctr., LLC v.
Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). What
constitutes a necessitous and compelling cause to voluntarily terminate
employment is a question of law subject to this Court's review. Id.


            An employer's imposition of a substantial, unilateral change in the
terms of employment may constitute a necessitous and compelling reason for an
employee to terminate employment. Id.; McCarthy v. Unemployment Comp. Bd.
of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003); Fitzgerald v. Unemployment
Comp. Bd. of Review, 714 A.2d 1126 (Pa. Cmwlth. 1998). However, “mere
discontent with wages, hours and working conditions is not adequate to cause a
necessitous and compelling reason for an employee to quit.” Brunswick, 906 A.2d
at 663.




                                        10
             Here, Claimant's assertion that Employer altered the terms of
employment is not supported by the record. Both Claimant and Sales Manager
testified they agreed the job would entail 50 percent or less travel at hiring. N.T. at
9, 12, 15, 21. According to Claimant, the travel schedule he received on his first
day entailed far more extensive travel. Id. at 9-10. However, Sales Manager
credibly testified Claimant was not required to travel more than 50 percent of the
time. Id. at 21. Sales Manager explained that, although Claimant’s initial travel
schedule was busy for purposes of training, within the context of the calendar year
and the first 17 weeks of employment, travel did not exceed 50 percent. Id. at 17,
18, 21. The Board credited Sales Manager’s testimony in this regard. Thus,
contrary to Claimant’s assertions, Employer did not change the terms of
employment by requiring more travel.


             Moreover, Claimant did not make a reasonable effort to preserve his
employment. When Sales Manager asked whether Claimant could be a team
player or whether they should part ways, Claimant left. Consequently, Claimant
did not show a compelling and necessitous reason to quit.


                              C. Fault Overpayment
             Lastly, Claimant contends he did not deceive UC authorities by
indicating lack of work as the reason for his separation. He claims the Board’s
finding that he reported lack of work is not supported by the record.


             Section 804(a) of the Law provides “[a]ny person who by reason of
his fault has received any sum as compensation under this act to which he was not



                                          11
entitled, shall be liable to repay ... a sum equal to the amount so received by him
and interest ....” 43 P.S. §874. “The word ‘fault’ within the meaning of Section
804(a) of the Law connotes an act to which blame, censure, impropriety,
shortcoming or culpability attaches.” Castello v. Unemployment Comp. Bd. of
Review, 86 A.3d 294, 298 (Pa. Cmwlth. 2013) (quoting Amspacher v.
Unemployment Comp. Bd. of Review, 479 A.2d 688, 691 (Pa. Cmwlth. 1984)).
“Conduct that is designed to improperly and intentionally mislead the [UC]
authorities is sufficient to establish a fault overpayment.” Id. For example, an
intentional misstatement on an application for benefits can support a finding of
fault under Section 804(a). Id.


            Here, the Board found Claimant deliberately deceived UC authorities
by stating he was separated due to “lack of work,” and he did not advise them that
he voluntarily quit. F.F. No. 16. This finding is supported by Claimant’s own
testimony. N.T. at 10-11. Specifically, Claimant testified:

            R      [W]hat did you tell the [s]ervice [c]enter when you
                   filed for Unemployment benefits? What is the
                   reason why you separated?
            C      I don’t have any wish to resign or (inaudible).
            R      Okay. Did you call up somebody?
            C      Yes. I don’t recall the conversation though.
            R      You don’t remember. Okay. So, then that, I guess
                   I’m showing here that you indicated lack of work.
            C      Well, it does mean a lack of work.
            R      I’m just asking what you told the [s]ervice
                   [c]enter.
            C      Unfortunately, I don’t recall, Miss.
                                         ***

                                        12
             R      ... [The Initial Claims Management System -
                    Claims Transcript] says reason for separation ... is
                    lack of work. All right. But you don’t remember
                    what you told them, but they put in lack of work?
             C      Yeah. It would, it definitely would have been lack
                    of work.

Id. Claimant did not advise authorities that he voluntarily quit. See id. Although
there was some discrepancy between Claimant’s testimony and his answers on the
claims form,7 the Board clearly relied on Claimant’s testimony in finding Claimant
reported “lack of work” as the reason reported for his unemployment.


             By not advising UC authorities that he quit his employment, Claimant
received benefits in the amount of $1,578, to which he was not entitled. Thus, the
Board properly imposed a fault overpayment pursuant to Section 804(a) of the
Law.


                                    IV. Conclusion
             In sum, the Board’s findings are supported by substantial evidence.
The Board properly determined Claimant was ineligible for benefits having
voluntarily quit his employment without a compelling and necessitous cause.
Because Claimant received benefits, by his own fault, by misrepresenting that he
was unemployed because of lack of work, the Board did not err by entering a fault
overpayment subject to recoupment against him.



       7
        Review of the initial claims form reveals Claimant selected “other reasons” for his
unemployment. C.R., Ex. No. 2, at 7. However, other documents indicate he reported “lack of
work.” See C.R., Ex. Nos. 5, 8.



                                            13
Accordingly, we affirm.




                          ROBERT SIMPSON, Judge




                           14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter Navarro,                       :
                      Petitioner     :
                                     :
            v.                       :   No. 633 C.D. 2015
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER

            AND NOW, this 23rd day of October, 2015, the order of the
Unemployment Compensation Board of Review is AFFIRMED.



                                    ROBERT SIMPSON, Judge
