             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth Pacanowski,                             :
                Petitioner                      :
                                                :
                      v.                        :    No. 1255 C.D. 2018
                                                :    Submitted: April 11, 2019
Unemployment Compensation Board                 :
of Review,                                      :
               Respondent                       :
                                                :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: May 2, 2019


       Kenneth Pacanowski (Claimant) petitions for review of an Order of the
Unemployment Compensation Board of Review (Board) finding Claimant ineligible
for benefits pursuant to Section 402(b) of the Unemployment Compensation Law
(UC Law).1 Claimant asserts the Board erred because the evidence shows he
resigned in the face of imminent discharge, and, as a result, the Board should have


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b), which provides, in relevant part that “[a]n employe 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.”
evaluated this case under Section 402(e) of the UC Law.2 Because Chester County
Intermediate Unit (Employer) did not show Claimant engaged in willful misconduct,
Claimant argues he is entitled to unemployment compensation (UC) benefits. Based
upon the findings made by the Board, which are supported by substantial evidence,
we affirm.
       Claimant worked as a part-time instructor for Employer from October 2016
to August 16, 2017,3 at which time he submitted his resignation. Whether Claimant
voluntarily quit or resigned because he was facing imminent discharge is at the heart
of this appeal.
       Following his separation from employment, Claimant applied for benefits.
The local Service Center issued a Notice of Determination finding Claimant
voluntarily quit and was accordingly ineligible for benefits under Section 402(b).
(Reproduced Record (R.R.) at 23a.) Claimant appealed the Notice of Determination,
and a hearing was scheduled before a Referee, at which Claimant, pro se, and a
witness for Employer, its principal (Principal) testified. Based upon the evidence
presented, the Referee made the following pertinent findings of fact:

       3. The claimant was hired to work for [Employer] with an emergency
       teaching certification.

       4. In order to continue working for [Employer] for the 2017-2018
       academic year, the claimant was required to obtain certification in
       agricultural mechanization.

       5. Temple University offered a certification program in that field. The
       program offered the courses on line[.]

       2
          43 P.S. § 802(e). Section 402(e) provides that an employee is ineligible for UC benefits
if “his unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work.” Id.
        3
          Claimant’s last day of work was actually June 9, 2017, which was the last day of the
2016-17 school year.


                                                2
      6. The claimant began researching pursuing a certification in farm
      agriculture at Penn State.

      7. The claimant was pursuing that certification in order to be qualified
      to teach part time as an agricultural instructor for the Oxford School
      District.

      8. On May 25, 2017, the claimant applied to the agricultural
      certification program offered by Penn State.

      9. On June 27, 2017, the claimant was accepted into the Penn State
      agricultural certification program.

      10. At that time, the claimant saw the classes he was required to take
      in person in State College[,] Pennsylvania, and the times they were
      offered.

      11. At that time, the claimant discovered he could not enroll in the
      program at Penn State due to the distance and the times the courses
      were offered, and also because of his other responsibilities.

      12. Between June 27 and July 27, 2017, the claimant took no steps to
      enroll in the agricultural mechanization program offered by Temple
      University in order to obtain the certification required to continu[e] to
      teach for [Employer].

      13. On or about July 27, 2017, the claimant resigned from his teaching
      position with the Oxford School District.

      14. Between July 27, 2017[,] and August 17, 2017, the claimant took
      no action to become enrolled in the Temple University agricultural
      certification [program] in order to obtain the necessary certification to
      continue to teach for [Employer].

      15. On August 16, 2017, the claimant was not enrolled in any program
      to obtain a certification in order to continue teaching.

      16. On or about August 16, 2017, the claimant resigned from his
      position with [Employer] because he did not possess the certification to
      continue teaching.

(Referee Decision, Findings of Fact (FOF) ¶¶ 3-16.)


                                         3
       The Referee determined Claimant did not seek to preserve his employment
before resigning because, after finding out Penn State was no longer an option,
Claimant still took no action to enroll at Temple, where he could have obtained the
agricultural mechanization certificate he needed to maintain his position with
Employer.4 (Referee Decision at 3.) Thus, the Referee concluded Claimant did not
establish a necessitous and compelling reason for leaving his employment or make
a good faith effort to preserve his employment. (Id.) Accordingly, the Referee
issued an Order affirming the Service Center’s determination and finding Claimant
was not eligible for benefits under Section 402(b).
       Claimant5 appealed to the Board, which adopted the Referee’s findings and
conclusions and incorporated them as its own. The Board rejected Claimant’s
argument that he resigned in lieu of imminent discharge such that Section 402(e)
would have controlled. In doing so, the Board credited the testimony of Principal
that Claimant was not informed by Employer that he would be discharged if he did
not resign. The Board found that Claimant attempted to rely upon hearsay testimony
that a union representative told him he was going to be discharged by Employer at a
meeting scheduled for August 17, 2017, if he did not resign, and noted that the union
representative was not Employer. The Board concluded Claimant resigned because
he was concerned that he could not go back to teaching if he was terminated.
However, it noted, when an employee resigns to avoid the possibility of dismissal,
the employee’s separation is voluntary.             Therefore, it determined the Referee


       4
         The farm agriculture certification at Penn State would have satisfied the certification he
needed for Oxford School District, as well as for Employer, while the certificate at Temple would
not have satisfied Oxford School District but would have Employer. (Referee Decision at 3.)
       5
         Claimant, pro se, filed his appeal to the Board, but retained counsel at some point during
the appeal.



                                                4
properly adjudicated the appeal using Section 402(b) and affirmed the Referee’s
Decision. This appeal followed.
       On appeal,6 Claimant argues the Board erred since the evidence shows his
resignation was because of the threat of imminent discharge. Consequently, Section
402(e) governing involuntary separations, not Section 402(b) governing voluntary
ones, should apply. Because there is no evidence of willful misconduct, Claimant
argues Employer did not meet its burden and he should be eligible for benefits.
According to Claimant, Employer telephoned him on July 28, 2017, and told him
that because Claimant resigned from Oxford School District, that resignation was
considered a resignation from Employer,7 too. He denies that Employer stated the
lack of certification was an issue and challenges the Board’s finding of fact to that
effect. Furthermore, Claimant believed he was going to be fired at an upcoming
meeting with Employer, a belief he states was confirmed by his union representative.
Claimant claims the Board erred in refusing to consider evidence of what the union
representative purportedly told Claimant on the basis it was hearsay because
Employer did not object to this testimony at the hearing. In short, Claimant argues
the burden was improperly placed on him to show he had a necessitous and
compelling reason for quitting instead of on Employer to show Claimant engaged in
willful misconduct. He asks the Court to reverse the Board’s Order.
       The Board responds that its finding that Claimant resigned because he did not
possess a teaching certification is supported by substantial evidence. Further,


       6
          Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether necessary findings of fact are supported by substantial
evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.
2014).
        7
          According to the testimony, Employer and Oxford School District are affiliated in some
way, but Claimant was paid separately by each. (R.R. at 60a.)


                                                5
because Claimant does not challenge any other findings, the Board asserts the
remaining findings are conclusive on appeal. The Board argues the findings show
Claimant voluntarily left his employment and, at the time, was not facing imminent
discharge. The Board points out Claimant admitted Employer never told him he
would be discharged; only the union representative did, and the union representative
is not Employer.        The Board also disputes that the statements of the union
representative were admissible, stating Employer objected a number of times to the
hearsay testimony. Finally, the Board notes Claimant does not argue he had a
necessitous and compelling reason for quitting. Therefore, it requests this Court
affirm its Order.
        A claimant bears the burden of showing his separation from his employer was
the result of discharge.8 Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of
Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). If a claimant resigns in lieu of an
imminent discharge, the claimant’s separation is considered an involuntary
discharge under Section 402(e). Id. However, if a claimant resigns when there is
“only a possibility of discharge,” a claimant is considered to have voluntarily quit
and Section 402(b) applies.          Id. Whether a claimant voluntarily quit or was
discharged “is a question of law to be made based upon the Board’s findings.” Id.
        Here, the Board found Claimant voluntarily resigned because he did not
complete or begin courses to obtain a certain teaching certification, (FOF ¶¶ 15-16),
a finding Claimant disputes as lacking substantial evidence to support it. Instead,
Claimant argues the evidence shows he resigned because Employer told him his
resignation from Oxford School District equated to a resignation from Employer, as
well.

        8
       If it is, the burden then falls on the employer to demonstrate willful misconduct. Navickas
v. Unemployment Comp. Review Bd., 787 A.2d 284, 288 (Pa. 2001).


                                                6
      Substantial evidence is “relevant evidence upon which a reasonable mind
could base a conclusion.” Henderson v. Unemployment Comp. Bd. of Review, 77
A.3d 699, 718 (Pa. Cmwlth. 2013). “In determining whether there is substantial
evidence to support the Board’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 that can logically and reasonably be drawn from the evidence.” Id.
Importantly, “[i]t 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.”         Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Finally, it bears emphasis that “the Board is the ultimate fact-finder in
unemployment compensation matters and is empowered to resolve all conflicts in
evidence, witness credibility, and weight accorded the evidence.” Id. On appeal,
the Board’s findings are conclusive “so long as the record taken as a whole contains
substantial evidence to support them.” Henderson, 77 A.3d at 718.
      A review of the record demonstrates substantial evidence to support the
Board’s finding. When Claimant initially applied for benefits, he completed a
supplemental information form for school employees wherein he stated he was
unemployed because he was “[u]nable to schedule certification and meet scheduling
needs.” (R.R. at 13a.) In his claimant questionnaire, when asked why he quit his
job, Claimant responded Employer and Oxford School District wanted him to get
certain certifications, which he could not do given his work and other commitments.
(Id. at 15a.) Claimant told the UC representative that when he explained this to both
employers, they told him he could either resign or be discharged. (Id.) Because
Claimant “want[ed] to look for other teaching jobs,” he “turned in a resignation letter



                                           7
to” Employer. (Id.) Moreover, in an email to Employer on August 16, 2017,
Claimant wrote that completing the certificate that Oxford School District required
“was untenable” after Delaware Valley University discontinued its program, which
left only Penn State as an option to obtain the more advanced certificate. (Id. at 21a.)
Because that program was only available in person at Penn State’s main campus,
and Claimant’s schedule and commitments would not permit him to complete it, he
resigned from Employer. (Id.) The above evidence is substantial evidence to
support the Board’s finding that Claimant resigned because he did not possess a
teaching certification. Although Claimant maintains Employer’s Principal told him
he effectively resigned from Employer when he tendered his resignation from
Oxford School District, a statement Principal acknowledges making, (id. at 63a),
that there is evidence in the record to support other findings is irrelevant, so long as
“there is evidence to support the findings actually made.” Ductmate Indus., 949
A.2d at 342. Furthermore, as Claimant does not specifically challenge any other
findings of the Board, they are conclusive on appeal.9 Egreczky v. Unemployment
Comp. Bd. of Review, 183 A.3d 1102, 1108 (Pa. Cmwlth. 2018).
       Based upon the Board’s findings, we discern no error in the Board’s
conclusion that Claimant’s resignation was voluntary because there was no evidence
of imminent discharge. The Board credited the testimony of Principal that Claimant
was not told he would be discharged if he did not resign. (Board Order.) Principal
testified he did not know what would have happened and denied telling Claimant he
would be fired. (R.R. at 65a.)
       The only evidence to the contrary is Claimant’s assertion that the union
representative told him he was going to be fired at the upcoming meeting with

       9
         Based upon our review of the record, even if Claimant had challenged the other factual
findings, they are supported by substantial evidence.


                                              8
Employer. However, the Board is correct that this statement was inadmissible
hearsay. To the extent Claimant argues the Board erred in excluding this statement,
we disagree. The statement is hearsay evidence that Employer repeatedly objected
to at the hearing. (Id. at 55a, 59a.) It is well-established that “[h]earsay evidence,
[p]roperly objected to, is not competent evidence to support a finding of the Board.”
Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976). Thus, the statement was inadmissible. However, even if it was admitted, it
does not establish that Employer advised Claimant that his discharge was imminent.
A statement by the union representative cannot be imputed to Employer. Here, the
evidence supports the Board’s finding that Employer never told Claimant he was
being discharged.
       This Court has examined resignations in lieu of discharge on a number of
occasions and the imminence of the discharge versus the mere possibility of
discharge has been a key consideration. In Fishel v. Unemployment Compensation
Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), a long-term substitute teacher
received an unsatisfactory performance evaluation. A representative of the school
district advised the teacher that he would recommend to the school board that the
teacher be dismissed. The teacher chose to resign. A referee originally awarded the
teacher benefits finding her discharge was imminent, but the Board reversed. The
Board concluded that the teacher was only facing the possibility of termination at
the time she resigned. This Court affirmed, stating whether the school board would
follow the recommendation to terminate the teacher “was far from certain.” Id. at
773.
       We reached a similar conclusion in Goffi v. Unemployment Compensation
Board of Review, 427 A.2d 1273 (Pa. Cmwlth. 1981). In Goffi, a college professor



                                          9
was advised by the dean that the dean was recommending the professor’s termination
because of unsatisfactory performance. Later that day, the professor tendered his
resignation. We affirmed the Board’s determination that the professor voluntarily
quit and did not show a necessitous and compelling reason for doing so. Id. at 1274.
Specifically, we stated “the claimant could have continued in his status as a professor
and could have awaited the action of the board of trustees, with whom the final
decision rested.” Id. at 1274-75. We held his resignation “was premature because
there had not been any definitive determination of his status by those with authority
to hire and fire.” Id. at 1275.
      In contrast, in Pennsylvania Liquor Control Board, we held the claimant’s
resignation amounted to a discharge.           There, the claimant was repeatedly
reprimanded for excessive absenteeism and had been warned that any future
violations would result in termination. After missing more work, a manager advised
the claimant he was recommending disciplinary action. In response, the claimant
resigned. A referee awarded the claimant benefits finding her discharge was
imminent. The Board affirmed, as did this Court. In so holding, we noted the
employer had a progressive discipline policy that provided for discharge at a certain
point, which the claimant had reached. Pa. Liquor Control Bd., 648 A.2d at 126.
We also noted that the claimant had been warned that any further violations would
result in discharge. Id. Although the manager stated he was recommending
discharge, the claimant testified that the employer always followed the
recommendations. Id. at 126-27. The employer also allegedly told the claimant that
if she wanted to resign it would be better than being terminated. Id. at 127. Based
upon these findings by the Board, we concluded that the claimant resigned to avoid
imminent discharge. Id.



                                          10
      The present action is more akin to Fishel and Goffi than Pennsylvania Liquor
Control Board in that there was no evidence of imminent discharge presented, but
even Fishel and Goffi have more compelling facts than present here. Unlike in Fishel
and Goffi, where a supervisor had recommended termination, it is undisputed here
that Principal never told Claimant he was recommending termination or that
Claimant was being terminated. At best, Principal asked for Claimant’s resignation
based upon his mistaken belief that resignation from Oxford School District equated
to a resignation from Employer. However, even Claimant did not consider this
statement a discharge because he testified that he told Principal he “had no intention
of resigning” and that the certification required by Oxford School District, which he
could not obtain through Penn State, was different than the certification required by
Employer, which was attainable online through Temple. (R.R. at 56a.)
      Because Claimant’s discharge from Employer was not imminent, his
resignation from Employer is considered voluntary. Under Section 402(b) of the
UC Law, “[w]here a claimant has voluntarily quit employment, in order to obtain
benefits, [he] must show that [he] left [his] employment for necessitous and
compelling reasons.” Collier Stone Co. v. Unemployment Comp. Bd. of Review, 876
A.2d 481, 484 (Pa. Cmwlth. 2005). The burden is on Claimant to show that he had
a necessitous and compelling reason for quitting. Latzy v. Unemployment Comp. Bd.
of Review, 487 A.2d 121, 123 (Pa. Cmwlth. 1985). To satisfy this burden, Claimant
must demonstrate “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 [his]
employment.” Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp.



                                         11
Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). “Whether a claimant has
necessitous and compelling reasons for terminating [his] employment is a question
of law subject to” review by this Court. Wise v. Unemployment Comp. Bd. of
Review, 111 A.3d 1256, 1261 (Pa. Cmwlth. 2015).
      The Referee, whose findings were adopted by the Board, found Claimant did
not act with ordinary common sense or make a good faith effort to preserve his
employment. (Referee Decision at 3; Board Order.) This is based upon findings
that Claimant took no steps to enroll in the Temple program that would have satisfied
the certification needed for Employer. Claimant testified he was aware that he could
obtain the certification needed for Employer online through Temple in the evenings
or on weekends. (R.R. at 56a-57a, 69a.) Principal testified all Claimant needed to
do was enroll in the program at Temple, but Claimant wanted to enroll in the
program at Penn State because that certification also satisfied a requirement for
Oxford School District. (Id. at 63a, 65a.) Claimant admitted he did not attempt to
enroll at Temple in the program that would have satisfied Employer’s certification
requirements because the Penn State program would have satisfied both Employer’s
and Oxford School District’s requirements. (Id. at 67a, 69a.) Had he pursued the
Temple program, Claimant testified he could only have taught at one of the schools,
Employer. (Id. at 67a.) He further admitted that after discovering Penn State was
not a viable option in late June, he did not take any steps to enroll in the Temple
program. (Id. at 68a, 70a.) He did not do so, even though it was a condition of
employment that he “believed that [he] could simply fulfill . . . by enrolling in
Temple on[]line. It would be very easy.” (Id. at 69a.) We agree that this does not
demonstrate Claimant acted with ordinary common sense or “made a reasonable
effort to preserve [his] employment.” Brunswick Hotel, 906 A.2d at 660.



                                         12
       We are cognizant of Claimant’s concern that a discharge would have been
viewed more negatively than a resignation. However, we have previously held that
the “desire to keep an ‘unsatisfactory’ evaluation from becoming part of the
individual personnel file is not a necessitous and compelling reason.” Gackenbach
v. Unemployment Comp. Bd. of Review, 414 A.2d 770, 771 (Pa. Cmwlth. 1980).
       Based upon the findings made by the Board, which are supported by
substantial evidence, we affirm the Board’s conclusion that Claimant voluntarily
resigned from his employment without a necessitous and compelling reason.10




                                           _____________________________________
                                           RENÉE COHN JUBELIRER, Judge




       10
          Because Claimant voluntarily resigned from his employment, Employer is not required
to show Claimant engaged in willful misconduct. Therefore, we do not need to address Claimant’s
final argument.


                                              13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth Pacanowski,                 :
                Petitioner          :
                                    :
                 v.                 :   No. 1255 C.D. 2018
                                    :
Unemployment Compensation Board     :
of Review,                          :
               Respondent           :
                                    :


                               ORDER


     NOW, May 2, 2019, the Order of Unemployment Compensation Board of
Review, dated August 17, 2018, is AFFIRMED.



                                  _____________________________________
                                  RENÉE COHN JUBELIRER, Judge
