           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon Morgan,                                :
                             Petitioner        :
                                               :
              v.                               :    Nos. 691 & 692 C.D. 2019
                                               :    Submitted: February 7, 2020
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: May 29, 2020


       Petitioner Brandon Morgan (Claimant), pro se, petitions for review of two
orders of the Unemployment Compensation Board of Review (Board). The Board
affirmed as modified an Unemployment Compensation Referee’s (Referee)
decisions, in which the Referee concluded that Claimant was ineligible for
unemployment compensation benefits under Sections 401(c) and 402(b) of the
Unemployment Compensation Law (Law)1. The Board also affirmed as modified


       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. §§ 801(c), 802(a). Section 401(c) of the Law provides that, in order to be eligible for
unemployment compensation benefits, a claimant must make “a valid application for benefits . . .
in the proper manner . . . prescribed by the [Pennsylvania Department of Labor and Industry
(Department)].” Section 402(b) of the Law provides, in part, that a claimant “shall be ineligible
the Referee’s determinations that Claimant received overpayments pursuant to
Section 804(a)-(b) of the Law2 in the amounts of $516.00 and $4,644.00,
respectively. We now affirm.
       Claimant filed a claim for unemployment compensation benefits effective
August 26, 2018, which unemployment compensation authorities (UC Authorities)
granted.    (Reproduced Record (R.R.) at 2a-3a.)               Thereafter, UC Authorities
continued to receive and pay claims filed by Claimant.                            (Id.)     On
September 11, 2018, Claimant received a written conditional offer of employment
with Valley Youth House, Inc. (Employer).                 (Id. at 33a, 101a-02a.)         From
September 14-19, 2018, Claimant attended various staff training events with
Employer. (Id.) On September 19 or 20, 2018, Claimant voluntarily terminated his
employment with Employer. (Id. at 96a.) Claimant applied for unemployment
compensation benefits for the week ending September 22, 2018, and received
benefits in the amount of $516.00 for that week. (Id. at 3a.) Claimant continued to
apply for and receive unemployment compensation benefits through the week
ending December 1, 2018. (Id.)
       On December 17 and 18, 2018, the Harrisburg UC Overflow Center (UC
Service Center) issued Claimant a total of four notices of determinations. (Id.
at 52a-60a.) The first two determinations pertained to the time period from the claim
week ending September 22, 2018, to the claim week ending December 1, 2018. In


for compensation for any week” in which the claimant’s “unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.”
       2
         43 P.S. § 874(a)-(b). Section 804(a) of the Law provides that a claimant who, by reason
of his fault, receives unemployment compensation benefits to which the claimant is not entitled
must repay the amount received with interest. Section 804(b) of the Law provides that a claimant
who receives such an overpayment not by his fault need not repay the overpayment, but is liable
to have the overpayment deducted from future benefits to which the claimant is entitled.

                                               2
those determinations, the UC Service Center: (1) denied benefits to Claimant
because he failed to show a necessitous and compelling reason for voluntarily
quitting his employment; and (2) established a fault overpayment in the amount of
$4,644.00 (collectively, the Quit Determinations). (Id. at 52a-55a.) In the final two
determinations, which pertained only to the week ending September 22, 2018, the
UC Service Center (1) denied benefits to Claimant because he failed to report his
work for Employer during the week ending September 22, 2018; and (2) established
a fault overpayment in the amount of $516.00 (collectively, the Report
Determinations). (Id. at 57a-59a.)
       On December 31, 2018, Claimant filed two separate appeals—one for the Quit
Determinations and one for the Report Determinations. (Id. at 62a-71a.) A Referee
consolidated the appeals and conducted a hearing on January 25, 2019. (Id. at 84a.)
During the hearing before the Referee, Claimant testified that, after interviewing
with Employer for a position as coordinator of one of its residential childcare
facilities, he filled out hiring paperwork and attended several sessions of training
with Employer. (Id. at 89a-90a.) Claimant later asserted that he did not think he
would be paid for the training. (Id. at 91a.) Claimant further testified that, while at
his assigned facility for training, he witnessed events or circumstances that made
him feel “insecure” about his own and the children’s safety. (Id. at 90a.) Claimant
later clarified that he witnessed children discussing suicide in the facility to which
he was assigned. (Id. at 93a.) He explained that, because he believed he was
required by law to report what he saw, he contacted ChildLine.3 (Id. at 90a, 94a.)
He also claimed that he discussed his concerns with his friends who, he conceded,

       3
         ChildLine is an organizational unit of the Pennsylvania Department of Human Services
that operates a statewide toll-free system for receiving and maintaining reports of suspected child
abuse, along with making referrals for investigation. 55 Pa. Code § 3490.4.

                                                3
are not employees of Employer but serve as landlords for the residential facility to
which Claimant was assigned. (Id. at 90a, 95a.) Claimant asserted that he later
heard that his friends had spoken with Employer’s CEO about his concerns. (Id.
at 95a.)
       Claimant confirmed that he resigned his employment with Employer on
September 19 or 20, 2018, after he became concerned about safety, made his report
to ChildLine, and discussed his concerns with his friends. (Id. at 96a.) When
Employer’s witness at the hearing asked Claimant why he did not allow more time
for Employer to resolve his alleged concerns, Claimant offered no explanation. He
merely stated that he “didn’t want to take any further step with [Employer].” (Id.
at 97a.) Claimant testified that in early November 2018, he received a check from
Employer for $738.46. (Id. at 91a-92a.) He claimed that, sometime after receiving
the check, he contacted UC Authorities to report that he had received income.4 (Id.)
       Employer’s witness testified that Employer provided a written offer of
employment to Claimant on September 11, 2018, and entered him into Employer’s
payroll system on September 14, 2018. (Id. at 101a-02a.) She explained that
Claimant’s paycheck was delayed because Claimant never signed in on Employer’s
payroll timekeeping system. (Id. at 101a.) Employer’s witness also testified that no
employees of Employer learned of Claimant’s safety concerns until after receiving
notice of Claimant’s unemployment compensation claims.                       (Id. at 100a.)
Employer’s witness, who is vice president of human resources for Employer,



       4
         In his testimony before the Referee, Claimant did not specify the date(s) on which he
allegedly contacted UC Authorities about his pay.            In a questionnaire completed
December 10, 2018, and entered into the record at the hearing, Claimant stated that the alleged
contact occurred on November 28 and December 1, 2018. (R.R. at 34a.)

                                              4
emphasized that Employer would have begun an investigation immediately if any of
its employees had become aware of Claimant’s concerns. (Id. at 100a-01a.)
       Following the hearing, the Referee issued two decisions. The first decision
affirmed the Quit Determinations but modified the amount of the related fault
overpayment, increasing it from $4,644.00 to $5,160.00.5 (Id. at 109a.) The Referee
determined that Claimant voluntarily quit his employment, failed to establish a
necessitous and compelling reason for doing so, and culpably failed to report his
employment and subsequent termination thereof, resulting in a fault overpayment.
In the second decision, the Referee affirmed the Report Determinations without
modification. (Id. at 113a.) In doing so, the Referee determined that Claimant
intentionally avoided reporting his employment with Employer on his benefit
application, thus failing to make a proper application under Section 401(c) of the
Law and resulting in a fault overpayment.
       Claimant appealed to the Board, which affirmed the Referee’s decisions with
modification. (Id. at 131a-37a.) In its first decision and order, pertaining to the Quit
Determinations, the Board reduced the overpayment amount back to $4,644.00 and
determined that the overpayment was nonfault only. (Id. at 132a-33a.) In so doing,
the Board made the following relevant findings of fact:
               1.   Effective August 26, 2018, [Claimant] applied for
                    unemployment compensation benefits.
               2.   [Claimant’s] friend was renting property                    to
                    [Employer] . . . and suggested [C]laimant apply.




       5
        It appears that the Referee increased the relevant fault overpayment by $516.00 to account
for the fact that “the UC Service Center did not include [the] claim week ending
September 29, 2018 in the [Quit Determination o]verpayment. . . .” (R.R. at 108a.) It is not clear
why the UC Service Center did not make that week subject to the Quit Determinations.

                                                5
             3.      [Claimant] applied and, on September 11, 2018, was
                     given a conditional offer letter [from Employer] to be
                     a full-time residential coordinator.
             4.      [Claimant] was placed on [Employer’s] payroll
                     beginning September 14, 2018, when he attended a
                     staff retreat picnic, for which he earned $184.56.
             5.      On September 17 and 18, 2018, [Claimant] attended
                     off-site orientation.
             6.      On September 19, 2018, [Claimant] participated in
                     on-site training.
             7.      On September 19, 2018, [Claimant] quit due to
                     allegedly witnessing neglect in the workplace.
             8.      [Claimant] notified his friend, but not [Employer], of
                     the alleged neglect.
             ....
             10. [Claimant] did not notify the Department . . . of his
                 work for or resignation from [Employer] because he
                 believed it was just training, not employment.
             11. For the weeks ending October 6 through
                 December 1, 2018, [Claimant] filed claims for and
                 received $4[,]644.00 in benefits because he did not
                 advise the Department of his work for or resignation
                 from [Employer].
(Id. at 131a-32a.)
      In concluding that Claimant was ineligible for unemployment compensation
benefits under Section 402(b) of the Law and that he had received a nonfault
overpayment, the Board reasoned, in part:
                    [Claimant] quit due to allegedly witnessing neglect
             in the workplace. [Claimant] provided no specificity
             about the . . . neglect he allegedly witnessed for the Board
             to determine whether it was a necessitous and compelling
             reason to quit. Further, [Claimant] did not advise
             [Employer] of his concerns, enabling it an opportunity to
             rectify them, before quitting. Therefore, benefits must be
             denied under Section 402(b) of the Law.
                      ....

                                            6
                   . . . [Claimant’s] mistaken belief that he was not
             employed does not establish that he was at fault for
             receiving these benefits, so they may be recouped under
             Section 804(b) of the Law.
(Id. at 132a-33a.)
      In its second decision and order, pertaining solely to the Report
Determinations, the Board affirmed the Referee’s decision. In so doing, the Board
made the following relevant findings of fact:
             2.      The unemployment compensation handbook advised
                     [Claimant], “If you return to work full time with your
                     former employer or a new employer, you are no
                     longer eligible for benefits” and “IMPORTANT:
                     Notify the UC service center immediately if you
                     begin working part time at a new employer.”
             ....
             4.      [Claimant] . . . , on September 11, 2018, was given a
                     conditional offer letter to be a full-time residential
                     coordinator [for Employer].
             5.      [Claimant] did not promptly advise the
                     Department . . . of his new full-time employment.
             6.      For the week ending September 22, 2018, [Claimant]
                     worked for [Employer] and earned $553.68.
             7.      For the week ending September 22, 2018, [Claimant]
                     filed a claim for benefits and advised the Department
                     that he did not work.
             8.      For the week ending September 22, 2018, [Claimant]
                     received $516.00 in benefits because he advised the
                     Department he did not work.
             9.      Because [Claimant] did not stay long enough to be
                     entered into the timekeeping system, his pay [from
                     Employer] was not automatically generated.
             10. [Claimant’s] pay[]check was not generated until
                 October 23, 2018.
             11. In the first week of November 2018, [Claimant]
                 received a $738.46 pay[]check from [Employer].
             12. [Claimant] did not notify the Department of this pay.
                                            7
             13. On November 19, 2018, the Department became
                 aware of [Claimant’s] work for [Employer] through
                 the National Directory of New Hires.
(Id. at 135a-36a.)
      In concluding that Claimant was ineligible for unemployment compensation
benefits under Section 401(c) of the Law and had received a fault overpayment, the
Board reasoned, in part:
                    For the week ending September 22, 2018,
             [Claimant] worked in what should have been a full-time
             job, but did not advise the Department. [Claimant] alleged
             he did not realize he was an employee because [the
             activity] was merely training and was not paid.
             [E]mployer credibly established that [Claimant] was
             presented with a conditional offer letter, which [Claimant]
             accepted, and [Claimant] was paid for the work
             performed.
                   Although [Claimant] argues that he advised the
             Department of his work and of his belated paycheck, the
             Board discredits these assertions. Further, [Claimant]
             wrote a statement to the Department that he “spoke with
             two different UC representatives on . . . two separate
             occasions to clarify this situation [regarding the late pay
             on] November 28th and December 1st.” Considering that
             [Claimant] testified he received this paycheck in the first
             week of November 2018 . . . , this disclosure, even if
             believed, would be too late to salvage [Claimant’s] case.
                    The Board concludes that [Claimant] intentionally
             misrepresented his employment status when filing a claim
             for benefits, so he must be ineligible under Section 401(c)
             of the Law, regardless of whether he was “unemployed”
             under Section 4(u) of the Law[, 43 P.S. § 753(u)].
             ....
                   . . . Because [Claimant] intentionally
             misrepresented his employment status when filing a claim
             for benefits, he is at fault for receiving these benefits and
             they must be repaid under Section 804(a) of the Law.

(Id. at 136a-37a.)

                                          8
       On appeal,6 Claimant essentially argues that the Board committed an error of
law in concluding that Claimant did not prove a necessitous and compelling reason
for voluntarily terminating his employment. Claimant also argues that the Board
erred in concluding that he failed to comply with Section 401(c) of the Law. Finally,
Claimant argues that the Board erred because it failed to make sufficiently specific
factual findings to assess a fault overpayment.
       Whether a claimant had cause of a necessitous and compelling nature for
leaving work is a question of law subject to this Court’s review. Brunswick Hotel &
Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 661
(Pa. Cmwlth. 2006). A claimant who voluntarily terminates his employment “bears
the burden of proving that necessitous and compelling reasons motivated that
decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129
(Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish cause of
a necessitous and compelling nature, a claimant must establish: (1) circumstances
existed that produced real and substantial pressure to terminate employment, (2) like
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. Procito v. Unemployment Comp. Bd. of Review,
945 A.2d 261, 264 (Pa. Cmwlth. 2008) (en banc).
       Claimant essentially argues that it was necessary for him to quit his job out of
fear for the safety of the children served by Employer and “concern” for his own
professional reputation if he continued to work for Employer under circumstances

       6
         This Court’s standard of 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. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.


                                               9
involving alleged child neglect. (Petitioner’s Br. at 19.) The Board and Employer7
argue that Claimant failed to meet his burden, because he did not sufficiently
describe any reasons for his concerns or fears before the Referee but instead made
nonspecific, conclusory statements that conditions were unacceptable. The Board
also emphasizes Claimant’s admission that he spoke only to his friends—not to
Employer—about his concerns, and that he did not discuss his concerns with anyone
until the day before he voluntarily quit.
      We agree with the Board and Employer that Claimant failed to establish a
necessitous and compelling reason to quit. Although safety concerns may give rise
to such reasons, the claimant must “demonstrate[] by objective evidence” that the
workplace is actually unsafe, and “‘fears’ alone do not constitute a compelling
reason to resign.”       Green Tree Sch. v. Unemployment Comp. Bd. of Review,
982 A.2d 573, 578 (Pa. Cmwlth. 2009).               Here, Claimant offered no objective
evidence that the conditions of his employment were unsafe, either for himself or
for the children served by Employer. Accordingly, Claimant failed to demonstrate
circumstances that exerted real and substantial pressure on him to terminate his
employment.
      Even if Claimant had made that showing, the Board found that Claimant did
not notify Employer of his concerns. As Claimant has failed to challenge any of the
Board’s findings, we accept the Board’s findings and conclude that Claimant failed
to take reasonable steps to preserve his employment. The Board did not err,




      7
          Employer has intervened in this proceeding on appeal.


                                               10
therefore, in concluding that Claimant did not have a necessitous and compelling
reason for voluntarily quitting his position with Employer.8
       We next address Claimant’s argument that the Board erred in concluding that
he failed to comply with Section 401(c) of the Law. Under Section 401(c) of the
Law, a claimant is eligible for unemployment compensation benefits only if his
application for benefits is both “valid” and made “in the proper manner.” We have
long held that to satisfy Section 401(c), “[a] claimant seeking unemployment
compensation benefits is required to divulge to [UC Authorities] all pertinent
information regarding the claimant’s employment status.” Amspacher v.
Unemployment Comp. Bd. of Review, 479 A.2d 688, 690 (Pa. Cmwlth. 1984).
Although a claimant’s failure to disclose pertinent information “does not technically
result in an invalid application, . . . it does constitute a failure to submit the claim in
the proper manner [as required by Section 401(c)].” Smith v. Unemployment Comp.
Bd. of Review, 500 A.2d 186, 188-89 (Pa. Cmwlth. 1985); see Myers v.
Unemployment Comp. Bd. of Review, 515 A.2d 1013, 1014 (Pa. Cmwlth. 1986).
       Claimant argues that he did not withhold employment information on his
application for the week ending September 22, 2018, because at the time he applied
he mistakenly believed he would not be paid for the training he attended during that
week. He also emphasizes that he did not actually receive any payment until many
weeks after he applied for benefits. Regardless of these assertions, the Board

       8
         In his brief, Claimant suggests that he informed a person whom he thought to be in charge.
(Petitioner’s Br. at 19-20, 22.) Even if we were to interpret this statement as challenging whether
substantial evidence exists to support the finding that Claimant did not notify Employer of his
concerns, our result would remain the same. A review of the record reveals that Claimant, during
the hearing, admitted that he did not speak directly to any employee of Employer about his
concerns and Employer’s witness testified that Employer was never made aware of Claimant’s
concerns. (R.R. at 94a-96a, 100a.) Thus, substantial evidence exists to support the Board’s finding
that Claimant did not relay his concerns to Employer before quitting.

                                                11
concluded that Claimant intentionally misrepresented his employment status on his
application. The Board’s findings—which Claimant has not challenged—support
that conclusion. Claimant received a written offer of employment before he applied
for benefits, and the record contains no evidence that Claimant ever informed UC
Authorities of his pay, even after he received it. The Board discredited Claimant’s
assertions to the contrary.
      Furthermore, despite Claimant’s arguments, our decision in Myers is
distinguishable. There, we held that a claimant was eligible for benefits even though
she did not receive and report her earnings until after she applied for benefits. Myers,
515 A.2d at 1015. Critically, however, the Board in Myers found that (1) the
employer had expressly told the claimant that she would not be paid for her work,
and (2) when the claimant received pay anyway, she reported it to UC Authorities
within 13 days of receipt. Id. at 1014. Based on those findings by the Board, we
concluded that the claimant had no reason to believe she was employed at the time
of her application because “employment” is necessarily remunerative as defined in
Section 4(u) of the Act. Id. at 1015. Here, as we have explained, the Board made
the opposite findings—that Employer informed Claimant of his employment
relationship in writing, and that Claimant never informed UC Authorities of his pay.
The Board permissibly relied on those findings to conclude that Claimant
intentionally misrepresented his employment status on his application. The Board,
thus, did not err in concluding that Claimant’s application for benefits did not
comply with Section 401(c) of the Law.
      Finally, we address Claimant’s argument that the Board did not make a
specific factual finding regarding his fault or state of mind in order to support its
determination of a fault overpayment. To the extent this argument differs from those


                                          12
already addressed above, Claimant appears to argue that the Board erred in not
including such a finding in its list of findings of fact. Claimant is correct that “[t]o
find ‘fault’ under Section 804(a) [of the Law], there must be some finding by the . . .
Board concerning [Claimant’s] state of mind.” Amspacher, 479 A.2d at 691. We
have also held, however, that this standard is met where the Board finds that “the
claimant was aware of his duty to report all earnings and did not do so.” Smith,
500 A.2d at 189-90. Here, the Board made exactly those findings. Moreover, the
Board expressly concluded, based on those findings, that “[Claimant] intentionally
misrepresented his employment status” to UC Authorities. (R.R. at 137a.) The
Board’s assessment of a fault overpayment was, therefore, appropriate.
      Accordingly, we affirm the orders of the Board.




                                           P. KEVIN BROBSON, Judge




                                          13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon Morgan,                      :
                      Petitioner     :
                                     :
           v.                        :   Nos. 691 & 692 C.D. 2019
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER


     AND NOW, this 29th day of May, 2020, the orders of the Unemployment
Compensation Board of Review are hereby AFFIRMED.




                                     P. KEVIN BROBSON, Judge
