           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lee S. Krause,                  :
               Petitioner       :
                                :
      v.                        : No. 1283 C.D. 2018
                                : SUBMITTED: September 9, 2019
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                           FILED: October 3, 2019

       Lee S. Krause (Claimant) petitions for review of the August 23, 2018 Order
of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to deny Claimant unemployment compensation (UC) benefits.
The Board concluded that Claimant was ineligible for UC benefits because he
voluntarily quit his employment without cause of a necessitous and compelling
nature under Section 402(b) of the Unemployment Compensation Law (Law). 1 We
affirm the Board’s Order.
                                       Background
       Claimant worked for Wallenpaupack Property Owners Association
(Employer) as a full-time water and sewer technician from June 12, 2017 through

       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 that an employee shall be ineligible for UC benefits
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).
January 19, 2018. Bd.’s Finding of Fact (F.F.) No. 1. Claimant’s primary job duties
were to maintain Employer’s water and sewer systems and to test Employer’s wells
for chlorine leaks. Id. No. 3.
      On June 12, 2017, Employer hired Claimant at a pay rate of $14.50 per hour.
Id. No. 4. At the time of his hiring, Claimant informed Employer that eventually he
wanted to become a licensed water and sewer treatment operator, which would result
in a pay increase. Id. No. 5.
      On September 12, 2017, Employer’s General Manager, John Carney,
conducted a 90-day review of Claimant’s performance and increased Claimant’s pay
to $15.00 per hour. Id. No. 6. During the 90-day review meeting, Claimant informed
Mr. Carney that, should Claimant complete the necessary educational requirements
and become a licensed treatment operator, he expected to receive a pay increase to
$25.00 per hour. Id. No. 7. Mr. Carney told Claimant that he did not believe
Employer would be able to meet Claimant’s salary requirement should he become a
licensed treatment operator. Id. No. 8. After this meeting, Claimant continued to
work for Employer for four more months. Id. No. 9.
      In January 2018, Claimant provided verbal notice of his resignation to
Employer’s Director of Water and Sewer Services, Brian Schan, stating that he
would resign from his position in March 2018. Id. No. 10; Notes of Testimony
(N.T.), 6/4/18, at 11, 20, 24. However, Claimant’s resignation became effective on
January 19, 2018 because he wanted to pursue a business opportunity in self-
employment. Bd.’s F.F. No. 11. Specifically, Claimant was in negotiations to
purchase a pizza restaurant and its associated real estate. N.T., 6/4/18, at 11-13.
      After Claimant resigned, his potential business opportunity in self-
employment did not materialize. Bd.’s F.F. No. 12. Although Claimant testified
that he had received “a standing offer” from New Era Security, N.T., 6/4/18, at 13,


                                          2
Claimant did not have a definite offer of employment from another employer at the
time of his resignation, Bd.’s F.F. No. 13.
      Employer had continuing work available for Claimant had he not resigned.
Bd.’s F.F. No. 14. Claimant has not worked in covered employment or self-
employment since his separation from Employer on January 19, 2018. Id. No. 15.
      Claimant filed a claim for UC benefits, which the local UC Service Center
denied. The Service Center found that because Claimant did not have a definite job
offer from another employer before voluntarily quitting his employment, he did not
establish a necessitous and compelling reason to quit under Section 402(b) of the
Law. Record (R.) Item No. 5.
      Claimant timely appealed to the Referee. The Referee held an evidentiary
hearing on June 4, 2018, at which Claimant, Mr. Carney, and Mr. Schan testified.
Following the hearing, the Referee affirmed the Service Center’s decision, finding:

      [C]laimant testified that he resigned his employment due to [E]mployer
      migrating [sic] to [C]laimant’s salary expectations [if he were to
      become] a licensed sewer/water treatment operator. Although [Mr.
      Carney] informed [C]laimant [in] September 2017 that [E]mployer
      would not be able to meet [his] salary expectations, [C]laimant
      continued to work for [E]mployer.

      Subsequently, [C]laimant alleged that he entered negotiations to
      purchase a pizza business and numerous properties prior to [his]
      resignation and [he] decided to resign in order to pursue possible self-
      employment. Furthermore, [C]laimant alleged that he had a standing
      offer from another employer, New [Era] Security, in Waymart, PA as a
      full-time technician at a rate of pay of $18.00 per hour. Due to
      [C]laimant’s decision to pursue possible self-employment, [he]
      resigned his employment. After [C]laimant’s resignation, [his]
      potential self-employment did not materialize and [he] did not
      commence employment with New [Era] Security.




                                          3
       . . . Although the [R]eferee finds [C]laimant’s efforts to pursue self-
       employment [to be] laudable, nevertheless, [C]laimant’s pursuit of self-
       employment [was] a personal choice. Furthermore, the [R]eferee does
       not find [C]laimant provided credible testimony that he had a definite
       offer of covered employment at the time he submitted his resignation
       to [E]mployer.

Ref.’s Order, 6/8/18, at 3. Therefore, the Referee concluded that Claimant did not
establish a necessitous and compelling reason to voluntarily quit his employment.
Id.
       Claimant timely appealed to the Board, asserting that he “was offered pay
raises commensurate with his employment performance and tuition for the on-going
waste water treatment plant operator certification necessary to manage [Employer’s]
treatment plant” and that he “left [Employer] due to [Employer’s] breach of its
original job offer.” R. Item No. 11.
       The Board adopted the Referee’s Findings of Fact and Conclusions of Law
and concluded as follows:

       The Board finds the testimony of [Mr. Carney] credible that he told
       [C]laimant that he did not believe [C]laimant would be given a raise to
       $25 per hour by [E]mployer. Furthermore, [C]laimant’s other
       employment opportunities were not firm offers. As such, [C]laimant
       has failed to establish a necessitous and compelling reason to
       voluntarily quit his job.

Bd.’s Order, 8/23/18, at 1. Therefore, the Board affirmed the Referee’s decision.
Claimant now petitions this Court for review. 2




       2
          Our scope of review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.

                                                4
                                     Analysis
      A claimant who voluntarily terminates his employment has the burden to
establish a necessitous and compelling reason for doing so. Petrill v. Unemployment
Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must
prove that: (1) circumstances existed that 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. Bd. of Review, 906 A.2d
657, 660 (Pa. Cmwlth. 2006).
      A claimant’s initial acceptance of a job presumes its suitability. Spinelli v.
Unemployment Comp. Bd. of Review, 437 A.2d 1320, 1321 (Pa. Cmwlth. 1981).
Once a claimant accepts a job as suitable and then subsequently quits, the claimant
must show a substantial, unilateral change in the employment agreement, the
existence of conditions of which he was unaware when he accepted the position, or
that he was deceived as to the conditions of his employment in order to establish
necessitous and compelling cause to quit. Id. at 1321-22.
      In his Petition for Review, Claimant contends that he was compelled to quit
his employment “due to [Employer’s] breach of the job-related performance raises
and promotions promised” to Claimant when he was hired. Pet. for Review, 9/18/18,
at 2. Specifically, he claims that Employer promised him that he would “escalate up
in rapid fashion” if he worked toward obtaining his operator’s license but then
“pulled the rug out from underneath [Claimant]” by “reneg[ing] its original
proposal.” Claimant’s Br. at 10-11. In essence, Claimant asserts that Employer
deceived him with regard to the terms and conditions of his employment and, thus,
he had a necessitous and compelling reason to voluntarily quit. We disagree.


                                         5
      At the hearing, Claimant testified that one month before he was hired, he and
Mr. Carney had discussed wages. N.T., 6/4/18, at 7. Claimant testified that when
Mr. Carney asked him what he was seeking in terms of pay, Claimant “did not give
him a definite answer.” Id. According to Claimant, Mr. Carney told him at that time
that if he were seeking wages in excess of $20.00 per hour, “it wouldn’t be worth
[Claimant’s] time or [Employer’s] time,” and they subsequently discussed wages in
the $16- to $18-per-hour range. Id. at 8. When Mr. Carney later offered Claimant
the technician position at $14.50 per hour, Claimant said he could not work for
$14.50 per hour and needed time to consider the offer. Id. Claimant testified that
Mr. Carney told Claimant that he “would only have to do the $14.50 for 90 days”
and that “if [Claimant] work[ed] on getting [his] certifications and [his] schooling
that [he] can escalate up to where [he] want[ed] to be rapidly.” Id.
      Mr. Carney testified that he “offered [Claimant] the job of working [as a]
water and sewer [technician] and eventually becoming a licensed operator.” Id. at
17. With regard to salary, Mr. Carney testified that he and Claimant had discussed
a pay rate of $14.50 per hour, with an increase to $15.00 per hour after a 90-day
probationary period. Id. at 18. He testified that Claimant said he would “come in
for $15.00 an hour, and work toward[] a goal before any increase.” Id. Mr. Carney
replied that his original offer stood and again offered him the position at $14.50 per
hour, with an increase to $15.00 per hour after 90 days. Id. at 18, 21. After Claimant
accepted the position, Mr. Carney spoke with Mr. Schan, Employer’s Director of
Water and Sewer Services, about setting up a class schedule for Claimant. Id. at 18.
      Mr. Carney further testified that on September 12, 2017, he met with Claimant
to conduct his 90-day review, during which he offered Claimant a pay increase to
$15.00 per hour. Id. Claimant told Mr. Carney that he wanted to move forward with
obtaining his license and that “within two years [he was] looking to be [earning] in


                                          6
the mid-20s, such as . . . $25 an hour.” Id. Mr. Carney informed Claimant that
Employer would not be able to meet that demand. Id. at 18-20; Bd.’s F.F. Nos. 8, 9.
Mr. Carney explained Employer’s reason as follows:

         In two years, mid-20s, I knew that wasn’t going to work. [I]n sewer
         and water [w]e have an operator -- two operators there. They’ve been
         -- in fact, they were there ten years and five years, making less than $18
         [per hour]. And both of these guys have much more experience than
         [Claimant] did at that time and probably in the next two years would
         have as much or more experience. . . . I have an immediate supervisor
         [earning] less than $25 [per] hour. [Claimant’s] position fell more in
         line with our compliance officer, who’s just above $18 [per] hour. A
         machine operator [earns] $16 [per] hour. A lieutenant sergeant in our
         security force, . . . [earns] from $17 to $18.50 [per] hour. I fe[lt] in the
         two years that would be my goal [--] to get [Claimant] up and around
         that $18 [per] hour . . . .

N.T., 6/4/18, at 19.
         Based on the evidence presented at the hearing, the Board expressly rejected
Claimant’s assertion that he had a necessitous and compelling reason to quit because
“[E]mployer failed to offer him promised wage increases.” Bd.’s Order, 8/23/18, at
1. Claimant himself testified that, during their initial wage discussions, Mr. Carney
told Claimant that Employer could not pay him more than $20 per hour, even if he
were to obtain his operator’s license. N.T., 6/4/18, at 8. Mr. Carney also testified
that he never promised Claimant “mid-20s” and reiterated that Employer could not
meet that demand during the 90-day review meeting. Id. at 18, 20; Bd.’s F.F. Nos.
8, 9.3
         Moreover, although Claimant was purportedly dissatisfied with the pay rate
offered at the September 12, 2017 meeting, see N.T., 6/4/18, at 14, the Board found


         Although Mr. Carney could not recall his exact response to Claimant’s $25-per-hour wage
         3

demand, Mr. Carney stated, “I know there was discussion of how I felt about the mid-twenties.”
N.T., 6/4/18, at 20.

                                               7
that he continued to work for Employer for four more months before resigning.
Bd.’s F.F. Nos. 8, 9, 11. Our Court has explained:

      [O]nce an employee [has] accepted new terms of employment, it is
      presumed that the employment is suitable; therefore, the employee may
      not later assert that dissatisfaction with those terms constitutes a
      necessitous and compelling reason [for voluntarily quitting], unless
      there has been a change in the employment conditions or the employee
      was deceived by the employer or the employee was reasonably unaware
      of the unsuitable conditions when he accepted the position.

Speck v. Unemployment Comp. Bd. of Review, 680 A.2d 27, 30 (Pa. Cmwlth. 1996)
(emphasis added); see also Monaco v. Unemployment Comp. Bd. of Review, 565
A.2d 127, 130 (Pa. 1989) (“Mere dissatisfaction with wages or working conditions
is not sufficient to establish necessary and compelling reasons to quit [one’s]
employment.”). We agree with the Board that Claimant’s alleged dissatisfaction
with his pay was not a necessitous and compelling reason for voluntarily quitting.
      Finally, the Board determined that Claimant voluntarily quit on January 19,
2018, rather than in March 2018 as he had originally discussed with Employer, in
order to pursue self-employment. Bd.’s F.F. Nos. 10, 11. During his initial interview
with the Department of Labor and Industry (Department), the Department
representative asked Claimant, “What happened in January [2018] that caused you
to decide to quit?” to which Claimant responded:

      I had been looking into possibly opening a pizza place in Carbondale
      and also had a friend who worked for Leeward Construction who was
      trying to get me . . . work. Neither opportunity worked out but I decided
      I needed to take more time to look into other work. I didn’t have
      anything definite to go to. I just needed to dedicate more time to
      looking elsewhere.

R. Item No. 4. In addition, Claimant testified that, a few months before resigning,
he had entered into negotiations to purchase a pizza business and numerous

                                         8
properties and ultimately decided to quit in January 2018 “[t]o enter into self-
employment.”        N.T., 6/4/18, at 11. As the Board found, however, that self-
employment opportunity did not materialize. Bd.’s F.F. No. 12.
       We conclude that the record contains substantial evidence to support the
Board’s finding that Claimant voluntarily quit his position with Employer to pursue
a self-employment opportunity, which is not a necessitous and compelling reason
under Section 402(b) of the Law. See Solar Innovations, Inc. v. Unemployment
Comp. Bd. of Review, 38 A.3d 1051, 1057 (Pa. Cmwlth. 2012) (recognizing that
while a claimant may have personal, economic, or career reasons for deciding to quit
his or her employment, that does not constitute a necessitous and compelling cause);
O’Connor v. Unemployment Comp. Bd. of Review, 413 A.2d 458, 460 (Pa. Cmwlth.
1980) (“The mere possibility of obtaining another job, without a firm offer of
employment, is insufficient to constitute necessitous and compelling cause for
terminat[ing one’s employment] . . . .”).4
                                           Conclusion
       Accordingly, we affirm the Board’s Order.




                                              __________________________________
                                              ELLEN CEISLER, Judge

       4
         Even though Claimant did not cite his alleged “standing offer” of employment from New
Era Security as the reason for his voluntary quit, we agree with the Board that such offer also did
not constitute necessitous and compelling cause. In determining whether a claimant had a
necessitous and compelling reason to quit due to another job opportunity that does not ultimately
come to fruition, this Court has held that “[t]he [claimant’s] receipt and acceptance of a firm offer
of employment . . . constitute[s] compelling cause for termination of employment.” Top Oil Co.
v. Unemployment Comp. Bd. of Review, 488 A.2d 1209, 1211 (Pa. Cmwlth. 1985). “The offer of
employment, however, must be definite.” Solar Innovations, 38 A.3d at 1056. Here, the Board
determined that Claimant did not have a firm offer of employment from New Era Security or any
other employer at the time of his resignation. Bd.’s F.F. No. 13.

                                                 9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lee S. Krause,                  :
               Petitioner       :
                                :
      v.                        : No. 1283 C.D. 2018
                                :
Unemployment Compensation Board :
of Review,                      :
               Respondent       :


                                ORDER


      AND NOW, this 3rd day of October, 2019, the Order of the Unemployment
Compensation Board of Review, dated August 23, 2018, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
