                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph R. Gumpher, III,                          :
                Petitioner                       :
                                                 :   No. 1735 C.D. 2016
               v.                                :
                                                 :   Submitted: June 9, 2017
Unemployment Compensation                        :
Board of Review,                                 :
                 Respondent                      :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                  FILED: August 30, 2017



               Joseph R. Gumpher III (Claimant) petitions pro se for review of the
September 30, 2016 order of the Unemployment Compensation Board of Review
(Board) affirming a referee’s decision and holding that Claimant was ineligible for
unemployment compensation benefits under sections 401(f) and 402(b) of the
Unemployment Compensation Law (Law).1 We affirm.

       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§801(f), 802(b). Section 401(f) states that a claimant is ineligible for compensation if he earns less
than six times his weekly benefits rate at a subsequent job from which he is separated. Section
402(b) of the Law states that a claimant is ineligible for compensation for any week in which his
unemployment is due to voluntarily leaving work without cause of a necessitous and compelling
nature.
            Claimant worked as a junior painter for Epic Metals Corporation
(Employer) from April 14, 2014, to March 11, 2016. When Claimant began work for
Employer, he was informed that Employer may require him to work occasional
evenings. Claimant’s family consists of his wife and four children, one of whom is
disabled and has special needs.     Claimant’s wife, who was not employed when
Claimant began work with Employer, subsequently obtained a job at K-Mart,
working from 3:30 p.m. to close. Claimant would watch the children in the evening
and his wife would watch them during the day. (Referee’s Findings of Fact Nos. 1-
7.)
            In December of 2015, Claimant was assigned to work a night shift.
During that time period, while Claimant worked at night, his wife was permitted to
switch her shift to daylight, although she was told that another request to do so would
not be granted. In March of 2016, Employer advised Claimant that he would again
be required to work the night shift from March 14-18, 2016. Claimant spoke to his
supervisor and indicated that he would not be able to work a night shift because his
wife, who was also working the night shift, would not be able to change her shift.
(Referee’s Findings of Fact Nos. 8-12.)
             On March 14, 2016, Claimant posted on his Facebook page, “Time for a
change, Work decided to have 2nd Shift, (Picked for that) don’t like, so chose not
to… it’s choice you can make when retired. There are other jobs. time to relax for a
while [sic].” (Reproduced Record (R.R.) at 72a; Referee’s Finding of Fact No. 14.)
Claimant then ceased going to work and did not inquire about returning. Claimant
filed for unemployment compensation benefits, establishing a weekly benefit rate of
$414.00. Although Claimant subsequently found other work, he did not earn six
times his weekly benefit rate. (Referee’s Findings of Fact Nos. 13-16.)



                                          2
                 A referee determined that Claimant was ineligible for benefits under
section 402(b) of the Law because, by his own Facebook posting, Claimant indicated
he “chose not to” work, stating it was “time to relax for a while,” and therefore did
not have a necessitous and compelling reason for voluntarily quitting his
employment. (R.R. at 77a.) The referee also found that Claimant was ineligible
under section 401(f) of the Law because he had not yet earned six times his weekly
benefit rate.2 (R.R. at 76a.)
                 Claimant appealed to the Board, which affirmed the referee and adopted
the referee’s findings of fact and conclusions of law, but additionally stated:

                 [C]laimant failed to make any inquiry if he could have
                 [had] someone other than his mother watch his two younger
                 children on the nights he was to work night shift. While the
                 [C]laimant alleged he did not have the funds, the [C]laimant
                 failed to credibly establish with sufficient specificity that he
                 was financially unable to handle this limited child care
                 issue. Rather, the Board agrees that the Claimant did not
                 like it when he had to work the night shift and therefore
                 simply did not make a reasonable effort to maintain his
                 employment.
(R.R. at 100a.)
                 On appeal to this Court,3 Claimant argues that the Board erred in
concluding that he voluntarily left work without cause of a necessitous and
compelling nature. Claimant contends that he had a necessitous and compelling
reason to voluntarily terminate his employment because he needed to care for his

       2
           In his brief, Claimant does not dispute this fact and it is therefore not at issue here.

       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.




                                                      3
children. Claimant contends that, had he gone to work, he would have broken the law
because child “abandonment is against the law”4 and his two older children “were not
responsible enough to properly provide suitable care.” (Claimant’s Brief at 11.)
Claimant further argues that his wife would have been fired from her job if he had
gone to work and states, “There is no law that says an employee can force a spouse to
terminate their [sic] employment for their [sic] needs.” (Claimant’s Brief at 12.)
Although he does not expand on this argument, Claimant is presumably arguing that,
had his wife again requested to switch to day shift to accommodate his shift change,
she would have been fired.
              This Court has previously held that the inability of a parent to care for
his child may constitute a necessitous and compelling reason for terminating
employment. See Ganter v. Unemployment Compensation Board of Review, 723
A.2d 272 (Pa. Cmwlth. 1999). However, “[t]ypically, in order to prove a necessitous
and compelling reason to quit, a claimant must establish that [he] exhausted all other
alternative childcare arrangements, such as making a concerted effort to find another
baby-sitter or locate a suitable day care center.”                 Shaffer v. Unemployment
Compensation Board of Review, 928 A.2d 391, 394 (Pa. Cmwlth. 2007).
              In Shaffer, this Court faced a similar issue in which a claimant
voluntarily terminated her position due to childcare issues. There, the claimant’s
employer relocated approximately 10 miles away, and, as a result, the claimant’s in-
laws, who provided daycare services for her child, were no longer able to continue

       4
         Claimant refers the Court to the regulations of the Department of Human Services, namely
55 Pa. Code §3490.4, which is the definition section of the Child Protective Services subchapter of
the Children, Youth, and Families Manual. This subchapter addresses child abuse and the duty of
county agencies to investigate reports of abuse and issue indicated/founded reports under the Child
Protective Services Law, 23 Pa.C.S. §§6301 – 6386. Notably, this regulation does not discuss
abandonment of a child.



                                                4
watching the child because of the additional commute time. Id. at 392-93. We
upheld the denial of claimant’s benefits, noting:

               The record here reveals that [c]laimant investigated only
               one daycare facility for her daughter, which she determined
               was not a cost effective alternative, but [c]laimant did not
               offer evidence that she looked into any other childcare
               arrangements. Moreover, [c]laimant offered no evidence
               that she explored alternative arrangements for her son’s
               before and after school care. Under these circumstances,
               we conclude that [c]laimant did not establish that she made
               a concerted effort to find alternative childcare
               arrangements. Therefore, the [Board] did not err in holding
               that [c]laimant failed to meet her burden of proving that she
               had cause of a necessitous and compelling reason to
               voluntarily terminate her employment.
 Id. at 394 (emphasis in original).
               Here, the record reveals that Claimant did even less to investigate
whether there were alternative childcare arrangements that could have been made
which would have permitted him to go to work. When asked whether he could have
received help from a family member to watch the children, Claimant responded, “The
only one that could assist me would be my mother but she was unable to help me that
week.” (R.R. at 58a.) When asked about the possibility of paying someone to watch
his children, Claimant simply stated, “Funds were not available for that.” 5 (R.R. at

       5
         In his brief, Claimant curiously takes issue with the Board’s finding that “claimant alleged
he did not have the funds [to afford a babysitter].” Claimant demands to know “what FACT based
review of finding’s [sic] did this allow the Board to deny me my benefits based on my available
funds. There was no request or submission of my income.” (Claimant’s Brief at 10.) Claimant,
however, ignores that he, himself, testified to this fact in support of his argument that he had no
other options but to miss work in order to supervise his children. Moreover, it was Claimant’s and
not the Board’s burden to produce evidence demonstrating that his voluntary termination was for a
necessitous and compelling reason—in this case, that Claimant exhausted all other alternative
childcare arrangements. See Brown v. Unemployment Compensation Board of Review, 780 A.2d
885, 888 (Pa. Cmwlth. 2001).



                                                 5
58a.) Claimant presented no evidence that he inquired into the cost of a babysitter or
that, had he found one, he would have been unable to afford paying him or her for
that week.
              Because Claimant has failed to establish that he made a concerted effort
to find alternative childcare arrangements, we find that the Board did not err in
determining that Claimant failed to meet his burden of proving a necessitous and
compelling reason for voluntarily terminating his employment.
              In his brief, Claimant also argues that the Board improperly relied on his
Facebook posting. In response, Employer argues that the referee’s reliance on the
posting was permissible and cites this Court’s decision in Harnish v. Unemployment
Compensation Board of Review, (Pa. Cmwlth., No. 883 C.D. 2010, filed March 17,
2011),6 in which we affirmed the Board’s decision to deny a claimant benefits based
on, inter alia, her violation of the employer’s policy on dishonesty. There, the
employer determined that the claimant was dishonest when she told her employer that
she had not held a meeting with other employees at her house because the employer
confirmed that such a meeting had taken place by viewing various Facebook posts.
Harnish, slip op. at 3.
              Similarly, in VanKersen v. Unemployment Compensation Board of
Review, (Pa. Cmwlth., No. 1771 C.D. 2014, filed April 21, 2015), we analyzed the
contents of a claimant’s Facebook post regarding a motor vehicle accident to
determine whether there was substantial evidence supporting a referee’s finding that



       6
         Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code
§69.414(a), an unreported Commonwealth Court panel decision issued after January 15, 2008, may
be cited for its persuasive value, but not as binding precedent. See Lil Shining Stars, Inc. v.
Department of Human Services, 140 A.3d 83, 94 n.7 (Pa. Cmwlth. 2016).



                                              6
the claimant had admitted the accident he was involved in could have been avoided.
VanKersen, slip op. at 3-5.
             Here, Claimant does not dispute that he authored the Facebook post and
expressed regret for having done so stating, “I made it, I made it out of haste and
regret, so [sic]. It is my personal Facebook page.” (R.R. at 62a.) Rather, Claimant
simply argues that he “cannot believe that this system would allow the soul [sic]
denial of benefits solely based on the Facts presented by Epic metals on a Social
Media web page.” (Claimant’s Brief at 11.) Thus, Claimant’s argument does not
appear to be that the referee’s finding of fact that Claimant made the statement was
unsupported by substantial evidence, but rather he appears to argue that the referee
should not have considered the post at all.
             Initially, we note that Claimant is raising this issue for the first time on
appeal as he made no objection to the introduction of the Facebook post during the
hearing. Furthermore, Claimant does not present any authority for this proposition.
Nor does he address the fact that this Court has considered the content of social
media posts in previous cases when determining whether there was substantial
evidence to support a finding of fact. Moreover, the basis of the Board’s ineligibility
determination was that Claimant had failed to demonstrate that he could not obtain
other childcare arrangements for that week. Thus, although the post provides some
background information regarding the circumstances of Claimant’s voluntary
termination, it is not the finding upon which the Board based its benefit ineligibility
determination.
             Claimant also takes issue with two exhibits introduced at the hearing.
The first was a letter, dated March 21, 2016, from Employer’s general counsel,
Laurence R. Landis, to Claimant confirming Claimant’s resignation on March 17,



                                              7
2016. (R.R. at 12a.) The second was an e-mail from Employer’s payroll manager to
an unemployment compensation claims examiner with the Pennsylvania Department
of Labor and Industry stating, inter alia, “When the need for a second shift ended
[Claimant] did not return for the first shift and indicated he was resigning.” (R.R. at
16a.) Claimant cites these exhibits as a demonstration of Employer’s “intent to
mislead the facts” because, Claimant alleges, he never gave them “verbal intent to
resign.” (Claimant’s Brief at 12.)
             Regardless of the merits of these arguments, we need not address them
as the referee sustained objections by Claimant’s attorney to these documents during
the hearing on the grounds of hearsay.         Moreover, these documents were not
referenced at any point in the referee’s findings of fact or conclusions of law, nor did
they constitute the basis for the Board’s determination. (R.R. at 53a, 75a-77a, 100a.)
             Finally, Claimant takes issue with the referee’s finding that “Claimant
did not return to work, did not ask to be returned to work, and applied for UC benefits
effective July 3, 2016 . . . .” (Referee’s Finding of Fact No. 15.) Although he admits
he did not report for work the following Monday, Claimant suggests that he intended
to reach out to Employer about returning to work that week, expecting to receive a
warning for his absence during the previous week, but, before he had a chance to call
Employer, he received the letter from Mr. Landis confirming his resignation. In other
words, Claimant asserts that, had he not received the March 21, 2016 letter from Mr.
Landis acknowledging his resignation, he would have returned to work the following
week.
             However, Claimant’s argument, even if true, does not dispute the content
of the referee’s finding of fact. That is to say, Claimant does not argue that he did
attempt to call Employer or that he did return to work. Instead, Claimant is merely



                                           8
recounting the underlying reason for his decision not to do either.   Therefore,
Claimant has alleged no reviewable error in this finding of fact.
             Accordingly, for the reasons set forth above, the order of Board is
affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge



Judge Cosgrove dissents.




                                           9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph R. Gumpher, III,              :
                Petitioner           :
                                     :    No. 1735 C.D. 2016
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :



                                  ORDER


           AND NOW, this 30th day of August, 2017, the September 30, 2016
order of the Unemployment Compensation Board of Review is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
