               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clyde A. Sherman,                              :
                              Petitioner       :
                                               :
                 v.                            :   No. 2683 C.D. 2015
                                               :   Submitted: June 17, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: August 26, 2016


                 Petitioner Clyde A. Sherman (Claimant), acting pro se, petitions for
review of an order of the Unemployment Compensation Board of Review (Board).
The Board affirmed a Referee’s determination that Claimant was ineligible for
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law), relating to voluntarily leaving employment without
cause of a necessitous and compelling nature.1 For the reasons set forth below, we
affirm.




       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
                 On April 10, 2015, Claimant filed for unemployment compensation
benefits subsequent to his resignation from the School District of Philadelphia
(Employer), where he worked as a substitute teacher. Claimant’s resignation was
pursuant to a settlement agreement for a workers’ compensation claim stemming
from an injury he had sustained during his employment. On June 25, 2015, the
Erie UC Service Center (Service Center) issued a determination granting Claimant
eligibility for unemployment compensation benefits pursuant to Section 402(b) of
the Law. (Certified Record (C.R.), Item No. 2.) On June 30, 2015, Employer
informed a UC office representative that Claimant’s employment ended via a
signed agreement between Claimant and Employer to settle a workers’
compensation claim, which prompted the Service Center to review Claimant’s
eligibility. (C.R., Item No. 3.)
                 On July 1, 2015, the Service Center issued a redetermination notice,
denying Claimant eligibility for unemployment compensation benefits pursuant to
Section 402(b) of Law, as Claimant had voluntarily quit his employment without a
necessitous and compelling reason. (C.R., Item No. 5.) Further, the Service
Center assessed Claimant a non-fault overpayment in the amount of $1,038,
pursuant to Section 804(b) of the Law.2 (Id.) Claimant appealed the Service
Center’s determination, and an unemployment compensation referee (Referee)
conducted an evidentiary hearing on July 30, 2015. (C.R., Item No. 8.)                 Only
Thomas Scola, Employer’s tax consulting representative, appeared at the hearing.
(Id.) Mr. Scola testified, in pertinent part:


       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S.
§ 874(b).



                                               2
            R     All right, do you have anything you want to say
                  about this?

            TS    No.      Just that it seems to be a pretty
                  straightforward case. The Claimant voluntarily
                  resigned. There’s no indication that there was any
                  duress on the part of the employer and, therefore,
                  benefits should be denied.

            R     All right. On that note, I’m going to bring this
                  hearing to a close. I’ll look this over, issue a
                  Decision on it. The parties should get a copy of
                  that Decision within a couple weeks.
(Id.)
            After the hearing, the Referee affirmed the determination of the
Service Center and concluded that Claimant was ineligible for unemployment
compensation benefits with a non-fault overpayment in the amount of $1,038.
(C.R., Item No. 11.) The Referee made the following findings of fact:

            1.    The claimant began employment with the School
                  District of Philadelphia on September 2, 2013.
                  The claimant’s last actual day at work was
                  May 15, 2014.

            2.    In order to settle a Worker’s Compensation claim
                  the claimant accepted a Compromise and Release
                  Agreement.

            3.    In order to accept the Compromise and Release
                  Agreement the claimant was required to resign
                  from this employment.

            4.    There is no competent evidence in the record that
                  when filing for benefits for the weeks at issue in
                  this appeal the claimant attempted to defraud the
                  UC Service Center.

(Id.)


                                        3
             In determining that Claimant should be ineligible for unemployment
compensation benefits, the Referee reasoned:
             The documentary evidence available in the record
             indicates that the claimant voluntarily left this
             employment because he was required to do so when he
             chose to accept a Compromise and Release Agreement
             offered to settle his Workers’ Compensation claim.
             The Commonwealth Court has consistently held that a
             claimant who leaves employment in order to accept a
             Compromise and Release Agreement does not have good
             cause to leave employment for the purpose of
             Unemployment Compensation eligibility. Accordingly,
             the claimant has not met his burden of proving that he
             had good cause to leave this employment and benefits
             must be denied in accordance with Section 402(b) of the
             Law.

(Id.) Claimant appealed this decision to the Board, which remanded the case to a
Referee to act as Hearing Officer for the Board. (C.R., Item Nos. 12-13.) The
Board ordered the remand hearing for the purpose of receiving testimony and
evidence on the Claimant’s reason for his non-appearance at the previous hearing.
(C.R., Item No. 13.) The Board permitted the parties to offer new or additional
testimony and evidence, which the Board would consider if it found that Claimant
had good cause for his non-appearance at the initial hearing. (Id.)
             Following the remand hearing, the Board affirmed the decision of the
Referee, adopting the Referee’s findings of fact and conclusions of law.
(C.R., Item No. 18.)    The Board determined that Claimant’s reasons for his
non-appearance at the first hearing (traffic and parking issues) were legally
insufficient to establish good cause for his absence. (Id.) The Board, therefore,
did not consider either party’s testimony at the second hearing to the extent that it
related to the merits. Claimant now petitions this Court for review.


                                         4
               On appeal,3 Claimant argues that the Board erred as a matter of law in
concluding that he was ineligible for unemployment compensation benefits.4
(Petitioner’s Brief at 7.) Specifically, Claimant argues that because the facts are
the same as they were when the Service Center originally declared him eligible for
unemployment compensation benefits, it was in error to subsequently declare him
to be ineligible. (Id.) Claimant also argues that his voluntary resignation from
employment in order to settle his workers’ compensation claim constituted a
necessitous and compelling reason to terminate one’s employment, thus making
him eligible for unemployment compensation benefits pursuant to Section 402(b)
of the Law.5 (Id.)



       3
         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.
       4
          Claimant does not dispute any of the factual findings, and, accordingly, those findings
of fact are binding on appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167,
1169 (Pa. Cmwlth. 1997). Further, this Court notes that Claimant does not specifically challenge
the assessment of a non-fault overpayment in the amount of $1,038.
       5
          In his petition for review, Claimant questions the negotiation tactics of Employer during
the settlement process. It is Claimant’s contention that Employer attempted to deceive Claimant
in order to receive his resignation, as Claimant was unaware that he had the option to settle his
workers’ compensation claim with the school without resigning. Based on those allegations,
Claimant appears to contend that he had necessitous and compelling reasons for his resignation.
Because Claimant did not have good cause for his non-appearance at the first hearing, the Board
did not consider any of his testimony at the second hearing as to the merits. Thus, the Board did
not consider any evidence presented by Claimant as to the circumstances surrounding Claimant’s
execution of the compromise and release agreement as part of his workers’ compensation
settlement. Thus, there was no evidence of record to support a finding that Employer
purposefully attempted to deceive Claimant, and the Board did not err in failing to make such a
finding.



                                                5
             First, we address Claimant’s argument that he should be granted
benefits because there was no new evidence to render a different decision from the
original determination that granted him benefits. This argument has no merit. The
Department of Labor and Industry has the ability to revise a determination within
the fifteen-day appeal period if no appeal has been filed, pursuant to Sections
501(d) and (e) of the Law.6 The Service Center initially found Claimant eligible
for benefits on June 25, 2015. (C.R., Item No. 2.) Before any appeal was filed, the
Service Center issued a redetermination on July 1, 2015, finding Claimant to be not
eligible and denying unemployment compensation benefits. (C.R., Item No. 5.)
As this was done within the proscribed fifteen-day window and no appeal had
previously been filed, the Department of Labor and Industry, through the Service
Center, did not exceed its authority in issuing the redetermination.
             Next, we address Claimant’s argument that the Board erred in
concluding that he had not established a cause of a necessitous and compelling
nature for resigning his employment with Employer. Section 402(b) of the Law
provides, in part, that a claimant shall be ineligible 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. 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. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388,
389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits his employment bears
the burden of proving that necessitous and compelling reasons motivated that


      6
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(d) and (e), respectively.



                                           6
decision. Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d
1126 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). In order to
establish cause of a necessitous and compelling nature, a claimant must establish
that (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 (Pa. Cmwlth. 2008).
             Here, in adopting the Referee’s findings, the Board found that
Claimant resigned from employment via a Compromise and Release Agreement as
part of a settlement for a workers’ compensation claim. (C.R., Item Nos. 11, 18.)
As such, the Board determined that Claimant did not have a necessitous or
compelling reason to terminate his employment. (Id.) We agree. It has been
previously held by this Court that when a claimant terminates his employment via
a release agreement, the individual has terminated his employment without a
necessitous and compelling cause for the purposes of Section 402(b) of the Law.
See Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011).
             The claimant in Lee filed for workers’ compensation after suffering a
herniated   disc   while   working   within   the   scope   of her   employment.
Id. at 718. Subsequently, the claimant agreed to settle the workers’ compensation
claim with the employer. Id. In consideration for the settlement agreement, the
claimant also agreed to execute a resignation/release, which included the
claimant’s resignation as part of the settlement. Id. The claimant then attempted
to file for unemployment compensation benefits, which this Court ultimately
denied pursuant to Section 402(b) of the Law. Id. at 722. In holding such, this


                                        7
Court found that claimant did not establish that she resigned her employment for a
necessary and compelling reason, as she chose to voluntarily terminate her
employment in order to settle her workers’ compensation claim. Id.
            There is no compelling reason to deviate from this established
precedent in this case.   Thus, the Board did not err as a matter of law in
determining that Claimant was not eligible for unemployment compensation
benefits.
            Accordingly, the order of the Board is affirmed.




                               P. KEVIN BROBSON, Judge




                                        8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clyde A. Sherman,                   :
                     Petitioner     :
                                    :
           v.                       :   No. 2683 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 26th day of August, 2016, the order of
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
