                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin E. Jacobs,                                :
                              Petitioner        :
                                                :
                      v.                        :
                                                :
Unemployment Compensation                       :
Board of Review,                                :   No. 484 C.D. 2015
                    Respondent                  :   Submitted: September 11, 2015


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                         FILED: December 21, 2015

               Kevin E. Jacobs (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 11, 2015
order affirming the Referee’s decision denying him UC benefits under Section 402(b)
of the UC Law (Law).1 The sole issue before this Court is whether the UCBR erred
when it concluded that Claimant voluntarily quit his employment without a
necessitous and compelling reason. After review, we reverse.
               Claimant worked for staffing agency Bridgeview Partners (Employer)
from August 4, 2014 through September 15, 2014. Claimant accepted an assignment
and signed a subcontractor agreement (Agreement) to work 40 hours per week as a
help desk analyst for Independence Blue Cross for 12 months at a rate of $18.00 per
hour.       Claimant testified that, at the time he executed the Agreement, his
understanding was that he would be paid on the 15th and the last day of each month.


        1
         Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to ineligibility for UC benefits “due to voluntarily leaving work without cause of a
necessitous and compelling nature[]”).
He was not paid on August 15, 2014 and, due to concern about his finances, he
brought the matter to Employer’s attention.              Employer issued Claimant a check
outside the payroll system. The same situation occurred when he was not paid on
August 30, 2014. Employer informed Claimant that he would have to wait 30 days
for the next check. On September 18, 2014, Claimant notified Employer that unless
he received his overdue pay by September 21, 2014, he would not report to work and
he would consider the Agreement terminated due to Employer’s breach.                             By
September 29, 2014 letter, Employer notified Claimant that the Agreement was
terminated effective September 26, 2014.
               Claimant subsequently filed for UC benefits. On October 23, 2014, the
Altoona UC Service Center issued a determination finding Claimant eligible for
benefits under Section 402(b) of the Law.2               Employer appealed, and a Referee
hearing was held. By December 5, 2014 decision, the Referee declared Claimant
ineligible for UC benefits under Section 402(b) of the Law. Claimant appealed to the
UCBR. The UCBR affirmed the Referee’s decision. Claimant appealed to this
Court.3
               Claimant argues that the UCBR erred by concluding that he voluntarily
quit his employment without a necessitous and compelling reason.                          Claimant
specifically contends that since Employer’s failure to pay him in a timely manner
resulted in his financial hardship and, consequently, caused transportation issues, his
separation was not voluntary. We agree.

       2
          On September 8, 2014, the UC Service Center issued a determination finding Claimant
eligible for benefits under Section 402(e) of the Law, 43 P.S. § 802(e) (relating to discharge for
willful misconduct). The UC Service Center later vacated and then reissued its determination on
October 23, 2014 finding Claimant eligible for benefits under Section 402(b) of the Law.
        3
          “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).


                                                 2
             “In unemployment compensation cases, the claimant has the burden of
proving eligibility for benefits. . . . Where a claimant has voluntarily terminated his
work, the claimant bears the burden of proving that such termination was with cause
of a necessitous and compelling nature.” Petrill v. Unemployment Comp. Bd. of
Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005) (quoting Pacini v. Unemployment
Comp. Bd. of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986) (citations omitted)).

             Whether an employee has cause of a necessitous and
             compelling nature to quit employment is a legal conclusion
             subject to appellate review. In order to show necessitous
             and compelling cause, ‘the claimant must establish that: 1)
             circumstances existed which produced real and substantial
             pressure to terminate employment; 2) like circumstances
             would compel a reasonable person to act in the same
             manner; 3) []he acted with ordinary common sense; and 4)
             []he made a reasonable effort to preserve h[is]
             employment.’ Fitzgerald v. Unemployment [Comp.] [Bd.]
             of Review, 714 A.2d 1126, 1129 (Pa.Cmwlth.1998)[.]

Comitalo v. Unemployment Comp. Bd. of Review, 737 A.2d 342, 344 (Pa. Cmwlth.
1999) (citation omitted).
             At the Referee hearing, Claimant testified that he was due to receive his
pay for work hours between August 4st and 12th on August 15, 2014. Claimant
explained that when he did not receive his August 15, 2014 paycheck, he spoke to
Employer’s Sales Support Specialist Kevin Perry (Perry), Vice President of
Consulting Andrew Rosenberger (Rosenberger) and Managing Partner Nick Robak.
Claimant recounted that Perry, Rosenberger and Robak looked into the situation and
told him that there was a payroll issue to be worked out. Claimant recalled receiving
a check, issued outside Employer’s payroll system, approximately 3 or 4 days later.
Claimant described that the same situation occurred when his August 30 th paycheck
was due, but after receiving the second out-of-payroll check, Perry notified Claimant
that Employer could no longer pay him in that manner and that he would have to wait


                                          3
30 days (until approximately September 30, 2014) for his next check, due to
“problems with the onboarding process when they first hired [him] and there was
some mistakes with the way the cycles were getting in their payroll system.”
Certified Record (C.R.) Item 12, Notes of Testimony, December 5, 2014 (N.T.) at 8.
Claimant described telling Perry that due to his family expenses and his train costs,
waiting a month for his next paycheck would be a problem for him, so Perry and
Rosenberger agreed to work on a solution.
            Claimant recounted that he talked to Perry, Rosenberger and Robak
again after he was not paid on September 15, 2014.            Claimant testified that
Rosenberger told him there was nothing more Employer could do, and that
Employer’s finance department refused to issue another non-payroll check. Claimant
recalled sending Employer a notice stating that if the problem is not worked out, he
would not be able to get to work due to lack of resources. Claimant asserted that he
depended upon a timely paycheck “for resources to get to work and to . . . continue to
work.” N.T. at 6. Claimant disclosed that he eventually received his September pay
on October 15, 2014.
            Claimant contends that his understanding of how he would be paid
initially came from Employer’s representative Carrie Sweeney (Sweeney). Claimant
maintains that Sweeney told him the date on which his pay commenced “depended on
how fast [he] got put into their Harvest System[].” N.T. at 19. Claimant described:

            [L]et’s say I work . . . [8/4] through [8]/12[,] as long as
            everything is submitted and approved by that Friday[,] I
            would receive my pay on the 15th and be in their schedule.
            When this didn’t occur[,] . . . the problems began. And I
            have e-mails and conversation with [Sweeney] going back
            and forth that mentioned, you know, when [Employer was]
            setting up the Harvest ID confirming that I would get paid
            on [8]/15 now that this is in now.



                                            4
N.T. at 19. Claimant declared that although Employer initially did not claim his
understanding was incorrect, “[l]ater when [he] didn’t get paid and . . . [they] started
talking about the problems[,] then things started to change. Then . . . [he] was getting
fuzzy information.” N.T. at 19. According to Employer’s Team Information Sheet,
paychecks are deposited “on the 15th and the last day of each month.” C.R. Item 2,
Team Information Sheet at 2.
             Claimant acknowledged that Employer “tried [its] best to work with
[him] but . . . ultimately . . . there was a lot of confusion with [its] onboarding process
and [it] tried to fix it.” N.T. at 20. Claimant informed the Referee that everything
else about the job “worked well.” N.T. at 11. Claimant submitted no documentary
evidence of financial hardship.
             Perry confirmed that Claimant informed Employer during the week of
September 21, 2014 that he would no longer work for Employer due to “lack of
timely payroll[.]” N.T. at 15. Perry also testified:

             EL [Employer’s Lawyer] . . . When [Claimant] first came
             on board[,] were there any discussions about the timing of
             payment after he submitted an invoice?
             [Perry] There was[,] and it was communicated that it would
             be two weeks from when he started or when his last day of
             the payroll cycle would be.
             EL Okay.
             [Perry] So[,] from the first of the month to the 15th. . . , any
             of those hours we pay at the end of the month, last day of
             the month.
             EL Okay, so he was told from the very beginning that there
             would be the half-month lag so he was to submit an invoice
             for the 1st through the 15th and then that would be paid at
             the end of the month and that he was told that from the very
             beginning?
             [Perry] Yes.

                                            5
              EL Okay. And how did it come that he was -- that these
              special checks were cut?
              [Perry] Because he was upset then we thought that there
              was miscommunication and we wanted to keep him happy
              so we . . . cut a check right after the 15th, right after that first
              pay period. We did that again following at the end of the
              month and then communicated to him we can’t keep this
              process going. We weren’t in the wrong in the first place.
              We were just trying to cut the checks sooner and[,] to get
              back on the original schedule[,] we would have to wait, you
              know, he was already prepaid up front so the next paycheck
              according to the original schedule would be September 30 th.

N.T. at 16.     Perry stated that Employer did everything it could do to resolve
Claimant’s concerns, and if Claimant had continued reporting to Independence Blue
Cross, his relationship with Employer would have continued.
              “In unemployment compensation matters, ‘the [UCBR] is the ultimate
fact finder and is empowered to resolve conflicts in the evidence and to determine the
credibility of witnesses.’” Goppman v. Unemployment Comp. Bd. of Review, 845
A.2d 946, 947 n.2 (Pa. Cmwlth. 2004) (quoting Owoc v. Unemployment Comp. Bd. of
Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002)). “Findings made by the [UCBR] are
conclusive and binding on appeal if the record, examined as a whole, contains
substantial evidence to support the findings.”         Umedman v. Unemployment Comp.
Bd. of Review, 52 A.3d 558, 563-64 (Pa. Cmwlth. 2012) (quoting Owoc, 809 A.2d at
443). “Substantial evidence is evidence which a reasonable mind might accept as
adequate to support a conclusion.” Id. at 564 (quoting Wheelock Hatchery, Inc. v.
Unemployment Comp. Bd. of Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994)).
This Court has held:

              In deciding whether there is substantial evidence to support
              the [UCBR’s] findings, this Court must examine the
              testimony in the light most favorable to the prevailing party,
              in this case, the Employer, giving that party the benefit of
              any inferences which can logically and reasonably be drawn
              from the evidence.
                                               6
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).

             Based upon the evidence presented in this case, the UCBR found, in
relevant part:

             4. [Claimant] believed that he would be paid the 15 th and
             the 30th of the [m]onth.
             5. [Employer] informed [Claimant] that he would be paid
             for his first two weeks of work in a month on the 30 th and
             every two weeks thereafter.
             6. [Employer] did provide [Claimant] an early check on the
             first and second pay period to address [Claimant]’s
             confusion and concerns.
             7. Thereafter[,] [Employer] informed [Claimant] he would
             have to be on the regular payroll schedule which would
             result in [him] . . . being paid two weeks later.
             8. [Claimant] informed [Employer] he would require
             regular payments to remain working in his assignment with
             Independen[ce] Blue Cross.

UCBR Dec. at 1. The UCBR concluded:

             [Claimant] has unfortunately failed to meet his burden of
             proof in this proceeding. While [Claimant] asserted that he
             was not paid timely, the [UCBR] must conclude based on
             the credible testimony of [Employer] that the regular
             pay period was to submit time for a two[-]week period
             to be paid the following pay period. Thus, [Claimant]
             would have to wait a month to be paid under the normal
             plan of [Employer]. Thus, this fails to establish a
             necessitous and compelling reason to quit. We next turn
             our attention to [Claimant]’s assertion that he had bills and
             could not wait a month for his pay. Unfortunately,
             [Claimant] has failed to provide the specific testimony
             and evidence that would support such an allegation or
             what steps he made to address any temporary concerns of
             finances until he was on a regular pay schedule with pay


                                          7
               every two weeks.[4] We are therefore constrained to deny
               benefits under Section 402(b) of the Law.

UCBR Dec. at 2 (emphasis added).
               The UCBR’s conclusion that Employer’s failure to timely pay Claimant
in this case was not a necessitous and compelling reason to quit is contrary to the law.
This Court has held:

               Where an employee terminates an employment relationship
               because of the employer’s repeated failure to pay wages in a
               timely manner and on an established pay day,
               Pennsylvania’s Wage Payment and Collection Law[5] is
               implicated. Section 4 of the Wage Payment and Collection
               Law generally provides:
                   It shall be the duty of every employer to notify his
                   employes at the time of hiring of the time and place
                   of payment and the rate of pay and the amount of
                   any fringe benefits or wage supplements to be paid
                   to the employe . . . or . . . for the benefit of the
                   employe[]. . . .
               43 P.S. § 260.4. Moreover, Section 3 of the Wage Payment
               and Collection Law is absolutely explicit in its statement
               that: ‘Every employer shall pay all wages . . . due to his
               employes on regular paydays designated in advance by the
               employer.’ 43 P.S. § 260.3. Thus, employees are well
               within their rights to demand timely payment for work
               performed.     Indeed, payment as agreed for services
               rendered is the very essence of an employment relationship,
               such that no employee can be compelled to work without
               payment.

       4
          Claimant supplied e-mails of Employer’s purported misrepresentations and documentation
of his alleged financial hardship for the first time on appeal to the UCBR. See C.R. Item 14; see
also N.T. at 19; Claimant Br. at 10. Although referenced therein, no such documentation was
attached to his brief to this Court. Notwithstanding, “[f]or purposes of appellate review, that which
is not part of the certified record does not exist. Documents attached to a brief as an appendix or
reproduced record may not be considered by an appellate court when they are not part of the
certified record.” B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citation
omitted). Consequently, this Court would likewise be precluded from addressing those documents.
        5
          Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§ 260.1–260.12.


                                                 8
           Furthermore, Section 7 of the Wage Payment and
           Collection Law clearly states: ‘No provision of this act shall
           in any way be contravened or set aside by a private
           agreement.’ 43 P.S. § 260.7. . . . [I]t is clear that under the
           cited provisions of the Wage Payment and Collection Law,
           erratic and intermittently late payments are unacceptable as
           a matter of law.
           Accordingly:
               This Court has held that several instances of tardy
               wage payments resulting in employee protest and
               refusal by the employer to guarantee timely
               payment of wages as demanded by the employee
               can constitute necessitous and compelling cause for
               that termination.
           Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d
           594, 597 (Pa. Cmwlth. 1997) (citation omitted).
           ....
           This Court’s opinion in Warwick indicates, without
           examination of the Wage Payment and Collection Law, that
           claimants must request a guarantee of adherence to a rigid
           payment schedule after protesting tardy payments in order
           to retain eligibility for unemployment compensation. See
           Warwick, 700 A.2d at 597 (citing Koman v. Unemployment
           Comp. Bd. of Review, . . . 435 A.2d 277 ([Pa. Cmwlth.]
           1981)). Given that the Wage Payment and Collection
           Law already requires adherence to a rigid payment
           schedule, we hold that it is sufficient for employees to
           complain of late payments, so long as the employer is
           afforded a reasonable opportunity to address the
           employee’s complaints.
           Clearly, failure to make timely payment for services
           rendered creates a real and substantial pressure upon
           an employee to terminate employment. Without
           question, repeat occurrences would cause a reasonable
           person to terminate employment.

Shupp v. Unemployment Comp. Bd. of Review, 18 A.3d 462, 464-65 (Pa. Cmwlth.
2011) (emphasis added).


                                         9
            The record evidence in the instant case established that Employer failed
to timely pay Claimant for his services. Claimant twice notified Employer and
accepted non-payroll checks in an effort to preserve his employment. It was not until
Employer notified Claimant that he would have to wait yet another 30 days for his
pay that Claimant voluntarily quit. Accordingly, under the specific circumstances of
this case, the UCBR erred as a matter of law by concluding that Claimant voluntarily
quit his employment without a necessitous and compelling reason.
            For all of the above reasons, the UCBR’s order is reversed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin E. Jacobs,                       :
                        Petitioner     :
                                       :
                   v.                  :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 484 C.D. 2015
                    Respondent         :



                                     ORDER

            AND NOW, this 21st day of December, 2015, the Unemployment
Compensation Board of Review’s March 11, 2015 order is reversed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
