                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Ackley,                                :
                          Petitioner           :
                                               :
                   v.                          : No. 1885 C.D. 2016
                                               : SUBMITTED: March 31, 2017
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:            HONORABLE RENÉE COHN JUBELIRER, Judge
                   HONORABLE JULIA K. HEARTHWAY, Judge
                   HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
JUDGE HEARTHWAY                                   FILED: July 13, 2017


                   William Ackley (Claimant) petitions for review of the November 1,
2016 order of the Unemployment Compensation Board of Review (Board) which
reversed the referee’s decision, and thereby denied Claimant unemployment
compensation (UC) benefits under section 402(b) of the UC Law (Law),1 because
his unemployment was due to voluntarily leaving work without cause of a
necessitous and compelling nature. We affirm.


                   Claimant     was    employed     full-time    by   Express    Employment
Professionals (Employer) from May 2, 2016 through May 27, 2016, when he
terminated his employment. (Board’s Findings of Fact (F.F.) Nos. 1, 3.) On May

          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
26, 2016, Claimant had accepted an offer of employment from Walmart and began
working there part-time on June 1, 2016. (Certified Record (C.R.) Item No. 8,
8/18/16 Notes of Testimony (N.T.) at 2.) Claimant subsequently applied for UC
benefits, stating that when he accepted the job at Walmart, it was full-time and he
was told after he was hired that it was part-time. (C.R. Item No. 2, Exhibit 5.) The
Altoona UC Service Center granted Claimant benefits.


             Employer appealed and a hearing was held before a referee, at which
Claimant and a witness for Employer testified. The referee then issued a decision
and order affirming the UC Service Center’s determination. Employer appealed to
the Board, and the Board remanded the matter to a referee to further develop the
record to allow the Board to properly rule on the matter.


             At the remand hearing, Claimant stated that when he applied for and
accepted the job at Walmart, he believed it was full-time. (C.R. Item No. 14,
10/12/16 N.T. at 1-2.) Claimant testified that it was not until the initial training
period that he was informed the job would be part-time for a period of time until he
satisfied requirements. (C.R. Item No. 14, 10/12/16 N.T. at 2.) Claimant also
testified that “[i]t was just assumed on my part, and I believe on theirs that it was
full-time with a probation.” (C.R. Item No. 14, 10/12/16 N.T. at 2.)


             After the hearing, the Board issued a decision and order reversing the
referee’s decision and finding Claimant ineligible for benefits under section 402(b)
of the Law. The Board found that Claimant voluntarily terminated his full-time
employment with Employer to begin part-time employment with Walmart. (F.F.


                                         2
Nos. 1 & 3, Board’s decision at 2.) Although Claimant asserted that the offer from
Walmart was for full-time employment and only later did he learn that it was part-
time, the Board did not find Claimant credible, noting that Claimant also admitted
that he assumed the employment with Walmart was full-time. (Board’s decision at
2.) Thus, the Board found that Claimant failed to establish that the offer from
Walmart was actually for full-time employment. (Board’s decision at 2.) The
Board further concluded that Claimant’s voluntary termination of full-time
employment to accept part-time employment did not constitute necessitous and
compelling cause to terminate employment, and accordingly, the Board denied
Claimant benefits.


              Claimant now petitions this Court for review of the Board’s order,2
arguing that the Board erred in denying him benefits. Claimant first argues that he
unknowingly accepted a part-time job. He also argues that he quit his job with
Employer because he was offered and accepted a new job, and that this alone
constitutes a “necessitous and compelling reason” precluding the Board and this
Court from considering the new job’s lower pay and part-time status. In other
words, Claimant contends that the part-time status of his subsequent job should not
be considered in determining whether he had a necessitous and compelling reason
to quit his full-time job with Employer. Claimant cites Brennan v. Unemployment
Compensation Board of Review, 504 A.2d 432 (Pa. Cmwlth. 1986) and Solar



       2
          Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, and whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. § 704.


                                               3
Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051
(Pa. Cmwlth. 2012) as support for this argument.


              Initially, we note that although Claimant argues that he quit his job
because he believed he accepted a full-time job with Walmart, this is contrary to
the Board’s findings. The Board did not find Claimant credible with respect to his
assertion that the offer from Walmart was for full-time employment and only later
did he learn that it was part-time. Rather, the Board relied on Claimant’s own
testimony and found that Claimant merely assumed the job was full-time.3 The
Board is the arbiter of credibility and is free to accept or reject the testimony of any
witness in whole or in part. McCarthy v. Unemployment Compensation Board of
Review, 829 A.2d 1266 (Pa. Cmwlth. 2003). We are bound by those findings.4 See
Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492 (Pa.
Cmwlth. 2000).


              Thus, we must now determine whether Claimant, who voluntarily
terminated his full-time employment in order to work part-time employment, had
necessitous and compelling cause to do so.5 Whether a claimant had necessitous
and compelling cause to terminate his employment is a question of law fully


       3
           Thus, Claimant’s belief also was not well-founded.               Cf. Wright-Swygert v.
Unemployment Compensation Board of Review, 16 A.3d 1204 (Pa. Cmwlth. 2011) (stating that
relevant inquiry surrounding voluntary quit when accepting a voluntary early retirement package
must include whether claimant’s belief that her job is threatened is well-founded).
       4
          Notably, Claimant does not argue that the Board’s findings are not supported by
substantial evidence. Instead, he simply presents his version of the facts.
       5
          It appears this Court has not addressed this question under the specific circumstances
presented here, although we have addressed analogous situations.


                                               4
reviewable by this Court.      Morgan v. Unemployment Compensation Board of
Review, 108 A.3d 181 (Pa. Cmwlth. 2015). The claimant “has the burden of
showing such cause, demonstrating that his conduct was consistent with ordinary
common sense and prudence, being based on real, substantial, and reasonable
factors, not on factors which are imaginary, trifling or whimsical.” Unemployment
Compensation Board of Review v. Pennsylvania Power & Light Company, 351
A.2d 698, 699 (Pa. Cmwlth. 1976). In determining whether a claimant had
necessitous and compelling cause to terminate employment, we must examine the
circumstances surrounding each claimant's departure on an individual basis.
PECO Energy Company v. Unemployment Compensation Board of Review, 682
A.2d 49, 55 (Pa. Cmwlth. 1996).


             As Claimant argues, Brennan does stand for the principle that
acceptance of a firm offer of employment can be necessitous and compelling cause
to terminate employment.6 Additionally, we acknowledge that in Brennan, this
Court stated that “[o]nce the referee determined that a valid offer had been made
and accepted he erred in going further and considering Claimant's reasons for
accepting the other job and in considering the conditions of the employment ….”
Brennan, 504 A.2d at 433. However, Brennan is distinguishable, and Claimant’s
reliance on Brennan is misplaced.




      6
        A firm offer of employment includes terms and conditions of employment, including
wages and hours. Baron v. Unemployment Compensation Board of Review, 384 A.2d 271 (Pa.
Cmwlth. 1978).


                                           5
             In Brennan, the claimant was employed full-time in eastern
Pennsylvania and, after purchasing a home with her husband in western
Pennsylvania, she applied for and was offered part-time employment in western
Pennsylvania.     After terminating her full-time employment but prior to
commencing work with the new employer, the new employer informed her that the
new job was no longer available.        The claimant applied for unemployment
benefits, and the referee denied benefits under section 402(b) of the Law because
the new position paid less and was part-time. The Board summarily affirmed. On
appeal to this Court, we reversed and found the claimant eligible for benefits. We
stated that the claimant had necessitous and compelling reasons for quitting
because “[c]ertainly Claimant could not perform the two jobs at two ends of the
state simultaneously.”     Id. at 433.       Significantly, the new employment
unexpectedly became unavailable before the claimant actually started the job.
Thus, the unavailability of the new position was through no fault of the claimant.


             Notably, in cases where the claimant terminated employment and
actually commenced employment elsewhere, this Court has considered the
conditions of that other employment, as well as the claimant’s reasons for
accepting other employment. For example, in Solar Innovations, we held that the
claimant did not have cause of a necessitous and compelling nature to terminate
employment where he quit full-time non-temporary employment to accept a
temporary job. Solar Innovations, 38 A.3d at 1058. We determined that the
claimant’s actions were imprudent and that the ultimate unavailability of work for
the claimant was the result of his personal choice. We also stated that the offer and
acceptance of known temporary work was different from situations such as


                                         6
Brennan, where the work becomes unexpectedly available. Moreover, contrary to
Claimant’s assertion, our holding in Solar Innovations was not that the Board
should consider only the reason for the quit. Rather, when we made that statement,
we were simply summarizing the Board’s position, which we rejected under the
circumstances of that case.


             Similarly, in Empire Intimates v. Unemployment Compensation Board
of Review, 655 A.2d 662 (Pa. Cmwlth. 1995), we concluded that a claimant did not
establish cause of a necessitous and compelling nature to terminate her full-time
employment where she was working two available jobs currently and terminated
the full-time job in favor of the part-time job. Again, we distinguished Brennan
because Empire Intimates did not involve a situation where the accepted job
ultimately was unexpectedly unavailable. In deciding the question presented, we
considered—

             whether a claimant voluntarily left job number one with a
             reasonable expectation of maintaining a source of income
             from employment at job number two. Where that
             expectation falls short through no fault of her own, i.e.,
             the job becomes unavailable, the courts have held that the
             claimant had good cause for quitting job number one,
             thus entitling the claimant to benefits.

Empire Intimates, 655 A.2d at 664.            However, we stated that under the
circumstances, where the claimant was working two available jobs and chose one
over the other, “her assessment of the benefits and disadvantages of each job is still
relevant,” as there was “no unknown external factor suddenly limiting her source
of income.” Id. at 664-65. We concluded that the claimant’s reduction in income
was derived solely from a personal decision to accept an alternatively available
                                          7
job, which was not necessitous and compelling cause. In other words, because it
was a personal choice, she was not unemployed through no fault of her own, and
therefore, was not eligible for benefits.


             We are mindful that “[t]he legislature has declared that unemployment
reserves are ‘to be used for the benefit of persons unemployed through no fault of
their own.’” Id. at 665 (quoting Section 3 of the Law, Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2897, 43 P.S. § 752.) Thus, where one leaves
employment for other employment that is available and yet the claimant still seeks
benefits, we must necessarily examine the reasons for accepting the other job and
consider the conditions of that other employment to determine if the claimant is
unemployed through no fault of his or her own.


             Here, Claimant accepted a part-time position by choice and
commenced that employment. There was no external factor that subsequently
unexpectedly limited Claimant’s source of income. Moreover, quitting a full-time
job in exchange for a part-time job that Claimant assumed was full-time is not
consistent with common sense and prudence. Cf. Solar Innovations (concluding
that the claimant’s actions were imprudent where he quit his regular, non-
temporary job in exchange for a temporary job of fixed duration). Claimant simply
is not “unemployed” through no fault of his own. Thus, Claimant did not satisfy
his burden to establish that he had cause of a necessitous and compelling nature to
voluntarily terminate his employment with Employer.




                                            8
            Accordingly, we affirm the Board’s order finding Claimant ineligible
for benefits under section 402(b) of the Law.



                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                         9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Ackley,                   :
                   Petitioner     :
                                  :
            v.                    : No. 1885 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER


            AND NOW, this 13th day of July, 2017, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby affirmed.




                                  __________________________________
                                  JULIA K. HEARTHWAY, Judge
