           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph O. Cuddy,                              :
                            Petitioner        :
                                              :
              v.                              :   No. 2355 C.D. 2014
                                              :   Submitted: July 17, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: September 3, 2015

              Joseph O. Cuddy (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) that held him ineligible
for unemployment compensation (UC) benefits under Section 402(b) of the Law
(Law)1 on the basis he voluntarily quit his employment. Claimant contends the
Board’s critical findings are inconsistent and fail to support the Board’s legal
conclusion. Claimant also asserts the Board erred in concluding he voluntarily quit
his employment with All American Pest Control (Employer) where he never
verbalized an intention to quit and only left Employer’s premises after Employer’s
owner, Richard Nauss (Owner), directed him to do so. For the reasons that follow,
we affirm.

       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 “[a]n employe shall be ineligible for compensation
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).
                                    I. Background
                Claimant worked for Employer as a service technician from March
2012 until his last day of work on December 23, 2013. His final rate of pay was
$10 per hour plus 10 percent commission.


                Employer provided Claimant with complete uniforms to wear at work.
In October 2013, Employer informed Claimant that he must wear his entire
uniform, including his belt. However, Employer does allow employees to wear a
sweatshirt underneath their uniforms.


                On Claimant’s last day of work, Employer’s office staff informed
Owner that Claimant was not in uniform. Owner informed Claimant he must put
on his uniform jacket with Employer’s name on it.           Claimant became upset
because of his conversation with Employer’s office staff.


                Claimant left, put gas in his truck and returned to Employer’s
premises to load the truck. He was not wearing his uniform jacket. Owner
informed Claimant that he was still not in uniform. Claimant became angry and
handed Owner his truck keys and company cell phone.


                Owner then advised Claimant that he did not want to do that and told
him that he should just let it go. Claimant then threw the keys and cell phone on a
table. After further discussion, Owner, using an expletive, told Claimant to get off
the property.




                                           2
                Thereafter, Claimant applied for UC benefits. The local service center
issued a notice of determination denying Claimant benefits under Section 402(b).
In so doing, the service center noted Claimant initiated the separation and did not
show a necessitous and compelling reason for quitting his employment. Claimant
appealed.


                Both parties appeared at a referee’s hearing at which both Claimant,
accompanied by a certified intern representative (Claimant’s Representative), and
Employer, presented testimony.          Following the hearing, the referee issued an
opinion and order affirming the service center’s denial of UC benefits under
Section 402(b) of the Law. In explaining his decision, the referee observed that
Claimant initiated the separation when he voluntarily turned in his cell phone and
keys.       This set in motion the sequence of events that ended with Owner’s
expletive-laced instructions to get off the property. See Referee’s Op., 3/6/14, at 2-
3.


                Next, Claimant filed an appeal with the Board four days beyond the
expiration of the 15-day appeal period.             At Claimant’s request, the Board
remanded to the referee to take further evidence concerning the timeliness of
Claimant’s appeal. Ultimately, the Board deemed Claimant’s appeal timely filed
under the circumstances2 and addressed the merits. See Bd. Op., 9/4/14, at 2-3.



        2
         During the 15-day appeal period, Claimant’s Representative’s mother became critically
ill and needed emergency surgery, which required Claimant’s Representative to return to his
hometown on the morning he intended to file Claimant’s appeal, which was the day before
appeal period expired. See Bd. Op., 9/4/14, Findings of Fact Nos. 14-24.



                                              3
             With respect to the merits, the Board found that on Claimant’s last
day of employment, Employer’s staff member Joni Leese (Employee Leese)
informed Claimant, who was wearing a hooded sweatshirt rather than his uniform
jacket, that he was out of uniform. F.F. No. 5; Referee’s Hr’g, Notes of Testimony
(N.T.), 2/25/14, at 24-25. Shortly thereafter, Owner also told Claimant he must put
on his uniform jacket. F.F. No. 6; N.T. at 17. Claimant became upset as a result of
his conversations with Employer’s staff about wearing his entire uniform,
including the jacket. F.F. No. 7; N.T. at 23-24.


             Claimant left Employer’s premises and put gas in the truck. When
Claimant returned to a house on property shared by Employer’s premises, he was
still wearing the sweatshirt rather than his uniform jacket. F.F. No. 8; N.T. at 17-
18. Owner again advised Claimant that he was not in uniform. F.F. No. 9; N.T. at
18. Claimant then handed his keys and cell phone to Owner. F.F. No. 10; N.T. at
13. Owner then asked Claimant not to do that. Justin Wright, the homeowner and
a friend of both parties, also asked Claimant not to do that, to just drop it and move
on. F.F. No. 11; N.T. at 13; 20-21.


             Claimant, however, threw the keys and cell phone on the table. F.F.
No. 12; N.T. at 18, 20-21. Employer picked up the keys and walked out of the
house. N.T. at 18. Claimant followed Owner outside and told him he was the best
dressed man there. Id. At that point, Owner told Claimant to “get the fuck off my
property.” F.F. No. 13; N.T. at 18.




                                          4
                In finding Claimant ineligible for benefits under Section 402(b), the
Board reasoned (with emphasis added):

                Based on the record before the Board, the Board
                concludes that [Claimant] has failed to establish a
                necessitous and compelling reason to quit his
                employment. [Employer] is credible that [Claimant] was
                being instructed that he was not dressed properly.
                During that conversation, [Claimant] handed [Employer]
                his keys and cellphone. When [Employer] said he should
                just put it behind him [Claimant] threw the cell phone
                and keys on the table.          This credible testimony
                established that [Claimant] quit. Being unhappy because
                he was being instructed that he was not dressed properly
                fails to establish a necessitous and compelling reason to
                quit. Accordingly, Claimant is ineligible for benefits
                under Section 402(b) of the Law.

Bd. Op. at 3.


                Having deemed Claimant ineligible under Section 402(b), the Board
affirmed the referee’s decision and denied benefits. Claimant’s Representative
requested reconsideration, which the Board granted. The Board then vacated its
decision and permitted Claimant’s Representative to obtain a copy of the transcript
and file a brief. Following a review of Claimant’s brief, the Board issued a
December 2014 order reinstating its September 2014 decision and order. Claimant
petitions for review.3

      3
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Wise v. Unemployment Comp. Bd. of Review, 111 A.3d
1256 (Pa. Cmwlth. 2015). Substantial evidence is evidence which a reasonable mind would
accept as adequate to support a conclusion. Procyson v. Unemployment Comp. Bd. of Review, 4
A.3d 1124 (Pa. Cmwlth. 2010).



                                            5
                                  II. Discussion
             Claimant presents two primary issues for our review. First, Claimant
contends the Board’s Findings of Fact Nos. 10 and 12 are inconsistent, directly
contradict each other, and fail to support the Board’s conclusion.         Second,
Claimant asserts the Board erred in determining he voluntarily quit where he never
verbalized an intention to quit and only left Employer’s premises after Employer
directed him to do so.


                   A. Claimant’s Burden to Prove Discharge
             It is the claimant’s burden to prove his separation from employment
was a discharge. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40
A.3d 217 (Pa. Cmwlth. 2012). Whether a claimant’s separation from employment
constitutes a voluntary quit is a question of law subject to our plenary review.
Wise v. Unemployment Comp. Bd. of Review, 111 A.3d 1256 (Pa. Cmwlth. 2015).
In making this determination, we look at the totality of the circumstances
surrounding the separation. Id. A voluntary termination requires a finding that the
claimant had a conscious intention to leave employment. Id.


                            B. Inconsistent Findings
             Claimant first contends Finding of Fact No. 10, which indicates he
peacefully offered Employer his keys and cell phone out of confusion as to what
Employer wanted, is inconsistent with Finding of Fact No 12, which indicates
Claimant violently threw his keys and cell phone on the table and walked out.
Claimant asserts this Court may not choose between contradictory findings.
Rather, if the Court deems the Board’s findings inconsistent, a remand is required



                                        6
for further explanation. See Fisher v. Unemployment Comp. Bd. of Review, 696
A.2d 895 (Pa. Cmwlth. 1997) (it is beyond Commonwealth Court’s scope of
review to choose between contradictory findings of fact); Radio Corp. of Am. v.
Unemployment Comp. Bd. of Review, 257 A.2d 65 (Pa. Super. 1969) (where the
Board’s findings are inconsistent with each other and the conclusions of law, a
remand for further proceedings is required).


            Here, Claimant essentially argues Finding of Fact No. 10 could be
construed as indicating Claimant thought Employer fired him, and he responded by
calmly surrendering the keys and cell phone. On the other hand, Finding of Fact
No. 12, which indicates Claimant angrily threw the keys and phone on the table
after being asked to put the confrontation behind him, establishes Claimant
voluntarily quit. Because these two findings cannot be reconciled, Claimant urges
that we remand this matter to the Board for further explanation.


            Discerning no inconsistency in the findings, we disagree. In UC
cases, the Board is the ultimate fact-finder and is empowered to resolve all issues
of witness credibility, conflicting evidence and evidentiary weight.     Ductmate
Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth.
2008). Also, it is irrelevant whether the record includes evidence that would
support findings other than those made by the Board; the proper inquiry is whether
the evidence supports the findings actually made. Id. Further, the party prevailing
below is entitled to the benefit of all reasonable inferences drawn from the
evidence. Id.




                                         7
            The Board found credible testimony that when Owner informed
Claimant he was still not in uniform, Claimant handed Owner the keys and phone.
F.F. Nos. 9-10; N.T. at 20-21. At that point, Owner asked Claimant to reconsider
his decision and let the incident go. Claimant then threw the keys and phone on
the table. F.F. Nos. 11-12; N.T. at 20-21. Specifically, Owner testified:

            Okay. That’s when he – when we started talking about
            his appearance. He hands me his cell phone and keys. I
            ask him you don’t want to do that. Justin Wright also
            said Joe you really don’t want to do this. Then we ….

                                       ****

            Then we went back and forth saying you don’t want to do
            this. Well he asked me what do you want. I said Joe
            let’s drop it, let’s go on. So then he started getting a little
            more irate and that’s when he threw the keys and the cell
            phone on the table.

                                       ****

            In the house. That’s when I picked them up and kept
            them and walked out of the house.

                                       ****

            That’s when he came out of the house and kept on
            badgering me – not me badgering him. I had no reason
            to. And that’s when I told him to get the fuck off my
            property and that’s when he turned to [Justin Wright] and
            says can I use your cell phone to call my wife for a ride.

N.T. at 20-21.


            Given the Board’s credibility determinations, and viewing Owner’s
testimony in a light most favorable to Employer as the prevailing party, we discern


                                          8
no inconsistency in the Board’s findings. After Claimant initially handed Owner
the keys and phone, Owner asked Claimant to reconsider his decision and to just
let the incident go. F.F. No. 11. Claimant, however, became more irate and threw
the keys and phone on the table. F.F. No. 12. Although these findings do not
specify whether Claimant lost and then regained possession of the keys and phone
after initially handing them to Owner, we believe a reasonable inference may be
drawn from Owner’s testimony that Claimant initially offered Owner the keys and
phone, but remained in possession of them until he threw them on the table.4
Ductmate. Therefore, we see no need for a remand on that issue.


                            C. Conscious Intention to Quit
              Claimant also contends the Board erred in determining he voluntarily
quit where he intended to continue his employment and never verbalized an
intention to quit. Further, Claimant asserts he only left Employer’s premises after
Owner directed him to do so. In short, Claimant asserts he had no conscious
intention to leave his employment. Therefore, the Board erred in determining he
voluntarily quit. See Roberts v. Unemployment Comp. Bd. of Review, 432 A.2d
646 (Pa. Cmwlth. 1981) (absent a conscious intention by a claimant to leave his
employment, a finding of a voluntary quit is precluded).


              In particular, Claimant argues the Board erred in determining the act
of transferring possession of his work keys and cell phone shows an affirmative
intention to quit.     Rather, Claimant asserts the totality of the circumstances

       4
        Before the referee, Claimant testified: “Well I held my keys and phone out and I said
do you want these.” Notes of Testimony, 2/25/14, at 9.



                                             9
establish that Claimant intended to continue his employment, but Employer fired
him.


             To that end, Claimant argues his case is analogous to Procyson v.
Unemployment Compensation Board of Review, 4 A.3d 1124 (Pa. Cmwlth. 2010).
In Procyson, the claimant worked for her employer as a pharmacy technician until
she sustained non-work injuries. The claimant missed five weeks of work and then
returned to work part-time usually for 10-13 hours per week. On a Friday, after
receiving clearance to return to work full-time, the claimant requested a full-time
work schedule. However, the claimant’s supervisor told her that she would have to
check with the pharmacist and the employer’s president. The supervisor also told
the claimant that the pharmacist told her that the claimant’s brother, working as the
claimant’s temporary replacement, did a better job.


             The claimant then became very upset, gathered her things, called the
pharmacist “two-faced,” and left. Procyson, 4 A.3d at 1126. The pharmacist
followed the claimant through the building and out into the parking lot, telling the
claimant “don’t leave like this.” Id.


             When the claimant reported for her next scheduled shift, the
employer’s president told her she was fired and that she should never come back.
The claimant applied for UC benefits, which the referee and the Board denied
under Section 402(b) on the basis that the claimant voluntarily quit without a
necessitous and compelling cause.




                                         10
             On appeal, this Court reversed, noting that the totality of the
circumstances did not support the Board’s conclusion that the claimant voluntarily
quit. Although the claimant left work without completing her shift, she never said
“I quit.” Procyson, 4 A.3d at 1129. “[S]uch conduct, does not, in itself, manifest a
conscious intention to quit.” Id. Further the claimant left on a Friday and returned
for her next shift on Tuesday. We reasoned that “[b]y reporting to work at her next
shift, [the claimant] acted to preserve the employment relationship.” Id.


             Here, Claimant asserts he similarly had no conscious intention to quit
his employment. Although Claimant left work without permission after a heated
exchange, such action, in and of itself, did not manifest a conscious intention to
quit. Procyson. To that end, Claimant never verbally stated that he quit. Id.
Likewise, Claimant contends here that his act of transferring the keys and cell
phone did not establish a conscious intention to quit his employment.


             Claimant also asserts his situation is similar to that in Roberts, where
the claimant, a licensed practical nurse on vacation, received a registered letter
from his supervisor containing correspondence on a pink piece of paper. The
letter, titled “Official Reprimand Form,” summarized past disciplinary action
against the claimant and concluded by stating: “you will never function at Kane
Hospital under the job description of a Licensed L.P.N. …” Roberts, 432 A.2d at
647. Believing he was terminated, the claimant did not return to work after
vacation. The Board determined the employer had only reprimanded the claimant,
and that he voluntarily quit by not returning to work.




                                         11
             In reversing, this Court determined the claimant reasonably believed
that the “pink notice,” which included the language “you will no longer function
… under the job description of a Licensed L.P.N.” supported the claimant’s
reasonable belief that his employer fired him. Id. As such, we determined the
claimant lacked the conscious intention to leave his employment. Id.


             In light of Procyson and Roberts, Claimant contends Employer’s
hostile conversation in the present case regarding his uniform, which evolved into
an argument, and ended with Owner telling Claimant to get off his property, gave
Claimant no real choice but to leave the premises. Consequently, Claimant asserts
the record does not support a determination that he had a conscious intention to
voluntarily quit his employment.


             We disagree.    Here, the totality of the circumstances surrounding
Claimant’s separation from employment support the Board’s determination that
Claimant’s conduct exhibited a conscious intention to leave his employment. “A
voluntary termination is not limited to a formal or even an express resignation; it
can be inferred from the employee’s conduct.” Wise, 111 A.3d at 1263. An
employee who leaves his employment without notifying the employer when or if
he is planning to return, may be found to have voluntarily quit. Id.


             In the present case, unlike the situation in either Procyson or Roberts,
when Claimant initially offered the keys and cell phone to Owner, Owner
responded by asking Claimant to reconsider his decision and to let the incident go.
F.F. No. 11; N.T. at 20-21. In particular, when Claimant asked Owner, “what do



                                         12
you want,” Owner replied: “Joe let’s drop it, let’s go on.” N.T. at 21. Claimant,
however, “started getting a little more irate and that’s when he threw the keys and
cell phone on the table.” Id. As such, we reject Claimant’s contention that
Employer gave Claimant no real choice but to quit.


            Further, the Board could infer from such conduct that Claimant
evidenced a conscious intention to terminate his employment.            See Wise
(claimant’s failure to respond as promised to a justified demotion, despite the
employer’s repeated requests for her response in order to prepare the next work
schedule, exhibited a conscious intention to leave her employment).


            Therefore, we discern no error in the Board’s determination that
Claimant voluntarily quit his employment. Although Claimant may have become
upset with Employer’s insistence that he wear his complete uniform at all times,
this did not provide him with necessitous and compelling cause to voluntarily
terminate employment. See Tom Tobin Wholesale v. Unemployment Comp. Bd.
of Review, 600 A.2d 680, 683 (Pa. Cmwlth. 1991) (“mere dissatisfaction with the
employer’s policies or procedures alone is not cause of a necessitous and
compelling nature to voluntarily terminate employment”); Ann Kearney Astolfi
DMD PC v. Unemployment Comp. Bd. of Review, 995 A.2d 1286 (Pa. Cmwlth.
2010) (the claimant’s resentment of the employer’s policies and her personality
conflicts with coworkers did not constitute a necessitous and compelling cause for
an employee to voluntarily terminate employment).




                                        13
                                 III. Conclusion
            Despite Employer’s requests that Claimant not leave his employment
over the uniform incident, Claimant threw down his keys and cell phone. Given
the totality of the circumstances, the Board could infer from Claimant’s conduct
(intemperate return of Employer’s property) that he had a conscious intention to
terminate his employment. Wise. Moreover, Claimant’s refusal of Employer’s
request to simply let the incident go indicates Claimant failed to make a reasonable
attempt to preserve his employment. Solar Innovations, Inc. v. Unemployment
Comp. Bd. of Review, 38 A.3d 1051 (Pa. Cmwlth. 2012). Therefore, we see no
error in the Board’s determination that Claimant voluntarily terminated his
employment without a necessitous and compelling cause. Accordingly, we affirm
the Board’s denial of benefits under Section 402(b) of the Law.




                                      ROBERT SIMPSON, Judge




                                        14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph O. Cuddy,                      :
                       Petitioner     :
                                      :
           v.                         :   No. 2355 C.D. 2014
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER

           AND NOW, this 3rd day of September, 2015, for the reasons stated in
the foregoing opinion, the order of the Unemployment Compensation Board of
Review is AFFIRMED.




                                     ROBERT SIMPSON, Judge
