           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshannock Township,                    :
                         Petitioner     :
                                        :
            v.                          :   No. 2026 C.D. 2016
                                        :   Submitted: May 26, 2017
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :

BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: July 31, 2017


            Petitioner Neshannock Township, Lawrence County, Pennsylvania
(Employer), petitions for review of the order of the Unemployment Compensation
Board of Review (Board), affirming the decision of a Referee, which granted Tina
Root (Claimant) unemployment compensation benefits. For the reasons set forth
below, we affirm.
            Claimant worked as a part-time employee at Employer’s skating rink.
Claimant applied for unemployment compensation benefits after Employer
instructed her to “stop in and turn in [her] keys.” (Certified Record (C.R.), Item
No. 8 at 6, Claimant’s Ex. 1.) The Indiana Unemployment Compensation Service
Center (Service Center) issued a determination finding Claimant ineligible for
benefits pursuant to Section 402(b) of the Unemployment Compensation Law
(Law),1 relating to voluntary termination without cause of a necessitous and
compelling nature. Claimant appealed the Service Center’s determination, and a
Referee conducted an evidentiary hearing.
                 Following the hearing, the Referee issued a decision in which she
made the following findings:
                 1.    The claimant was employed by Neshannock Twp.
                       as a full-time management coordinator earning
                       $12.38 per hour from December 20, 2010 through
                       the end of December 201 [sic].
                 2.    As of January 1, 2016, the claimant was a
                       part-time ice rink employee averaging 8 hours per
                       week at $7.75 per hour until April 26, 2016, her
                       last day of work.
                 3.    In January 2015, the claimant was advised that her
                       management coordinator position would be ending
                       at the end of December 2015, as they were
                       replacing the two part-time coordinators with a
                       full-time director.
                 4.    The claimant began attending nursing school in
                       March 2015 in preparation for the loss of her job.
                 5.    When       the    claimant’s    job    ended       in
                       December 2015, she was offered continuing
                       employment as a part-time ice rink employee
                       running the Zamboni machine approximately 8
                       hours per week.
                 6.    The claimant accepted the part-time position at
                       [sic] advised the employer that once she had taken
                       her board exams and received her nursing license,
                       she would be quitting as she already had an offer
                       of work as a nurse.

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).



                                               2
7.    The claimant did not provide employer with an
      exact date when her employment would end but
      rather advised them that it was contingent on her
      passing her board exams.
8.    The claimant, at one point, advised the employer
      that she would work through March 2016.
9.    The claimant then advised the employer that it was
      taking longer than expected to be scheduled for the
      board exam, and she could continue working
      through April 15, 2016.
10.   When mid-April arrived, the claimant again
      notified the employer that she had not yet taken
      her boards, and that she was able to continue
      working in her part-time position.
11.   The employer continued to schedule the claimant
      through April 26, 2016.
12.   On May 1, 2016, the claimant reviewed the May
      work schedule for the part-time rink employees
      and found she was not scheduled in May.
13.   The claimant sent a text message to the ice rink
      manager advising that she still had not taken her
      boards yet and she was able to continue working
      on Mondays, Wednesdays, and Fridays.
14.   The manager responded that due to the limited
      hours of the rink, we will not need you to work.
15.   The text message also advised the claimant to stop
      in and turn in her keys.
16.   The claimant turned in her keys as requested. The
      claimant’s employment ended April 26, 2016, as
      the employer did not schedule the claimant for any
      further shifts.
17.   The claimant was able to take her nursing board
      exams on June 16, 2016, and received a job offer
      to begin August 8, 2016, for Jameson Care.
18.   The claimant filed an application for
      unemployment compensation benefits with an
      effective date of January 3, 2016.


                           3
             19.    The claimant filed for and received unemployment
                    compensation benefits for the weeks of
                    May 7, 2016 through June 4, 2016, in the amount
                    of $1,060.
             20. The claimant reported to the UC Service Center
                    that she was laid off from employment after
                    receiving the text message from her manager.
(C.R., Item No. 9.) The Referee reasoned that:
             Here, the claimant had notified the employer of her intent
             to voluntarily terminate employment at some time in the
             future when she passed her board exams and was able to
             begin employment as a nurse. However, the claimant
             had rescinded any specific dates of separation with the
             employer, and each time the claimant modified her
             ending date, the employer allowed her to continue
             working. The employer provided no testimony that they
             took any steps to replace the claimant prior to her request
             to extend her employment.

(Id.) The Referee concluded that, based on her findings of fact, Claimant did not
voluntarily terminate her employment. (Id.) The Referee further concluded that
Employer failed to show that Claimant’s termination resulted from willful
misconduct. (Id.)
             Employer appealed to the Board, which affirmed the Referee’s
decision. (C.R., Item Nos. 10, 11.) The Board adopted and incorporated the
Referee’s findings of fact and conclusions of law in its order. (C.R., Item No. 11.)
Employer petitioned the Board for reconsideration of its order, which the Board
denied. (C.R., Item Nos. 12, 14.) Employer now petitions this Court for review of
the Board’s order.




                                         4
                 On appeal,2 Employer argues that substantial evidence does not
support the Board’s findings that Claimant did not provide a specific resignation
date, Claimant revoked any resignation(s) that she may have made, and Employer
did not take steps to replace Claimant before any revocation(s) occurred.
Employer also contends that the Board erred in analyzing this matter under Section
402(e) of the Law. Instead, Employer appears to contend that the Board should
have considered the matter under Section 402(b) of the Law, relating to voluntary
termination without cause of a compelling and necessitous nature.3
                 Substantial evidence is relevant evidence upon which a reasonable
mind could base a conclusion.              Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986).                     In determining whether
substantial evidence exists to support the Board’s findings, this Court must
examine the testimony in the light most favorable to the prevailing party, giving
that party the benefit of any inferences that can logically and reasonably be drawn
from the evidence. Id. A determination as to whether substantial evidence exists
to support a finding of fact can only be made upon examination of the record as a
whole.       Taylor v. Unemployment Comp. Bd. of Review, 78 A.2d 829, 831
(Pa. 1977). The Board’s findings of fact are conclusive on appeal only so long as
the record, taken as a whole, contains substantial evidence to support those


       2
         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. Substantial evidence is evidence that a reasonable mind might consider adequate to
support a conclusion.
       3
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).



                                               5
findings. Id. The presence of record evidence contrary to the Board’s findings of
fact is immaterial if substantial evidence supports those findings. Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             Employer first argues that substantial evidence does not support the
Board’s finding that Claimant did not provide Employer with a specific
termination date. Claimant testified that her voluntary termination would occur
after she took and passed her nursing boards, rather than on a pre-determined date.
(C.R., Item No. 8 at 7, 9-10.) Employer’s first witness, Mark Bucci (Bucci),
corroborated this claim, testifying that Claimant never provided Employer with
either a specific termination date or notice that Claimant had passed her board
exams and would begin employment elsewhere as a nurse.                (Id. at 23-25.)
Employer’s third witness, Joe Gierlach, testified that Claimant set her schedule
based upon her education and that Employer received no indication as to how long
Claimant would stay on to work. (Id. at 29.) Furthermore, Claimant testified that
she never submitted any type of written or verbal resignation to Employer. (Id.
at 7.) Claimant reached out to Employer as soon as she found out that Employer
did not schedule her to work for the month of May 2016. (Id. at 5.) Claimant
testified that, in a string of text messages, she informed Employer of her
availability to work “Mondays . . . Wednesday[s, and] Friday[s] . . . etc.” (Id. at 5,
Claimant’s Ex. 1.) Employer responded that “[d]ue to the limited hours of the rink,
we will not need you to work. Could you please stop in and turn in your keys?”
(Id. at 6, Claimant’s Ex. 1.) Substantial evidence, therefore, supports the Board’s
finding that Claimant “did not provide the employer with an exact date when her
employment would end.” (C.R., Item No. 9.)




                                          6
              Employer next argues that substantial evidence does not support the
Board’s finding that, if Claimant resigned, she revoked any such resignation.
Employer argues that Claimant’s testimony and phone records establish that
Claimant initially intended to work through the end of March 2016, but she
subsequently requested to be taken off Employer’s work schedule. (C.R., Item
No. 8 at 9-10.) Employer also argues that Claimant voluntarily terminated her
employment when she informed Employer that it could take her off the work
schedule after the “the next two Mondays and Tuesdays” following the end of
“Kids Skate” on April 12, 2016.            (Id.)   The record, however, indicates that
Employer consistently modified Claimant’s schedule to permit her to work until
she had taken and passed her nursing boards. (See id. at 9.) Employer checked
with Claimant every month before making the work schedule and set her work
schedule per her requests. (Id. at 24.) Employer continued to talk to Claimant “to
find out if she could continue to work.” (Id. at 25.) Employer “asked [Claimant] if
[Claimant] wanted to be on the April schedule . . . and [Employer] thought
[Claimant] told [Employer] that [Claimant] could work some in April, maybe to
the middle of April, something like that.” (Id. at 21.) In mid-April, Claimant told
Employer “that she could work the remaining two weeks [of April].” (Id.) The
record indicates that Claimant did, in fact, work “the full month of April,” despite
any conversation about leaving in March or mid-April.4 (Id. at 11.) Substantial
evidence, therefore, supported the Board’s finding that Claimant “rescinded any
specific dates of separation.” (C.R., Item No. 9.)


       4
         From testimony that Claimant actually worked through April, the Board could logically
and reasonably infer that Claimant rescinded any resignation. See Johnson, 502 A.2d at 740.



                                              7
             Employer finally argues that substantial evidence does not support the
Board’s finding that even if Claimant rescinded any specific dates of separation,
Employer did not take steps to replace Claimant in the interim. Employer argues
that it hired a new Zamboni driver to replace Claimant in April. At first glance, the
record testimony appears to indicate that replacing Claimant formed at least part of
the impetus for hiring a new Zamboni driver. (C.R., Item No. 8 at 26.) Bucci,
however, subsequently clarified that Employer hired the new Zamboni driver in
response to a different employee quitting and not because Claimant restricted her
availability to work. (Id. at 26-27.) Bucci further testified that prior to hiring the
new Zamboni driver, Employer anticipated losing a Zamboni driver other than
Claimant. (Id. at 27.) Substantial evidence, therefore, supported the Board’s
finding that, even if Claimant resigned, Employer did not take steps to replace
Claimant before Claimant rescinded her resignation. (C.R., Item No. 9.)
             Employer also argues that Claimant voluntarily quit her employment
such that the Board erred in considering this matter under Section 402(e) of the
Law, relating to termination for willful misconduct. The threshold issue when a
voluntary quit is alleged is whether the facts surrounding the claimant’s separation
from employment indicate a voluntary quit or an involuntary separation. Norman
Aston Klinger and Assocs. v. Unemployment Comp. Bd. of Review,
561 A.2d 841, 842 (Pa. Cmwlth. 1989). This issue is a question of law subject to
this Court’s review. Stankiewicz v. Unemployment Comp. Bd. of Review, 548 A.2d
366, 368 (Pa. Cmwlth. 1988).
             The burden of proving a right to unemployment compensation rests
with the claimant in voluntary quit cases. Walker v. Unemployment Comp. Bd. of
Review, 367 A.2d 366, 369 (Pa. Cmwlth. 1976).             “A finding of voluntary


                                          8
termination is essentially precluded unless the claimant has a conscious intention to
leave his employment.”        Fekos Enters. v. Unemployment Comp. Bd. of
Review, 776 A.2d 1018, 1021 (Pa. Cmwlth. 2001).            A claimant voluntarily
terminates her employment when she resigns, leaves, or quits her employment
without action by the employer. Roberts v. Unemployment Comp. Bd. of Review,
432 A.2d 646, 648 (Pa. Cmwlth. 1981).           The totality of the circumstances
surrounding the incident must be considered in all cases when determining the
intent to quit. Phila. Parent Child Ctr., Inc. v. Unemployment Comp. Bd. of
Review, 403 A.2d 1362, 1363 (Pa. Cmwlth. 1979).
             The Board did not err in determining this matter under Section 402(e)
of the Law.     The threshold issue before the Board was whether Claimant’s
employment was terminated voluntarily or involuntarily.           If Claimant had
terminated her employment voluntarily, the next inquiry would have been whether
Claimant had cause of a compelling and necessitous nature under Section 402(b) of
the Law. The Board, however, relying on the findings of the Referee, properly
determined that Claimant did not voluntarily quit her employment. Specifically,
the Board relied on the findings that, although Claimant informed Employer of her
intent to resign in the future, she had not provided Employer with a specific date at
the time Employer severed the employment relationship.          To the extent that
Claimant may have provided a resignation date, Employer did not take steps to hire
a replacement prior to her rescinding the date. Thus, because the Board concluded
that Claimant had not voluntarily quit, Claimant had no burden to prove cause of a
compelling and necessitous nature. Instead, the relevant inquiry was whether
Claimant’s termination was due to her own willful misconduct under
Section 402(e) of the Law. The burden of proving willful misconduct rested with


                                         9
Employer. The Board determined that Claimant’s termination was not due to
willful misconduct and, therefore, refused to deny her benefits under
Section 402(e) of the Law. The Referee, therefore, did not err in determining
Claimant to be eligible for benefits.
             Accordingly, we affirm the Board’s order.




                                 P. KEVIN BROBSON, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshannock Township,                  :
                       Petitioner     :
                                      :
          v.                          :   No. 2026 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


          AND NOW, this 31st day of July, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                             P. KEVIN BROBSON, Judge
