           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lisa J. Cleary,                               :
                             Petitioner       :
                                              :
                v.                            :   No. 795 C.D. 2016
                                              :   Submitted: November 18, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: May 17, 2017

                Lisa J. Cleary (Claimant) petitions for review of the order of the
Unemployment Compensation Board of Review (Board) that reversed the decision
of a referee and denied her unemployment compensation (UC) benefits. The
Board found Claimant ineligible for UC benefits pursuant to 402(b) of the
Unemployment Compensation Law (Law)1 (voluntary quit) because she did not
demonstrate through competent evidence a firm offer of employment at the time
she voluntarily quit her job with Bloomsburg Carpet Industries, Inc. (Employer).
Claimant contends the Board erred in reaching this determination. Upon review,
we affirm.




       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
                                  I. Background
                              A. Current Proceedings
             Claimant worked for Employer as a general laborer from May 2005
until December 24, 2015. From December 25, 2015 through January 4, 2016,
Employer was closed. On January 4, 2016, Claimant telephoned Employer and
quit, effective immediately. She did not provide Employer with a reason for
quitting.


             On January 7, 2016, Claimant applied for benefits.          Based on
information from Claimant explaining her reason for leaving work and
documented in the Internet Initial Claim, Reproduced Record (R.R.) at 19a-23a,
the local service center granted benefits. Employer appealed, and a referee held a
hearing.


             Claimant did not appear at the referee’s hearing.         Tracy Hess,
Employer’s Human Relations Manager (HR Manager), appeared and testified on
behalf of Employer. At the beginning of the hearing, the referee identified the file
documents, including the Internet Initial Claim (Ex. 8), the Claim Record (Ex. 10),
and the Certification of Documents (Ex. 1). All the file documents were received
without objection. Referee’s Telephone Hr’g, Notes of Testimony (N.T.), 2/19/16,
at 3; R.R. at 58a.


             When asked at the hearing why Claimant left her job with Employer,
HR Manager stated: “She just called and said that she would not be in on January
4th, that morning, that she was resigning. We had heard rumors that she had
another job but we were not positive of that.” Id. at 4.


                                          2
            The referee determined Claimant was not ineligible for UC benefits
under Section 402(b) of the Law beginning with the waiting week ending January
9, 2016. The referee found that Claimant’s last day of work for Employer was
December 24, 2015. From December 25, 2015 to January 4, 2016, Employer was
closed. Employer did not have work available for Claimant between those dates.
On January 4, 2016, Claimant called Employer and quit. Claimant did not give
Employer a reason for quitting. Referencing the Claim Record (Ex. 10), the
referee found that Claimant quit in order to accept other full-time employment and
had a bona fide offer of other employment. Referee’s Dec., 2/19/16, Findings of
Fact (F.F.) Nos. 2-8. Ultimately, the referee determined Claimant had a bona fide
offer of employment, which she began on January 4, 2016, and, therefore, she was
not ineligible for UC benefits under Section 402(b). Referee’s Dec. at 2. The
referee advised Employer to file a Request for Relief from Charges. Id.


            Employer appealed to the Board. The Board found that Claimant was
last employed by Employer, from May 23, 2005, and her last day of work was
December 24, 2015. Employer was closed from December 25, 2015 until January
4, 2016. On January 4, 2016, Claimant called Employer and quit her employment,
effective immediately. Bd. Op., 4/19/16, F.F. Nos. 1-3.


            Ultimately, the Board determined that Claimant voluntarily left her
employment; therefore, she bore the burden of showing necessitous and
compelling cause for so doing.     Bd. Op. at 1.    The Board found the record
contained circumstantial evidence indicating Claimant quit her employment with
Employer to accept a job with new employer. Id. at 1-2. However, the Board



                                        3
found the record devoid of competent evidence of a firm offer of employment by
the new employer to Claimant. Id. at 2. Thus, the Board concluded Claimant was
ineligible for benefits under Section 402(b) of the Law.2 Claimant requested
reconsideration of the Board’s order, which the Board denied. Claimant now
petitions for review of the Board’s order denying her benefits.


                                B. Companion Proceedings
               In order to understand Claimant’s arguments in the present appeal, it
is necessary to explain Claimant’s claim for UC benefits from her subsequent
employer. When Claimant quit her job with Employer, she apparently did so to
begin working for a law firm on January 4, 2016. Claimant worked for the new
employer from January 4, 2016 through January 7, 2016. The new employer and
Claimant agreed that she was not a good fit for the job. Claimant filed for UC
benefits, and the Board determined that Section 402(e) (relating to willful
misconduct) did not disqualify Claimant from receiving UC benefits as a result of
her subsequent employment (companion UC case).


               In the present case, this Court denied the Board’s motion to strike
from Claimant’s brief and reproduced record the Board’s decision granting
benefits in the companion UC case and authorized review of the Board’s decision
here “to whatever extent the panel deems it appropriate.” Cmwlth. Ct. Order,
9/28/16.

       2
         The Board noted its decision of ineligibility followed two prior decisions of eligibility.
The Board found that a resulting overpayment was not the result of a misrepresentation or non-
disclosure of a material fact. Therefore, it determined any resulting overpayment was non-
recoupable under Section 804(b)(1)(iii)(A) of the Unemployment Compensation Law, 43 P.S.
§874(b)(1)(iii)(A).



                                                4
                                        II. Issues
              On appeal,3 Claimant contends the Board erred in denying her UC
benefits. She asserts the necessitous and compelling reason for leaving her job
with Employer was demonstrated by the testimony contained in her companion UC
case. Pet’r’s Br. at 10.


                                     III. Discussion
              In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in evidence, witness credibility and weight accorded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008).


              Substantial evidence is such relevant evidence upon which a
reasonable mind could base a conclusion. Umedman v. Unemployment Comp. Bd.
of Review, 52 A.3d 558 (Pa. Cmwlth. 2012). “The fact that [a party] … might
view the testimony differently than the Board is not grounds for reversal if
substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment
Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).


              Under Section 402(b) of the Law, an employee is ineligible for UC
benefits for any week in which her unemployment is due to voluntarily leaving her
employment without cause of a necessitous and compelling nature.                  43 P.S.


       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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).



                                            5
§802(b); Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23 (Pa. Cmwlth.
2007). A claimant who voluntarily quits her employment bears the burden of
proving her termination was caused by reasons of a necessitous and compelling
nature. Solar Innovations, Inc. v. Unemployment Comp. Bd. of Review, 38 A.3d
1051 (Pa. Cmwlth. 2012). The question of whether an employee had necessitous
and compelling reason to quit is a question of law reviewable by this Court,
Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of
Review, 906 A.2d 657 (Pa. Cmwlth. 2006), and the answer is determined from the
totality of the record. Bell.


             The receipt and acceptance of a firm offer of other employment
constitutes termination for cause of a necessitous and compelling nature. Solar
Innovations. A firm offer of employment is one that specifies the conditions of
employment, such as wages, hours, duties and a starting date.            Baron v.
Unemployment Comp. Bd. of Review, 384 A.2d 271 (Pa. Cmwlth. 1978). In order
to be a firm offer, the offer of employment must be definite, and the claimant must
act prudently with regard to her employer.           Twp. of N. Huntingdon v.
Unemployment Comp. Bd. of Review, 450 A.2d 768 (Pa. Cmwlth. 1982).


             Claimant argues she voluntarily quit because of a firm job offer with
the new employer.       Claimant concedes the record in the current case lacks
competent evidence of a firm offer of employment. Br. of Pet’r at 8-9. However,
the evidence in the companion case establishes a firm offer of employment, and the
decision in that case should be given effect here.




                                          6
             The Board argues that using findings of fact from a different case
involving the Claimant would violate this Employer’s rights to due process. That
is because Employer here was not given notice of or an opportunity to be heard in
the companion matter, which involved Claimant’s subsequent employer only.
Similarly, the Board argues that the determination in the companion case does not
have preclusive effect under legal theories of law of the case and res judicata
because both theories require that the parties be the same in both proceedings.


             We reject Claimant’s attempts to incorporate the entire record in the
companion UC case into this case to cure any deficiencies in the record in this
appeal. Because Claimant failed to appear at the referee hearing here, she offered
no evidence, including the record in her companion UC case, in support of her
claim for benefits. The law is well-settled that matters not appearing in the record
may not be considered by the appellate court on appeal. B.K. v. Dep’t of Pub.
Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (“For purposes of appellate review,
that which is not part of the certified record does not exist….’ [I]t is the
responsibility of the appellant to supply this Court with a complete record for
purposes of review. The failure by an appellant to insure that the original record
certified for appeal contains sufficient information to conduct a proper review
constitutes waiver of the issue(s) sought to be examined.’”) (citation omitted);
DeLong v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1966 C.D.
2012, filed May 23, 2014) (Covey, J.), 2014 WL 2160735 (unreported).


             Moreover, Employer was not a party to Claimant’s companion UC
case. It did not receive notice of the companion UC proceeding and, therefore, it



                                         7
had no opportunity to be heard on the facts of that case and challenge the basis for
Claimant’s separation from the new employer and how that may impact the current
case. In an administrative hearing, the essential elements of due process are notice
and an opportunity to be heard. Grouch v. Unemployment Comp. Bd. of Review,
472 A.2d 286 (Pa. Cmwlth. 1984). Employer lacked notice, lacked an opportunity
to be heard, and had no reason to know the facts surrounding Claimant’s discharge
from her subsequent employer. Therefore, it would be unfair to Employer to
permit consideration of the facts in Claimant’s companion case.


             In addition, res judicata does not apply to this appeal. Among other
elements, identity of parties is required for the application of res judicata. Sariano
v. Unemployment Comp. Bd. of Review, 487 A.2d 1064 (Pa. Cmwlth. 1985).
There is no identity of parties between the current appeal and the companion case,
because the employers are different.


             Further, the law of the case doctrine does not aid Claimant’s cause
here. Under that doctrine, issues decided by an appellate court on a prior appeal
between the same parties become the law of the case and will not be reconsidered
on a second appeal. Commonwealth v. Tick, Inc., 246 A.2d 424 (Pa. 1968). Here,
however, the parties are not the same, as discussed above.


             For all these reasons, we affirm.




                                       ROBERT SIMPSON, Judge


                                          8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lisa J. Cleary,                      :
                      Petitioner     :
                                     :
             v.                      :   No. 795 C.D. 2016
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :

                                   ORDER

             AND NOW, this 17th day of May, 2017, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    ROBERT SIMPSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Lisa J. Cleary,                           :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Unemployment Compensation                 :
Board of Review,                          :   No. 795 C.D. 2016
                 Respondent               :   Submitted: November 18, 2016



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                             FILED: May 17, 2017


             As I believe Lisa J. Cleary (Claimant) satisfied all that was required of
her in proving that her reasons for leaving employment were “necessitous and
compelling,” i.e., that she had a firm offer of employment, I must dissent.
Although Claimant did not appear before the referee, the record of her claim and
the reasons for her leaving Bloomsburg Carpet Industries, Inc. (Employer) were
provided to Employer before the referee’s hearing. (Reproduced Record (R.R.) at
20a-23a.) This included recognition that her subsequent employment ended rather
quickly and for reasons which would likely not preclude a second claim. Id. at
22a. As such, there was no lack of notice to Employer of the circumstances
surrounding Claimant’s position and thus no due process violation.
            Given the relaxed atmosphere which is supposed to mark the
proceedings below, the evidentiary requirements imposed on Claimant were met.
As the referee was correct in finding for Claimant, I would reverse the Board’s
contrary decision.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge




                                    JMC-2
