         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donald J. Wyar,                                  :
                                                 :
                       Petitioner                :
                                                 :
               v.                                : No. 865 C.D. 2015
                                                 : Submitted: December 4, 2015
Unemployment Compensation                        :
Board of Review,                                 :
                                                 :
                       Respondent                :



BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                                FILED: March 18, 2016


               Donald J. Wyar (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) finding him ineligible for
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law)2 because he voluntarily quit his job without a
necessitous and compelling reason. We affirm.


1
 This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Section 402(b) provides, in relevant part, that a claimant “shall be ineligible for compensation for
(Footnote continued on next page…)
              Claimant was employed as a full-time police officer with Portage
Borough (Employer or Borough) beginning December 2006, with his last day of
work of July 29, 2014. (Record (R.) Item 16, Board Decision and Order, Finding
of Fact (F.F.) ¶1.) Claimant filed his claim for unemployment compensation
benefits on August 13, 2014; in response, Employer submitted to the Department
of Labor and Industry a September 18, 2014 letter from Claimant to Employer, in
which Claimant stated that he was resigning his position as a police officer with
Employer effective August 29, 2014.           (R. Item 1, Claim Record; R. Item 4,
Employer Separation Information.)
              On October 17, 2014, the Unemployment Compensation Service
Center (Service Center) issued a notice of determination finding Claimant
ineligible for benefits beginning with the week ending September 20, 2014
pursuant to Section 402(b) of the Law because Claimant voluntarily terminated his
employment with Employer without a necessitous and compelling reason. (R. Item
6, Notice of Determination.) In addition, the Service Center issued two other
notices, which (i) established a fault overpayment of $925 pursuant to Section
804(a) of the Law, 43 P.S. § 874(a); (ii) assessed a penalty equivalent to 15% of
the overpayment of benefits in the amount of $138.75 pursuant to Section 801(c)
of the Law, 43 P.S. § 871(c); and (iii) imposed 5 penalty weeks under Section
801(b) of the Law, 43 P.S. § 871(b). (R. Item 6, Notice of Determination of
Overpayment of Benefit, Notice of Penalty Determination.)




(continued…)
any week...[i]n which his unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.” Id.


                                             2
                 Claimant appealed, and on November 26, 2014, a hearing was held
before the Referee at which Claimant testified that he was suspended without pay
on July 29, 2014 and was informed that he had been terminated on August 26,
2014 by his attorney, Dave Byer. (R. Item 10, Nov. 26, 2014 Hearing Transcript
(H.T.) at 6, 11.) Claimant testified that he confirmed that he had been discharged
in a text message conversation with Edward Miller, the Chief of Police for the
Borough and Claimant’s supervisor, which took place on August 26 and 27, 2014.3
(Id. at 7-8; R. Item 10, Claimant Ex. 1: Text Messages.) However, Claimant stated
that Robert Koban, the Borough Manager, was responsible for discipline,
suspension and termination decisions related to Borough police officers and that he
never received confirmation of his discharge from the Borough Manager, the
Borough Council or anyone else at Employer. (H.T. at 8, 11.) Claimant testified
that he entered into a separation agreement with Employer on or about September
18, 2014, in which he released Employer from any liability related to his
termination claim under the Police Tenure Act4 in exchange for a severance
package; as part of this settlement, he signed the September 18, 2014 letter
indicating that he was resigning his position as a police officer effective August 29,




3
  On August 26, 2014, Claimant texted Chief Miller: “I would have expected to hear I was
terminated by you not the way I found out.” Chief Miller responded on August 27, 2014:
         First i had no idea what u were talkin about and didnt find out til latn last night
         iwas never informed otherwise i would i would have bin 1 to break news [sic]
(R. Item 10, Claimant Ex. 1: Text Messages.)
4
    Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §§ 811–816.


                                                 3
2014.5 (Id. at 8-10; R. Item 4, Separation Information: Sept. 18, 2014 Letter; R.
Item 10, Claimant Ex. 2: Separation Agreement and General Release.)
              Employer presented the testimony of Chief Miller and the Borough
Manager. Chief Miller testified that he ordered Claimant during a July 23, 2014
telephone call to provide a written response to a citizen’s complaint of rude
behavior by Claimant from July 18, 2014, and Claimant refused to do so in
violation of Employer policy. (H.T. at 18-20.) Chief Miller testified that Claimant
did provide a written response to the complaint the next day; however, during a
meeting with Claimant and the Borough Manager on July 29, 2014, Claimant
refused to answer any questions regarding the incident in violation of a direct order
from Chief Miller. (Id. at 20-21, 24-29.) Chief Miller stated that the Borough
Manager then advised Claimant that he was suspended until further notice and
following the meeting Claimant became irate and made repeated threatening
statements that the Pennsylvania State Police should be put on standby because
“it’s happening now” and that a certain resident of the Borough should “watch his
back.” (Id. at 21-22, 29, 31.) Chief Miller stated that Claimant was given a formal
notice of potential disciplinary action or discharge on August 18, 2014 related to
the incident associated with the citizen’s complaint and Claimant’s refusal to
provide a written response to the complaint. (Id. at 17, 31; R. Item 10, Employer
Ex. 3: Notice.) Chief Miller testified that he did have a text message exchange
with Claimant on August 26 and 27, 2014, but that he had no knowledge as of that
date that Claimant had been terminated; Chief Miller stated that he asked the

5
  The separation agreement additionally provided that Claimant did not waive his right to bring
an unemployment compensation claim and that Employer did not waive any objection or defense
to a claim by Claimant for unemployment compensation benefits. (R. Item 10, Claimant Ex. 2:
Separation Agreement and General Release ¶3.)


                                              4
Borough Manager about Claimant’s text message and was informed only that an
attorney for Employer was involved in discussions with Claimant’s attorney, Mr.
Byer. (H.T. at 22, 29-30.)
            The Borough Manager testified that he did not terminate Claimant at
any time following the suspension on July 29, 2014 through Claimant’s resignation
and execution of the separation agreement on September 18, 2014 and that he had
never spoken to Mr. Byer. (Id. at 33, 38.) The Borough Manager testified that
Claimant’s employment was discussed during an executive session at a September
2, 2014 Borough Council meeting and that Claimant was given notice on
September 5, 2014 that a record of the incidents would be placed in his
employment file. (Id. at 33-34.) The Borough Manager further testified that he
had taken out an advertisement in the September 18, 2014 issue of the Portage
Dispatch newspaper for a full-time police officer because at that time the
Borough’s police force lacked a full-time officer as a result of Claimant’s
suspension. (Id. at 36-39; R. Item 10, Claimant Ex. 3: Advertisement.) The
Borough Manager stated that, while he did have a conversation with Chief Miller
about his text message exchange with Claimant, the Borough Manager was not
aware that Claimant had informed Chief Miller that he understood that he had been
terminated. (H.T. at 38.)
            Following the hearing, the Referee issued a decision and order on
December 4, 2014, concluding that Claimant voluntarily left his employment with
Employer and that he had not proven cause of a necessitous and compelling nature
for doing so. (R. Item 11, Referee Decision and Order, Reasoning at 3.) However,
the Referee determined that there was insufficient evidence to show that the
overpayment of benefits was the result of any fault or fraud on behalf of Claimant


                                        5
and therefore modified the notices of determination issued by the Service Center to
establish a non-fault overpayment pursuant to Section 804(b) of the Law, 43 P.S. §
874(b), and to cancel the penalty weeks and penalty payment. (Id.)
              Claimant appealed, and the Board affirmed the determination of the
Referee. The Board found that Claimant had been suspended without pay and
notified that a formal reprimand was forthcoming but that he resigned on
September 18, 2014 prior to the receipt of formal discipline from Employer. (R.
Item 16, Board Decision and Order, F.F. ¶¶8, 10-13, Discussion at 3.) The Board
noted that an employee who resigns to avoid an imminent discharge, as opposed to
the mere possibility of dismissal, will be treated as having been fired and eligible
for unemployment benefits subject to eligibility under Section 402(e) of the Law,
43 P.S. § 802(e), and other relevant provisions; however, the Board concluded that
here Claimant did not face the threat of an imminent discharge when he signed the
separation agreement and submitted his resignation letter on September 18, 2014.
(R. Item 16, Board Decision and Order, Discussion at 3.) The Board further
determined that Claimant had not shown that he had cause of a necessitous and
compelling nature for resigning his employment, and the Board affirmed the
Referee’s determination that Claimant was subject to a non-fault overpayment of
$925 and that penalty weeks and a penalty payment were unwarranted in this case.
(Id., Discussion at 3-4, Conclusion of Law.) Claimant thereafter petitioned this
Court for review of the Board’s order.6


6
  Our scope of review of the Board’s decision is limited to determining whether errors of law
were committed, constitutional rights or agency procedures were violated, and necessary
findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Wise v. Unemployment
Compensation Board of Review, 111 A.3d 1256, 1261 n.5 (Pa. Cmwlth. 2015).


                                              6
            Whether a claimant’s separation from employment constitutes a
voluntary resignation or a discharge is a question of law subject to this Court’s
plenary review and will be determined from the totality of the facts surrounding the
separation. Wise v. Unemployment Compensation Board of Review, 111 A.3d
1256, 1263 (Pa. Cmwlth. 2015); Middletown Township v. Unemployment
Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). The
claimant bears the burden of demonstrating that the separation was a discharge.
Middletown Township, 40 A.3d at 224; Pennsylvania Liquor Control Board v.
Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth.
1994). If a claimant shows that he was discharged, then the employer has the
burden to prove that the claimant engaged in willful misconduct; however, where
the claimant cannot show that he was discharged, then the claimant must prove
necessitous and compelling reasons for voluntarily separating from employment in
order to obtain unemployment benefits. Middletown Township, 40 A.3d at 224.
            A claimant who resigns to avoid an imminent discharge will be
considered as having been discharged by the employer. Fishel v. Unemployment
Compensation Board of Review, 674 A.2d 770, 773 n.2 (Pa. Cmwlth. 1996) (en
banc); Pennsylvania Liquor Control Board, 648 A.2d at 126. On the other hand, a
claimant who resigns only to avoid the possibility of being fired is deemed to have
voluntarily quit. Fishel, 674 A.2d at 772-73; Pennsylvania Liquor Control Board,
648 A.2d at 126. “The degree of certainty in an employer’s language resulting in a
[separation] has often been the difference between those cases in which the Courts
have found that an employee’s [separation] was voluntary and those in which the
employer’s...act was deemed to effect the [separation].” Fishel, 674 A.2d at 772
(quoting Sweigart v. Unemployment Compensation Board of Review, 408 A.2d


                                         7
561, 563 (Pa. Cmwlth. 1979)). Thus, this Court has held that language from the
employer suggesting that a claimant may be discharged following an investigation
or that the claimant faces termination if her performance does not improve lacks
the immediacy necessary to show a discharge under the Law.              See Scott v.
Unemployment Compensation Board of Review, 437 A.2d 1304, 1305 (Pa.
Cmwlth. 1981) (holding that a bus driver who resigned after being warned by her
employer of possible dismissal if her account of an automobile investigation
proved untrue had voluntarily quit); Rizzitano v. Unemployment Compensation
Board of Review, 377 A.2d 1060, 1061 (Pa. Cmwlth. 1977) (holding that mechanic
who was advised by his employer that he would be replaced if he did not increase
his work output had voluntarily quit). Similarly, a recommendation of termination
by a supervisor has been held to not constitute an imminent threat of discharge
where the recommendation had not been approved by the party responsible for
employment decisions. See Fishel, 674 A.2d at 772-73 (holding that teacher who
resigned after being told by her principal that he would recommend termination to
the school board but prior to a hearing before the board and the board’s vote had
voluntarily quit); Goffi v. Unemployment Compensation Board of Review, 427
A.2d 1273, 1274-75 (Pa. Cmwlth. 1981) (holding that professor who resigned after
being told by the dean of the college that he would recommend the professor’s
termination but prior to a definitive determination of the professor’s status by the
board of trustees had voluntarily quit).
             Upon review, we affirm the Board’s determination that Claimant
voluntarily resigned from his position as a police officer with Employer. Evidence
of record reflects that Employer notified Claimant on September 5, 2014 that he
would face potential discipline for his failure to follow the orders of his supervisor


                                           8
in July 2014. However, Claimant did not wait for the resolution of the disciplinary
process but instead submitted a resignation letter and signed a separation
agreement that provided for a severance package in exchange for his general
release of all claims against Employer except for his claim for unemployment
compensation benefits. There was no evidence presented that Employer had ever
made a final determination to terminate Claimant and Claimant admitted that no
one at Employer formally notified him that he had been terminated. This evidence
supports the Board’s conclusion that Claimant faced only the possibility of
dismissal rather than an imminent dismissal when he submitted his resignation
letter. The fact that Claimant entered into a separation agreement does not change
our analysis; there is no indication in the agreement and there was no testimony
presented to the Board that Claimant entered into the separation agreement under
the threat of or to avoid imminent discharge. See Rosenberg v. Unemployment
Compensation Board of Review, 560 A.2d 292, 293-94 (Pa. Cmwlth. 1989)
(holding that professor’s negotiation of separation agreement with college that
included severance payment and a release of a potential tort claim by the professor
against the college was evidence of the voluntariness of the professor’s separation);
Gauntlett-Kirby v. Unemployment Compensation Board of Review, (Pa. Cmwlth.
No. 340 C.D. 2014, filed November 10, 2014), slip op. at 2-4, 8-9, 2014 WL
10298880 at *1, *4 (holding that claimant who entered into a separation agreement
after being told by human resources that she “probably will be fired” voluntarily
quit where she did not face the clear-cut choice of signing the agreement or being
fired and the agreement did not contain a statement that it was entered into in lieu
of claimant’s discharge).




                                         9
             Claimant argues that the Board failed to consider the totality of the
circumstances regarding Claimant’s separation from Employer and that Claimant
had not resigned, but in fact had been terminated by Employer. Specifically,
Claimant contends that the Board failed to consider the text message conversation
between Claimant and Chief Miller on August 26 and 27, 2014 and the
advertisement placed in the September 18, 2014 edition of the Portage Dispatch,
which would necessarily have to have been ordered prior to Claimant’s execution
of the resignation letter and separation agreement.
             However, contrary to Claimant’s arguments, the Board specifically
considered Claimant’s evidence regarding the text message exchange with Chief
Miller and rejected Claimant’s account that Chief Miller informed him that he had
been terminated as not credible.       (R. Item 16, Board Decision and Order,
Discussion at 3 (“While the claimant testified that he was discharged on August
26, 2014, the Board does not find the claimant’s testimony to be credible.”).) The
Board is the ultimate arbiter of questions of witness credibility and evidentiary
weight and therefore the Board’s determination that Claimant’s testimony that he
learned he was terminated on August 26, 2014 was not credible may not be
disturbed on appeal. Peak v. Unemployment Compensation Board of Review, 501
A.2d 1383, 1385, 1388 (Pa. 1985); Collier Stone Co. v. Unemployment
Compensation Board of Review, 876 A.2d 481, 483 (Pa. Cmwlth. 2005).
Furthermore, the Board rejected Claimant’s argument that Employer’s decision to
advertise for Claimant’s position prior to receipt of his resignation letter showed
that Claimant had in fact been terminated. As the Board explained:

             While the claimant’s counsel argues that discharge was
             imminent because the employer advertised for a full-time
             police officer position on September 18, 2014, the Board
             rejects this argument. Rather, the Board concludes that
                                         10
            the employer was aware that the claimant was quitting
            and planned to accept his severance. As the claimant was
            under no threat of discharge at the time he quit, and the
            claimant only faced a mere chance of discharge, the
            Board rules under Section 402(b) of the Law accordingly.

(R. Item 16, Board Decision and Order, Discussion at 3.)
            Accordingly, we conclude that Claimant voluntarily separated from
Employer.    Claimant has not argued that he had cause of a necessitous and
compelling nature for his separation and therefore the order of the Board finding
that Claimant was ineligible for unemployment compensation benefits under
Section 402(b) is affirmed.



                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge




                                       11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donald J. Wyar,                     :
                                    :
                  Petitioner        :
                                    :
           v.                       : No. 865 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                  Respondent        :



                                ORDER

           AND NOW, this 18th day of March, 2016, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
