           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Ryan L. Babinski,                             :
                                              :
                            Petitioner        :
                                              :
              v.                              :   No. 585 C.D. 2015
                                              :
Unemployment Compensation                     :   Submitted: August 28, 2015
Board of Review,                              :
                                              :
                            Respondent        :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                    FILED: November 3, 2015

       Ryan L. Babinski (Claimant), pro se, petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) finding Claimant
ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law)1
because he voluntarily quit his employment with ECS Mid-Atlantic (Employer)
without cause of a necessitous and compelling nature. On appeal, Claimant argues
that he did not voluntarily quit his employment, but was discharged by Employer,

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) provides that an employee is 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.” Id.
rendering the findings of fact made by the Board incorrect; therefore, the Board
erred in finding him ineligible for UC benefits. Discerning no error, we affirm.


       Claimant was employed by Employer as full-time field technician and his
final day of employment was May 27, 2014.               Claimant filed an application for
UC benefits stating that he did not quit his job, but was terminated by Employer
because he failed to communicate with his supervisor. (Claimant Questionnaire,
R. Item 2; Claimant Record of Oral Interview, R. Item 4.) Employer responded
that Claimant voluntarily quit his employment for personal reasons. (Employer
Questionnaire, R. Item 3.)


       The Erie UC Service Center (Service Center) issued a Notice of
Determination finding Claimant ineligible for UC benefits pursuant to Section
402(b) of the Law. The Service Center determined that Claimant voluntarily quit
his employment because he initiated the separation. (Notice of Determination, R.
Item 5.) The Service Center further determined that Claimant voluntarily quit
because Employer would not permit him to take a personal day; however, because
Claimant did not show that he exhausted all alternatives prior to quitting, he did
not meet his burden of proving that he had a necessitous and compelling reason to
voluntarily terminate his employment.


       Claimant appealed the Service Center’s determination and a telephone
hearing ensued before a UC Referee (Referee).2 Claimant testified on his own

       2
         There were three hearings held by the Referee. The first telephone hearing was held on
October 27, 2014; however, Claimant did not appear because he did not receive notice of the
hearing. Therefore, the Board remanded this matter to the Referee to conduct another hearing.
                                                                              (Continued…)
                                              2
behalf and Employer presented the testimony of its Office Administrator. Based
on the evidence presented, the Board made the following relevant findings of fact:

       1. The claimant was last employed as a full-time field technician by
          ECS Mid-Atlantic at a final rate of $10.00 per hour. The claimant
          worked for the employer for approximately two and a half (2.5)
          years and his last day of work was May 27, 2014.

       2. On May 28, 2014, the head of the department text messaged the
          claimant stating that he was going to be working on Friday,
          Saturday and Sunday.

       3. The head of [the] department then later sent a text message stating
          that the claimant would have to work Thursday.

       4. The claimant said that he could not work on one of the days
          between Thursday and Sunday because he had a personal matter
          that he had to take care of by Sunday.

       5. The head of [the] department would not agree to allow the
          claimant to take a day off any of the days from Thursday to
          Sunday.

       6. The head of the department told the claimant that if he did not
          report to work on Thursday he was to be fired.

       7. The claimant did not report to work on Thursday or call off.




(Board Hearing Order, R. Item 15.) The second telephone hearing convened on December 18,
2014 but, due to a poor telephone connection resulting in the Referee not being able to hear
Claimant, the Referee continued the hearing to the next day, December 19, 2014. (Hr’g Tr. 2-3,
December 18, 2014, R. Item 18.) During the December 19, 2014 telephone hearing, the Referee
heard testimony from Claimant as to reasons why he did not receive notice of the October 27,
2014 hearing. (Hr’g Tr. at 8, December 19, 2014, R. Item 21.) The Board found that Claimant’s
credible testimony “established proper cause for his non-appearance at the” October 27, 2014
hearing. (Board Decision at 2.) Therefore, the Board “considered the evidence and testimony
offered by Claimant at the remand hearings held on December 18, and December 19, 2014” in
reaching its Decision. (Board Decision at 2.)

                                              3
       8. The claimant voluntarily quit his employment because he had a
          personal matter to take care of on Thursday.

(Board Decision, Findings of Fact (FOF) ¶¶ 1-8.) The Board found that Claimant
voluntarily quit his employment and was not discharged because Employer gave
Claimant a choice when Employer informed Claimant “that if he did not report to
work on Thursday he would be discharged” and Claimant chose to separate his
employment by not reporting for work on Thursday. (Board Decision at 3.) The
Board determined further that Claimant did not show cause of a necessitous and
compelling nature for voluntarily leaving his employment. The Board pointed out
that “[C]laimant testified that he could not work on Thursday due to a personal
matter,” but he did not provide additional testimony on what the nature of the
personal matter was and why he had to attend to this matter “instead of preserving
his employment.” (Board Decision at 3.) Therefore, the Board found that the
record did not support the conclusion that Claimant had a necessitous and
compelling reason to terminate his employment.                    Accordingly, the Board
concluded that Claimant was ineligible for UC benefits pursuant to Section 402(b)
of the Law. Claimant now petitions for review of the Board’s Order.3


       3
          This Court’s scope of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of facts are
supported by substantial evidence. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa.
2014). On review, this Court must examine the record as a whole and consider 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.” Middletown Township v.
Unemployment Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). If
substantial evidence exists to support the Board’s findings, then this Court must accept the
findings as conclusive, even if there is conflicting testimony or evidence of a contrary
conclusion. Id.; Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368
(Pa. Cmwlth. 2008).

                                               4
      On appeal, Claimant argues that he did not voluntarily quit his job, but
instead was discharged by his supervisor on May 28, 2014 via text message
because Claimant asked for a day off to attend to a personal matter. Claimant
contends that there was no room for negotiation with his supervisor to resolve the
situation because his supervisor told Claimant his work schedule was non-
negotiable. Claimant asserts that his supervisor just terminated his employment
and from that moment on Claimant “acted like a terminated employee and turned
in his equipment.” (Claimant’s Br. at 9.) Claimant contends that is why he did not
report to work on Thursday, call off, or voluntarily quit due to a personal matter.
As such, Claimant argues, the Board’s findings of fact 6, 7, and 8 are incorrect.


      The threshold issue in this matter is whether the Board erred by finding that
Claimant was not discharged, but voluntarily quit his employment. “In a voluntary
quit case, it is the claimant’s burden to prove that his separation from employment
is involuntary.” Bell v. Unemployment Compensation Board of Review, 921 A.2d
23, 26 (Pa. Cmwlth. 2007). “[T]he issue concerning whether a termination of
services is a voluntary quit or a discharge is a question of law to be determined by
this Court based upon the findings of fact in the record.” Torsky v. Unemployment
Compensation Board of Review, 474 A.2d 1207, 1209 (Pa. Cmwlth. 1984).


      “An employee may assume that he has been discharged even though the
employer has not specifically used words such as ‘fired’ or ‘discharged.’” Id.
“The inference may be made from other language of equal immediacy and
finality.” Id. Our Supreme Court has recognized, however, that employees offered
a “real choice between alternatives,” who still chose to leave, voluntarily quit.
Monaco v. Unemployment Compensation Board of Review, 565 A.2d 127, 130
                                          5
(Pa. 1989). The employer’s language cannot rise to the level of a discharge if the
employer allows the employee “an opportunity to remain employed” within
reasonable employment expectations. Id.


      Here, the Board found that Employer “told the claimant that if he did not
report to work on Thursday he was to be fired.” (FOF ¶ 6.) This finding is based
upon Claimant’s own testimony. Claimant specifically testified that he was told by
his supervisor that he would be fired if he did not report for work on Thursday.
(Hr’g Tr. at 10, December 19, 2014, R. Item 21.) In his brief in support of this
appeal, Claimant asserts that the Board’s finding of fact is not correct because he
was flustered by the Referee’s questioning resulting in Claimant mistakenly
testifying that Employer informed him that he would be terminated if he did not
show up for work on Thursday. Claimant contends that the truth is he did not
show up for work on Thursday because he was discharged by his supervisor the
night before. Although Claimant may now believe that he was mistaken in his
testimony, our review is confined to the testimony of record which Claimant
provided under oath. In that testimony, Claimant responded to a direct and clear
question from the Referee asking Claimant if his supervisor told him that if he did
not work on Thursday he would be fired. (Hr’g Tr. at 10.) Claimant testified,
“[h]e told me that, yes, if I didn’t work Thursday I’d be fired, and I already made
my plans.” (Hr’g Tr. at 10.) Claimant testified further that “that was the last
straw. That was what did it.” (Hr’g Tr. at 10.)


      Therefore, as testified to by Claimant, Employer’s language gave Claimant
an opportunity to remain employed by choosing to report to work as directed.
However, Claimant chose not to report to work, which constituted a voluntary
                                         6
termination of his employment. Monaco, 565 A.2d at 130. Accordingly, the
Board did not err by finding that, because Claimant “decided to separate his
employment by not attending work,” he voluntarily quit his employment. (Board
Decision at 3.)


      Because we conclude that the Board did not err by finding that Claimant
voluntarily terminated his employment, we do not find Claimant’s argument
persuasive that the Board’s findings of fact 7 and 8 are incorrect. Claimant’s
testimony supports finding of fact 7 that he “did not report to work on Thursday or
call off.” (FOF ¶ 7.) Claimant testified that he did not report for work on
Thursday or call Employer.     (Hr’g Tr. at 10-11.)    Claimant’s testimony also
supports finding of fact 8 that “[C]laimant voluntarily quit his employment because
he had a personal matter to take care of on Thursday.” (FOF ¶ 8.) Claimant
testified that he had already made plans to take care of a personal matter on
Thursday when Employer notified him that he was required to work that day.
(Hr’g Tr. at 9.)


      We now turn to the issue of whether Claimant had a necessitous and
compelling reason to voluntarily quit his employment. Section 402(b) of the Law
provides that a claimant is ineligible for compensation if his unemployment is due
to voluntarily leaving his employment without cause of a necessitous and
compelling nature.    43 P.S. § 802(b).      Since Claimant voluntarily left his
employment, it was his burden to show that he had cause of a necessitous and
compelling nature to do so. Latzy v. Unemployment Compensation Board of
Review, 487 A.2d 121, 122 (Pa. Cmwlth. 1985). To satisfy this burden, Claimant
must demonstrate that:    “(1) circumstances existed which produced real and
                                        7
substantial pressure to terminate employment; (2) such circumstances would
compel a reasonable person to act in the same manner; (3) the claimant acted with
ordinary common sense; and, (4) the claimant made a reasonable effort to preserve
[his] employment.”        Brunswick Hotel & Conference Center, LLC v.
Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth.
2006).


      In this matter, Claimant testified that he needed time off to attend to a
personal matter. (Hr’g Tr. at 9.) Although Claimant testified that the personal
matter was time sensitive, (Hr’g Tr. at 9), he did not offer any explanation as to the
nature of the personal matter or why he needed to attend to it immediately instead
of reporting to work as directed by Employer. Accordingly, the Board did not err
by finding “that the record does not support a conclusion that the claimant had a
necessitous and compelling reason to quit.” (Board Decision at 3.)


      For the foregoing reasons, the Board’s Order is affirmed.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                          8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Ryan L. Babinski,                     :
                                      :
                       Petitioner     :
                                      :
            v.                        :   No. 585 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER

      NOW, November 3, 2015, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
