           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Baik and Associates, P.C.,                     :
                         Petitioner            :
                                               :
                v.                             :    No. 2187 C.D. 2015
                                               :    Submitted: May 13, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: August 29, 2016

                Baik & Associates, P.C. (Employer), petitions for review from an
order of the Unemployment Compensation Board of Review (Board) that granted
Matteo Weiner (Claimant) unemployment compensation (UC) benefits, concluding
Employer did not prove Claimant committed willful misconduct under Section
402(e) of the UC Law (Law)1. Employer contends the Board erred in reaching this
determination.       Employer also asserts the Board erred in its alternative
determination to allow benefits under Section 402(b) of the Law, 43 P.S. §802(b)
(relating to voluntary quit). While we agree with some of Employer’s arguments,
we nevertheless affirm on other grounds.2

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
       2
         We will affirm an order of a lower tribunal even if the reason given is incorrect, where
the correct basis for affirmance is apparent on the record. See Phila. Parking Auth. v.
Unemployment Comp. Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010).
                                 I. Background
            Claimant worked for Employer as an attorney from May 1, 2012,
through May 20, 2015, at a pay rate of $12.00 per hour.           Throughout his
employment, Claimant primarily reported to Hae Yeon “Helen” Baik (President),
president and owner of Employer.


            Claimant did not appear for work on May 21, 2015 as a result of a
personal obligation. On May 21, 2015, President emailed Claimant advising him
not to come into work on May 22 because she needed to procure a business
valuation report (Report) for a particular bankruptcy action, and she only wanted
Claimant to return to work once she received the Report. Prior to President’s May
21 email, however, Claimant worked on various other cases for Employer.
Claimant replied to President’s email and inquired whether any other work would
be made available to him on May 22.         President indicated she only wanted
Claimant to work on the bankruptcy action at that time, and to do nothing until the
Report was received.


            President did not receive the Report by May 22. As a result, she
emailed Claimant that he should not appear for work the next business day, May
26. President’s emails advising Claimant not to report to work continued through
Friday, June 12, 2015. On June 12, President anticipated receipt of the Report, and
she advised Claimant he should appear for work on Monday, June 15, 2015. Upon
receiving President’s June 12 email, Claimant informed President that he
interpreted the three-week separation from Employer as a constructive termination,



                                        2
and he attempted to clarify the terms of his future employment. President refused
to engage in such discussions with Claimant.
            Thereafter, Claimant applied for UC benefits, which a local service
denied under Section 402(b) of the Law. Claimant appealed, and a referee’s
hearing followed.


            At the hearing, President testified on behalf of Employer while
represented by counsel. Claimant represented himself.


            Claimant testified he last worked for Employer on Wednesday, May
20, 2015, and a personal obligation prevented him from working on Thursday,
May 21, 2015.       Claimant further testified President typically accommodated
Claimant when he could not make it into the office. President emailed him on May
21, advising him not to come into work on May 22, because she needed to receive
the Report. Claimant attempted to clarify the terms of his employment with
President, specifically as to why he could only work on just one bankruptcy case.
Referee’s Hr’g, Notes of Testimony (N.T.), 8/21/15, at 13. President reiterated
that she did not want him coming into work until she received the Report.
President’s emails advising him not to come into work continued for about three
weeks, until June 12, when President emailed him requesting he come to work on
June 15. N.T. at 14.


            Upon receipt of President’s June 12 email, Claimant interpreted the
three-week employment separation as a termination, and he would not appear for
work on June 15 unless President negotiated different terms of employment. N.T.



                                        3
at 14-15. Claimant also testified that by May 26, President failed to issue his
paychecks for the past six to eight weeks of work.          N.T. at 24. On cross-
examination by Employer’s counsel, Claimant admitted that President never stated
she terminated Claimant’s employment, and that President wanted him to return to
work on June 15.


             President testified she hired Claimant as a full-time attorney at a rate
of $12.00 per hour. Claimant last worked on May 20, 2015. President sent
Claimant emails advising him not to report to work from May 22 through June 12.
This separation was not considered a vacation for Claimant. N.T. at 20, 21.
President could not assign Claimant other work beyond the bankruptcy action
because it would not be “beneficial,” and she initially anticipated receiving the
Report in a few days, not three weeks. N.T. at 21, 22. Employer submitted
documentation purporting to show Claimant habitually arrived late for work and
spent excessive, unauthorized time on certain cases, but President did not testify in
detail regarding this alleged willful misconduct. President testified she wanted
Claimant to return to work as a full-time, permanent employee. N.T. at 23.


             Ultimately, the referee granted Claimant UC benefits. In so doing,
she made the following findings:

             1.    [Claimant] was employed as an [a]ttorney from May 1,
             2012 through May 20, 2015; at the time of separation he was
             working full-time and was earning $12.00 per hour.

             2.    Due to family/personal commitments, [Claimant] did not
             appear for work on Thursday, May 21, 2015.




                                         4
3.    On Thursday, May 21, 2015, [President] advised
[Claimant] that he should not appear for work the following
day, Friday, May 22, 2015 because ‘we have to get the [Report]
from the accountant . . . it is useless to go on without the
evaluation . . . please take the time off and we will see you on
Tuesday [May 26, 2015].’

4.    On Thursday, May 21, 2015, [Claimant] responded to
[President’s] emails by inquiring as to whether there was any
work for him to do on Friday, May 22, 2015.

5.      [President] replied to [Claimant’s] May 21, 2015 inquiry
by stating ‘I am waiting to get the [Report] . . . once we get it,
let’s firm up first . . . and [then] go forward with anything else .
. . .’

6.     On Friday, May 22, 2015, [President] advised [Claimant]
that he should not appear for work the following business day,
Tuesday, May 26, 2015.

7.    [Claimant] did not receive [President’s] message and
appeared for work on Tuesday, May 26, 2015.

8.    On May 26, 2015, [President] instructed [Claimant] to go
home and informed him that he could resume work when a
business valuation report was received by [Employer].
[President] also indicated she would contact [Claimant] to
inform him when he could return to work.

9.    Subsequently, [President] contacted [Claimant] via email
on multiple occasions and advised him not to appear for work
on May 27, 28, and 29, 2015 because the [Report] had not yet
been received.

10. [President] reiterated the same message to [Claimant] via
email and advised him not to appear for work June 1-12, 2015
because the [Report] had not yet been received.

11. On June 12, 2015, [President] contacted Claimant via
email and instructed [Claimant] to appear for work on Monday,

                             5
            June 15, 2015 ‘on or before 9:00 A.M. . . . and [if] you’re late
            submitting the work product, then do not come in the following
            day. . . .’

            12. [Claimant] was absent from work from May 22 – June
            15, 2015 because no work was made available to him.

            13. When instructed to return to work, [Claimant]
            endeavored to clarify the terms of his employment but
            [President] refused to engage in any such discussion.

            14. [Claimant] did not initiate the separation from
            employment and did not voluntarily resign from his position.

            15. [Claimant] filed for and received benefits in the
            aggregate amount of $861 for the claim weeks ending June 20,
            2015 through July 4, 2015.

Referee’s Dec., 8/26/15, Finding of Fact (F.F.) Nos. 1-15.


            Based on her determinations that Employer initiated Claimant’s
separation from employment and that Claimant did not voluntarily quit, the referee
determined Section 402(e) of the Law applied. Applying Section 402(e), the
referee concluded:

            Although the record in this matter includes some references to
            [Claimant’s] attendance record and/or failure to appear for work
            on a timely basis, [Employer] failed to provide sufficient
            testimony or documentary evidence that would support a
            finding of willful misconduct by [Claimant]; therefore, benefits
            cannot be denied under Section 402(e) of the Law.




                                         6
Referee’s Dec. at 3. In her analysis, the referee also noted that, had she decided
this case under Section 402(b) of the Law, Claimant would still be entitled to
benefits. Id.3
              On appeal, the Board adopted and incorporated the referee’s findings
and conclusions and affirmed the grant of benefits. Bd. Op. at 1. Employer now
petitions for review to this Court.4


                                          II. Issues
              Employer argues it did not terminate Claimant’s employment. Rather,
he voluntarily quit without good cause, rendering him ineligible for UC benefits
under Section 402(b) of the Law. Employer further maintains Claimant is only
entitled to benefits for the separation period of May 20, 2015, through June 12,
2015. Alternatively, Employer argues the record contains substantial evidence to
show Claimant committed willful misconduct by habitually arriving late to work
and by disregarding President’s instructions to limit the time he spent on certain
cases.




         3
           The service center’s decision denying benefits also included a determination that
Claimant had a fault overpayment for the claim weeks ending June 20, 2014 through July 4,
2015. The referee determined there was no fault overpayment because Claimant was, in fact,
eligible for UC benefits. Because no party raises an issue regarding the overpayment, we do not
address it.
         4
         Our review is limited to determining whether 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).



                                              7
                                  III. Discussion
            The Board is the ultimate fact-finder in UC cases and is empowered to
resolve conflicts in the evidence and determine the credibility of witnesses. Lee v.
Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). The
Board’s findings are conclusive on appeal if the record contains substantial
evidence to support those findings. Id. This Court views the record in the light
most favorable to the party that prevailed before the Board, and we give that party
the benefit of all reasonable inferences that can be drawn from the evidence.
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616 (Pa. Cmwlth.
1999).


                             A. Nature of Separation
            Employer first argues Claimant voluntarily quit his employment, and
its actions cannot amount to a discharge under Section 402(e) of the Law.
Employer contends it was error for the referee and the Board to determine it
terminated Claimant’s employment in light of President’s unrefuted testimony that
she never told Claimant he was “fired” or “terminated,” and because President
intended for Claimant to return to work. N.T. at 19, 22.


            Whether an employee’s action amounts to a voluntary termination is a
question of law to be determined by examining the Board’s findings. Fishel v.
Unemployment Comp. Bd. of Review, 674 A.2d 770 (Pa. Cmwlth. 1996); Pa.
Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124 (Pa.
Cmwlth. 1994).      If an employee, without action by the employer, quits
employment, his action amounts to a voluntary termination. Fishel; Sweigart v.
Unemployment Comp. Bd. of Review, 408 A.2d 561 (Pa. Cmwlth. 1979). A


                                         8
claimant who resigns to avoid the mere possibility of a discharge will be found to
have voluntarily terminated his employment. Fishel.


             The claimant has the burden to prove his separation was the result of a
termination from employment. Key v. Unemployment Comp. Bd. of Review, 687
A.2d 409 (Pa. Cmwlth. 1996). For a claimant to prove a termination, he must
show the employer’s actions or words were sufficient to evince the immediacy and
finality of a firing. Monaco v. Unemployment Comp. Bd. of Review, 565 A.2d
127 (Pa. 1989); DeMelfi v. Unemployment Comp. Bd. of Review, 442 A.2d 1249
(Pa. Cmwlth. 1982); Chinn v. Unemployment Comp. Bd. of Review, 426 A.2d
1250 (Pa. Cmwlth. 1981). Examples include an employer telling a claimant, “pick
up your pay,” “turn in your key,” or “pull your time card.”            Rizzitano v.
Unemployment Comp. Bd. of Review, 377 A.2d 1060, 1061 (Pa. Cmwlth. 1977).
This Court utilizes a totality of the circumstances test to determine the claimant’s
intent. Monaco.


             Here, the Board’s supported findings compel a determination that
Claimant voluntary quit his employment rather than a determination that Employer
terminated Claimant’s employment. More particularly, the record does not evince
any communication from President to Claimant reflecting the requisite immediacy
and finality of a firing. Monaco; DeMelfi; Chinn. Not surprisingly, the Board’s
adopted findings do not contain such communications.          To the contrary, the
Board’s adopted findings reveal President made repeated attempts to communicate
to Claimant that the employment relationship was ongoing. F.F. Nos. 3, 8, 11. In
many of the emails, President wrote, “[a]s soon as I get [the Report], I will let you



                                         9
know immediately.” C.R., Item No. 2. President wanted Claimant to return to
work upon her receipt of the Report.             F.F. No. 11; N.T. at 21-23.           No fair
interpretation of President’s communications suggests President intended to
terminate Claimant’s employment.             Thus, we conclude Claimant voluntarily
terminated his employment by way of his June 15th email when he “consider[ed]
[him]self to have been terminated ….” C.R., Item No. 2, 13; see Fishel.5


              Because Claimant’s separation from Employer was not the result of a
termination of employment by Employer, we analyze this case under Section
402(b) of the Law.


                                    B. Voluntary Quit
              Under Section 402(b) of the Law, a claimant shall be ineligible for
benefits when he voluntarily terminates his employment without necessitous and
compelling cause.        43 P.S. §802(b).        A finding that a claimant voluntarily
terminated his employment is not an absolute bar to UC benefits, so long as he is
able to prove a necessitous and compelling cause existed that warranted the

       5
          In its brief, the Board relies on Davila v. Unemployment Compensation Board of
Review, 926 A.2d 1287 (Pa. Cmwlth. 2007) and Mallia v. Unemployment Compensation Board
of Review, 507 A.2d 1284 (Pa. Cmwlth. 1986), and argues that because Employer initiated the
separation, Claimant could only logically infer he was terminated. The Board’s reliance on these
cases is misplaced. Davila involved a denial of UC benefits where a claimant voluntarily
participated in an employee retirement program, which necessitated her eventual employment
separation and employer provided evidence of the availability of continuing work had claimant
chosen not to retire. Further, the claimant in Mallia ceased work as a groundskeeper based on a
physical injury, and his employer told him he would be rehired if his physical condition
improved. Mallia, 507 A.2d at 1286. Therefore, the Mallia claimant’s only logically inference
was that he no longer had a job while he was injured. Id. Davila and Mallia are inapposite here.
To that end, in the instant case, President’s emails show the continuation of an employment
relationship with Claimant, so Claimant could not logically infer he was terminated.




                                              10
termination.      Monaco; Brunswick Hotel & Conference Center, LLC v.
Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). This
burden rests with the claimant. Id.


               In order to satisfy this burden, a claimant must show: (1)
circumstances existed that produced real and 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;
Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 (Pa. Cmwlth.
1998). Whether an employee had necessitous and compelling cause is a question
of law, which is fully reviewable by this Court. Brunswick Hotel.


               “It is well-settled that an employer’s imposition of a substantial
unilateral change in the terms of employment constitutes a necessitous and
compelling cause for an employee to terminate his employment.”            Brunswick
Hotel, 906 A.2d at 660; A-Positive Elec. v. Unemployment Comp. Bd. of Review,
654 A.2d 299 (Pa. Cmwlth. 1995). Examples include an employer substantially
reducing a claimant’s pay, Ship Inn Inc. v. Unemployment Comp. Bd. of Review,
412 A.2d 913 (Pa. Cmwlth. 1980), hours, Earnest v. Unemployment Comp. Bd. of
Review, 30 A.3d 1249 (Pa. Cmwlth. 2011), failing to timely remit paychecks, A-
Positive Elec., or failing to provide work to a claimant, Phila. Parking Auth. v.
Unemployment Comp. Bd. of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).


               As to Section 402(b), the referee here stated (with emphasis added):



                                          11
             The Referee wishes to note that had the Referee decided this
             case under Section 402(b) of the Law, [Claimant] would have
             been found eligible for benefits based on his unrefuted
             testimony that he declined to appear for work after a three week
             gap because it represented a unilateral change in the terms and
             conditions of his position as a full-time employee i.e., hours of
             work.
             [Claimant] also provided unrefuted testimony that he had not
             been paid by [Employer] for work performed by him. Again,
             this too is recognized by the [c]ourts as a necessitous and
             compelling cause for leaving employment.

Referee’s Dec. at 3. The Board adopted this reasoning along with the rest of the
referee’s decision.


             Upon review, the record supports the unemployment compensation
authorities’ alternative determination that Claimant had necessitous and
compelling cause to voluntarily terminate his employment.           As a full-time
employee paid hourly, N.T. at 8, Employer’s imposition of a sudden three-week
separation constituted a substantial reduction in hours and presumably, pay.
Earnest; Ship Inn. Claimant’s relegation to just one bankruptcy case, and the
corresponding lack of work, also constitutes necessitous and compelling cause to
terminate employment. Phila. Parking Auth. (claimant awarded UC benefits when
he chose to voluntarily terminate his employment and employer did not prove
continuing work was available).


             Additionally, Claimant presented unrefuted testimony that Employer
did not pay him for six to eight weeks.         N.T. at 24; Referee’s Dec. at 3.
Employer’s failure to remit timely paychecks also constitutes necessitous and
compelling cause for Claimant to quit. A-Positive Elec. Lastly, amidst the three-


                                        12
week separation, Claimant’s attempts at renegotiating his terms and conditions of
employment with President show he made a reasonable effort to preserve the
employment relationship. See F.F. No. 13; N.T. at 13, 15, 18; Brunswick Hotel;
Fitzgerald. Thus, we agree with the Board’s adopted alternative analysis that
Claimant is eligible for UC benefits under Section 402(b) of the Law because he
had the requisite necessitous and compelling cause to terminate his employment.


            Based on the foregoing, we affirm on other grounds.




                                     ROBERT SIMPSON, Judge




                                       13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Baik and Associates, P.C.,              :
                         Petitioner     :
                                        :
            v.                          :   No. 2187 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                      ORDER

            AND NOW, this 29th day of August, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED on other grounds.




                                       ROBERT SIMPSON, Judge
