           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jasin Marth,                                  :
                     Petitioner               :
                                              :
               v.                             :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 359 C.D. 2019
                 Respondent                   :   Submitted: October 4, 2019


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                           FILED: February 7, 2020


               Jasin Marth (Claimant), pro se, petitions for review of the February 26,
2019 order of the Unemployment Compensation Board of Review (Board) reversing
the referee’s grant of unemployment compensation benefits (benefits), finding
instead that Claimant is ineligible for benefits under Section 402(b) of the
Pennsylvania Unemployment Compensation Law (Law)1 for voluntarily quitting his
employment without cause of a necessitous and compelling nature. Upon review,
we vacate and remand.
               Claimant worked for Integrity Staffing Solutions (Employer) as a
warehouse associate at the site of its client, Amazon.com, from November 5, 2017

       1
          Section 402(b) of the Law provides that “[a]n employe shall be 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.” Act of December 5, 1936, Second Ex.
Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
to June 12, 2018, his last day of work. Board’s Decision & Order 2/26/19 at 1,
Finding of Fact (F.F.) 1. On June 20, 2018, Claimant called Employer and resigned
due to “family issues.”         F.F. 2-3.      Claimant applied for benefits, which the
Unemployment Compensation (UC) Service Center granted, deeming Claimant not
ineligible under Sections 3 and 402(e) of the Law.2 UC Service Center Notice of
Determination, Certified Record (C.R.) at 29.3 Employer appealed, and a referee
conducted a hearing on October 29, 2018. Petition for Appeal at 1, C.R. at 32;
Transcript of Testimony (T.T.), 10/29/18, C.R. at 101. Claimant failed to appear at
the hearing. T.T., 10/29/18 at 1, C.R. at 102. Laurie Bottoni-Lorenz (Lorenz), a
human resources (HR) specialist for Employer, testified that Claimant did not work
after June 12, 2018 and that Claimant telephoned the shift manager and resigned his
position due to family issues on June 20, 2018. T.T., 10/29/18 at 2 & 4-5, C.R. at
103 & 105-06. The referee affirmed the UC Service Center’s grant of benefits,
concluding that Claimant was not ineligible under either Section 402(e) or Section
3 of the Law. Referee’s Decision & Order at 2, C.R. at 116.
               Employer appealed, and the Board remanded the matter to the referee,
as hearing officer for the Board, to conduct another hearing in order “to put at issue
Section 402(b) of the Law, . . . along with Section 3 and Section 402(e)[.]” Board’s
Hearing Order 1/9/19, C.R. at 128. The referee conducted a second hearing on

       2
         Section 3 of the Law, 43 P.S. § 752, “is used to disqualify claimants for non-work-related
misconduct which is inconsistent with acceptable standards of behavior and which directly affects
the claimant’s ability to perform his assigned duties.” See Burger v. Unemployment Comp. Bd. of
Review, 801 A.2d 487, 491 (Pa. 2002) (quoting Se. Pa. Transp. Auth. v. Unemployment Comp. Bd.
of Review, 506 A.2d 974, 977 (Pa Cmwlth. 1986)). Section 402(e) of the Law provides that “[a]n
employe shall be ineligible for compensation for any week . . . in which his unemployment is due
to his discharge or temporary suspension from work for willful misconduct connected with his
work.” 43 P.S. § 802(e).
       3
          Our citations to the Certified Record reference the page numbers of the PDF document,
as the record is not paginated.
                                                2
January 28, 2019 and permitted Claimant to participate in the remand hearing by
telephone. T.T., 1/28/19 at 1-3, C.R. at 142-44. Claimant testified that he had “been
living in Florida for three to four months.” T.T., 1/28/19 at 5, C.R. at 146. Claimant
disputed that he voluntarily quit his job. T.T., 1/28/19 at 6-7, C.R. at 147-48.
Claimant explained that he was absent from work because he had to fly to Florida
for a death in the family and that he reported his absence to Employer through its
app. T.T., 1/28/19 at 6-7 & 9, C.R. at 147-48 & 150. Claimant further testified that
he read Employer’s statement from the prior hearing and that, contrary to
Employer’s testimony, he was not asked if he wanted to quit or leave the job. T.T.
at 6, C.R. at 147. Rather, Claimant stated he received a call from Employer’s
representative at approximately 9:00 p.m. the evening he returned from Florida. Id.
Claimant explained that he stated during the call: “I know your procedure. You
release people, because I had to fly out of the state for a death in the family, and I
said I understand you have to let me go. And that’s what [Employer’s representative]
said. Okay, you understand you’re let go?” T.T., 1/28/19 at 6-7, C.R. at 147-48.
Lorenz again testified on behalf of Employer. T.T., 1/28/19 at 1, C.R. at 142.
             Upon review, the Board reversed the referee’s decision, finding
Claimant ineligible for benefits pursuant to Section 402(b) of the Law. Board’s
Decision and Order 2/26/19 at 2-3, C.R. at 158-59. The Board noted that “[i]t is
unclear why . . . [C]laimant did not participate at the first hearing[,]” during which
“the [r]eferee attempted to contact [him] on the telephone.” Board’s Decision &
Order 2/26/19 at 2, C.R. at 158. The Board concluded that “[b]ecause . . . [C]laimant
did not establish [at the second hearing] why he did not participate in the first
hearing, the testimony at the second hearing will not be considered.” Id. The Board
determined that competent record evidence supported that Claimant resigned his job


                                          3
by telephone due to family issues. Id. Having determined that Claimant voluntarily
quit, the Board stated that “the appropriate section to rule under[]” was Section
402(b) of the Law. Id. The Board concluded that Claimant was ineligible for
benefits under Section 402(b) of the Law, finding that Claimant failed to offer
competent evidence as to why he quit. Id. The Board noted that domestic, filial and
marital reasons for quitting do not provide not necessitous and compelling cause as
a matter of law. Id.
             Thereafter, Claimant submitted to the Board a request for
reconsideration of the Board’s February 26, 2019 decision and order, and he also
petitioned this Court for review of that decision and order.       See Request for
Reconsideration, C.R. at 163; Petition for Review, 3/25/19. In response to the
request for reconsideration, the Board issued an order, dated March 27, 2019,
purporting to vacate its February 26, 2019 decision and order, grant reconsideration,
and “reopen[]” the matter “to consider the testimony offered at both hearings.” See
Board’s Order 3/27/19, C.R. at 168. On April 15, 2019, the Board purported to issue
a new decision and order, again denying Claimant benefits on the grounds that he
voluntarily quit his employment without necessitous and compelling cause. Board’s
Decision & Order 4/15/19 at 1-3, C.R. at 172-75.
             The Board also filed an application to quash Claimant’s petition for
review, arguing that it had granted Claimant’s request for reconsideration and had
vacated its February 26, 2019 order, thereby rendering Claimant’s petition for
review inoperative in accordance with Pennsylvania Rule of Appellate Procedure
1701(b)(3). See Application to Quash, 7/9/19. By order dated August 12, 2019, this
Court determined that the Board’s March 27, 2019 order did not “expressly grant
reconsideration,” as required by Pennsylvania Rule of Appellate Procedure


                                         4
1701(b)(3), and therefore, we denied the Board’s application to quash. Cmwlth. Ct.
Order, 8/12/19.
             Because the Board did not expressly grant reconsideration, the Board
lost the power to act on Claimant’s application for reconsideration. See Pa.R.A.P.
1701(b)(3), Note (stating, where a “government unit fails to enter an order ‘expressly
granting reconsideration’ . . . within the time prescribed by these rules for seeking
review,” the government unit loses the power to act on the application).
Consequently, the Board’s March 27, 2019 order purporting to vacate its February
26, 2019 decision and order is a nullity, as is the resulting decision and order issued
on April 15, 2019. See Pa.R.A.P. 1703(b)(3), Note (explaining if government unit
fails to enter order expressly granting reconsideration, subdivision (a), stating
government unit may not proceed further in matter, becomes operative); Pa. Indus.
Energy Coal. v. Pa. Pub. Util. Comm’n, 653 A.2d 1336, 1346 (Pa. Cmwlth. 1995),
aff’d, 670 A.2d 1152 (Pa. 1996) (citing Pa.R.A.P. 1701(b)(3)) (holding that
“[w]ithout [a] timely, express grant of reconsideration, the [Public Utility
Commission] lacked authority to issue the . . . order and we [were] without
jurisdiction to review it”); Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989)
(citing Pa.R.A.P. 1701(b)(3), Note) (stating that “[i]t should be emphasized that []
Rule [1701(b)(3)] requires reconsideration to be expressly granted,” such that
“[f]ailure to ‘expressly’ grant reconsideration within the time set by the rules for
filing an appeal will cause the trial court to lose its power to act on the application
for reconsideration”). Consequently, Claimant’s petition for review of the February
26, 2019 Board order is properly before us and is the decision and order we are
reviewing.




                                          5
                Before this Court,4 Claimant argues that the Board erred in finding that
he voluntarily quit his job, as Employer in fact terminated him. Claimant’s Brief at
2. Claimant therefore requests that this Court reverse the Board’s decision. Id.
Further, Claimant asserts that he was unable to defend himself or to provide his side
of the story, because he moved to Florida to work as a teacher and did not receive
notice of the first hearing until it was too late. Petition for Review at 1; Claimant’s
Brief at 1. Claimant states that he informed the unemployment agency and the
referee of his move and his new address. Petition for Review at 1; Claimant’s Brief
at 1.
                Initially, we note that despite having remanded the matter to the referee
to specifically put at issue Section 402(b) of the Law, the Board refused in its
February 26, 2019 decision to consider Claimant’s testimony at the second hearing
due to his failure to appear at the first hearing.5 Board’s Decision & Order 2/26/19
at 2, C.R. at 158. We find it is curious that the Board would remand the matter to
make a record on an additional section of the Law, which had not been at issue at
the first hearing, and then not consider the full record as it pertains to that additional
section of the Law. However, the Board subsequently stated both in its order
purportedly granting Claimant’s request for reconsideration and its April 15, 2019
decision that it reopened the matter to consider the testimony offered at both

        4
          This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).
        5
          We note that the Board’s remand order did not state that the purpose of the remand
included inquiry into the reason for Claimant’s absence at the first hearing. See Board’s Hearing
Order 1/9/19, C.R. at 128; see also 34 Pa. Code § 101.105(a) (stating that where Board determines
a further hearing is necessary, it shall give notice to the parties with specific instructions regarding,
among other things, “specific issues to be covered at the hearing”).

                                                   6
hearings. Board’s Order 3/27/19; Board’s Decision & Order 4/15/19 at 2, C.R. at
174. Although the Board’s April 15, 2019 decision is a nullity, see supra discussion
p. 5, we note that the Board, apparently recognizing its error, indeed considered
Claimant’s testimony from the remand hearing in the April 15, 2019 decision, citing
Claimant’s explanation for missing work and his statement regarding the phone call
with Employer. See Board’s Decision & Order 4/15/19 at 2, C.R. at 174.
             Problematically, the February 26, 2019 decision and order which
denied Claimant benefits, concluding that Claimant voluntarily quit his job, does not
contain any findings of fact relative to Claimant’s testimony at the second hearing,
testimony which is properly part of the record before us and which addresses
Claimant’s position that he did not voluntarily quit. Without findings of fact relative
to this testimony, this Court is precluded from conducting effective appellate review.
See Tri-State Sci. v. Unemployment Comp. Bd. of Review, 589 A.2d 305, 308 (Pa.
Cmwlth. 1991) (stating that “where factual issues which may be legally
determinative of a [c]laimant’s eligibility for unemployment compensation benefits
are not addressed by the Board, it is not possible for this Court to perform its function
of appellate review”); see also Kirkwood v. Unemployment Comp. Bd. of Review,
525 A.2d 841, 844 (Pa. Cmwlth. 1987) (vacating and remanding where absence of
credibility determination precluded effective appellate review).
             Accordingly, we vacate the Board’s order and remand this matter to the
Board to issue a new decision that considers the testimony offered at both the
October 29, 2018 hearing and the January 28, 2019 remand hearing.



                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge


                                           7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jasin Marth,                                 :
                     Petitioner              :
                                             :
               v.                            :
                                             :
Unemployment Compensation                    :
Board of Review,                             :   No. 359 C.D. 2019
                 Respondent                  :


                                       ORDER


               AND NOW, this 7th day of February, 2020, the February 26, 2019
order of the Unemployment Compensation Board of Review (Board) is VACATED,
and this matter is REMANDED to the Board to issue a new decision that takes into
account the testimony offered at both the October 29, 2018 hearing and the January
28, 2019 remand hearing.
               Jurisdiction relinquished.




                                            __________________________________
                                            CHRISTINE FIZZANO CANNON, Judge
