          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vital Support Home Health                  :
Care Agency, Inc.,                         :
                   Petitioner              :
                                           :
             v.                            :   No. 415 C.D. 2016
                                           :   SUBMITTED: September 30, 2016
Unemployment Compensation                  :
Board of Review,                           :
                 Respondent                :



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                FILED: February 24, 2017


             Employer, Vital Support Home Health Care Agency, Inc., petitions
for review of an order of the Unemployment Compensation Board of Review that
reversed a referee’s decision denying Claimant Jeniffer Santiago unemployment
compensation benefits under Section 402(b) of the Unemployment Compensation
Law (Law).1 Section 402(b) provides that an employee is ineligible for benefits
during any week “[i]n which his [or her] unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.” We affirm.

    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
             The facts as found by the Board are as follows. Claimant worked as a
full-time home health aide for Employer at an hourly rate of $10 from July 2014 to
February 2015. Board’s March 8, 2016, Decision, Finding of Fact (F.F.) No. 1.
During that time period, Claimant had a steady schedule with the same client and
her husband was the primary caretaker of their three children. Id., Nos. 3 and 4.
On February 8, 2015, however, that client moved to Ohio and no longer required
Claimant’s services. Id., No. 2. Although Employer offered Claimant more work
thereafter, it advised her that the work would be on an on-call basis and that it
could provide her with approximately only “an hour of advance notice that she
would have to work that day and that notice could come at any time during the
day.” Id., No. 6. This presented a problem for Claimant because, approximately
two weeks before she resigned, her husband secured a job working the night shift
from 10:00 p.m. to 6:00 a.m. Id., No. 5. Although she attempted to find someone
who could provide childcare on such short notice, she was unable to do so. Id.,
No. 7. In addition, even though she asked Employer for a steady schedule for
purposes of arranging childcare, Employer could not provide her with such a
schedule. Id., No. 8. Accordingly, Claimant voluntarily quit due to childcare
issues. Id., No. 9.
             Subsequently, Claimant applied for unemployment compensation
benefits, which the UC Service Center denied. Before the referee, Claimant, with
counsel and an interpreter, presented testimony in support of her position.
Employer, also with counsel, presented the testimony of two witnesses: office
coordinator Ms. Francheska Jimenez and office manager Ms. Vitaliya
Gerasimenko. The referee affirmed the ineligibility determination, (1) accepting
Employer’s position that, after her previous client moved, it provided Claimant



                                        2
with permanent work and had a great deal of work available for her; and (2)
concluding that Claimant failed to bring her “childcare issues to Employer’s
attention to try to work out a schedule that she could handle[,]” and, therefore,
failed to exhaust all reasonable alternatives.    Referee’s November 12, 2015,
Decision at 3; Reproduced Record (R.R.) at 76a.          The Board reversed, (1)
accepting Claimant’s testimony that Employer advised her that it could offer her
work only on an on-call basis and that she would have only about an hour to find
childcare; and (2) rejecting the testimony of Employer’s witness that it offered her
a steady schedule. Board’s March 8, 2016, Decision at 2. Employer’s timely
petition for review followed.
               Pursuant to Section 504 of the Law,2 the Board may reverse a
referee’s determination without taking new evidence. As the ultimate finder of
fact, it is within the Board’s purview to resolve all conflicts in evidence and to
determine witness credibility and evidentiary weight.      Peak v. Unemployment
Comp. Bd. of Review, 501 A.2d 1383, 1389 (Pa. 1985); Chapman v.
Unemployment Comp. Bd. of Review, 20 A.3d 603, 608 (Pa. Cmwlth. 2011). It is,
therefore, irrelevant that a record contains evidence to support findings other than
those made by the fact-finder; the critical inquiry is whether there is evidence to
support the actual findings. Chapman, 20 A.3d at 609. In that regard, the facts as
found by the Board are conclusive on appeal as long as the record, in its entirety,
contains substantial evidence to support those findings. Id. at 608. “Substantial
evidence is relevant evidence that a reasonable mind might consider adequate to
support a conclusion.” Popoleo v. Unemployment Comp. Bd. of Review, 777 A.2d
1252, 1255 (Pa. Cmwlth. 2001).

   2
       43 P.S. § 824.



                                         3
              Moreover, where a voluntary termination is at issue, the claimant
bears the burden of proving necessitous and compelling cause for leaving his or her
job.3 Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of
Review, 906 A.2d 657 (Pa. Cmwlth. 2006). In order to show such cause, the
claimant must establish that: “(1) circumstances existed which 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 or] her employment.” Id. at 660. The inability to find childcare on short
notice, with communication to the employer, may constitute a necessitous and
compelling cause for voluntarily terminating employment. Truitt v. Unemployment
Comp. Bd. of Review, 589 A.2d 208, 210 (Pa. 1991); Blakely v. Unemployment
Comp. Bd. of Review, 464 A.2d 695, 696 (Pa. Cmwlth. 1983). However, generally
in order to justify quitting based on lack of childcare, a claimant must establish that
he or she exhausted all other alternative childcare arrangements before voluntarily
terminating employment. Beachem v. Unemployment Comp. Bd. of Review, 760
A.2d 68, 72 (Pa. Cmwlth. 2000).
              In the present case, Employer argues that the Board made fact-
findings that were against the weight of the testimony and evidence presented at
the hearing and, therefore, improperly ignored the facts found by the referee.
Specifically, Employer maintains that there is no substantial evidence to support
the Board’s finding that Claimant asked Employer for a steady schedule for


    3
       A determination of whether necessitous and compelling cause for leaving employment
exists is a question of law, subject to plenary review by this Court. Johnson v. Unemployment
Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).



                                             4
purposes of arranging childcare but that it could not provide her with such a
schedule.   Employer asserts that, to the contrary, the evidence supports a
determination that it provided Claimant with a steady schedule after her client
moved and that it had additional clients with steady schedules that it could have
provided to her. Employer’s position is without merit.
            Contrary to the testimony of Employer’s witnesses, Claimant testified
several times that she advised Employer of her childcare issues and need for a
steady schedule. Claimant’s testimony, which the Board credited, is as follows:

            [Claimant’s attorney] CL: Did you talk with Vital about
            this problem that you had with childcare?
            [Claimant] C: Yes.
            CL:      And did you ask them for some sort of
            accommodation that would help you?
            C: Yes.
            CL: What did you ask? What did you ask them for?
            C: I asked them to give me a steady schedule.
            CL: Okay. And how would a steady schedule have
            helped you?
            C: Well, with a steady schedule, I could find somebody
            to help me with my kids.
            CL: Okay.
            C: Did you explain to whoever you were talking to that
            it was your family situation with the children that made it
            difficult for you to start on such short notice?
            C: Correct.
            [Referee]: Who did you tell?
            C: Well, the people that used to call me; they were
            several different people. And I also communicated this
            to Evelyn [as per Claimant, Evelyn sat at the front desk
            and acted as coordinator]. She was the person that I had
            more, the most communication with.
                                         ....

                                        5
             CL: . . . Do you remember speaking with Ms. Jimenez
             about your work with Vital?
             C: I don’t remember spoken [sic] to her because on the
             phone they don’t identify themselves.
             CL: Okay. So it’s -- and I’m talking about February of
             2015, after your client left, it’s possible that you spoke
             with her on the phone?
             C: Yes, it is possible.
             CL: And when you spoke with every single person that
             you spoke to on the phone, did you raise this issue of
             childcare?
             C: Correct.
             CL: Okay. But you are aware that you specifically
             spoke with somebody named Beatrice (sic) in this time
             period? Actually, not -- Evelyn? So you are certain that
             you spoke with her during this time period, Evelyn?
             C: Yes.
November 10, 2015, Hearing, Notes of Testimony (N.T.) at 12 and 38; R.R. at 39a
and 65a (emphasis added).
             In addition, the Board accepted Claimant’s testimony that, when she
advised Employer after her client moved that she wanted to continue working,
Evelyn advised her that she had to be on-call with advance notice of only an hour
before start time. Id. at 9-10; R.R. at 36-37a. In that regard, the Board also
accepted Claimant’s testimony that she attempted to make alternate childcare
arrangements but was unable to find someone who would be available on such
short notice.   Board’s March 8, 2016, Decision at 2.         Specifically, Claimant
testified that she had no family in the area, that she contacted several neighbors and
people that she knew and trusted, and that commercial childcare centers were too
expensive. November 10, 2015, Hearing, N.T. at 11-12, 14-15, and 17-18; R.R. at
38-39a, 41-42a, and 44-45a. See Truitt, 589 A.2d at 210 (holding that, after a
reasonable person exhausts alternatives for available childcare on short notice,

                                          6
“[t]here is nothing more that we can or should ask of an employee before that
employee terminates his or her employment.”).
             In rejecting Employer’s assertions, we conclude that they are
tantamount to an improper credibility challenge and not a substantial evidence
challenge. In any event, we note that while Ms. Jimenez asserted that she herself
was the only employee who spoke directly with Claimant regarding the relevant
issues and had no idea that Evelyn’s testimony would be necessary, Ms. Jimenez at
the same time admitted that, (1) Claimant could have spoken to Evelyn; (2)
Employer kept a computerized record of all of the conversations that it had with its
employees from which it easily could have printed out a call log for Claimant; and
(3) Employer neglected to bring such a log to the hearing. November 10, 2015,
Hearing, N.T. at 35-37 and 39; R.R. at 62-64a and 66a. It was for the Board, as the
ultimate fact-finder, to resolve the conflicting testimony and to weigh the evidence.
In addition, where, as here, Claimant prevailed, we are bound to view the evidence,
and every reasonable inference deducible therefrom, in the light most favorable to
her as the prevailing party. Chapman, 20 A.3d at 607.
             Accordingly, we affirm the Board’s grant of benefits.


                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vital Support Home Health         :
Care Agency, Inc.,                :
                                  :
                 Petitioner       :
                                  :
           v.                     :   No. 415 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :



                              ORDER


           AND NOW, this 24th day of February, 2017, order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.



                                _____________________________________
                                BONNIE BRIGANCE LEADBETTER,
                                Senior Judge
