         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Ames,                                    :
                                              :
                     Petitioner               :
                                              :
              v.                              : No. 2421 C.D. 2015
                                              : Submitted: April 22, 2016
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                     Respondent               :

BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                                FILED: June 3, 2016

              Eric Ames (Claimant), pro se, petitions for review of the October 13,
2015 order of the Unemployment Compensation Board of Review (Board) denying
Claimant unemployment compensation benefits.                 The Board concluded that
Claimant voluntarily left his employment with On Time Delivery (Employer)
without a necessitous and compelling reason and was therefore disqualified from
receiving benefits under Section 402(b) of the Unemployment Compensation Law
(Law).1 We affirm.
              Claimant’s last day of work was June 4, 2015. (Record Item (R. Item)
1, Claim Record.)        On June 11, 2015, Claimant completed a questionnaire


1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for
compensation for any week in which his or her unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.
regarding his separation from employment by telephone with the Department of
Labor and Industry (Department). (R. Item 2, Claimant Questionnaire.) The
Department issued a Notice of Determination on June 25, 2015 finding Claimant
ineligible to receive unemployment benefits because Claimant failed to show that
he had a necessitous and compelling reason to voluntarily terminate his
employment.    (R. Item 4, Notice of Determination.)       Claimant appealed the
Department’s determination and a hearing was held before a Referee on August 3,
2015. (R. Item 5, Petition to Appeal; R. Item 9, Hearing Transcript (H.T.).) At the
hearing, Claimant appeared and testified; two witnesses, Christopher Jenkins,
President, and David Liddell, LTL Director, appeared on behalf of Employer and
testified. (R. Item 9, H.T. at 1, 5, 7, 10.) On August 4, 2015, the Referee issued a
decision and order concluding that Claimant had failed to meet his burden to
demonstrate that he left his employment for a necessitous and compelling reason.
(R. Item 10, Referee’s Decision and Order.) Claimant appealed to the Board for
review and on October 13, 2015, the Board issued an order affirming the Referee.
(R. Item 12, Board’s Decision and Order.) In its order, the Board adopted and
incorporated the Referee’s findings of fact and conclusions of law. (Id.) The
following are the Referee’s findings of fact adopted and incorporated by the Board:

            1. [Claimant] worked for [Employer] as Amazon
            Manager, full-time, from November 2014 until his last
            day of work, June 4, 2015. [ ]

            2. [Claimant] was hired on a job with a start time of 1:30
            a.m.

            3. [Claimant] was informed when he started the job that
            part of his job would involve driving, although he would
            also be managing drivers.


                                         2
            4. Given that the start time for the job was 1:30 a.m., if
            [Claimant] was going to be driving, he would be driving
            at night.

            5. [Claimant] began to request [Employer] not to assign
            him to drive, especially at night.

            6. [Claimant] contended that he had problems seeing to
            drive at night.

            7. [Employer] asked [Claimant] to get his eyes checked,
            and to provide [Employer] documentation relative to any
            difficulties which he had driving at night.

            8. [Claimant] did not go to get his eyes checked, and did
            not provide [Employer] with any documentation
            regarding difficulties driving at night.

            9.    [Claimant] has passed the Department of
            Transportation [(DOT)] Eye Tests required for a driving
            job.

            10. The last two months that [Claimant] worked, he
            drove nine out of thirty-four work days.

            11. [Claimant] voluntarily left his employment because
            he was dissatisfied with the amount of driving which he
            was required to do.

            12. If [Claimant] had not voluntarily left, continuing
            work was available for him.

(R. Item 10, Referee’s Decision and Order, Findings of Fact (F.F.) ¶¶1-12.) In the
decision adopted by the Board, the Referee also credited the testimony of
Employer’s witness, Mr. Jenkins, and found that Claimant was not credible,
stating:

            A resolution in this case depends upon an assessment of
            credibility. The Referee credits [Employer’s] testimony

                                        3
              that [Claimant] was hired with the understanding that he
              would be doing a substantial amount of driving, in
              addition to managerial work. The Referee finds that the
              amount of driving which [Claimant] was performing at
              the end of his employment was not substantial. The
              Referee does not credit [Claimant’s] testimony that he
              was having any more problems driving at night than any
              other individual would have. The Referee notes that
              [Claimant] did not provide any documentation to
              [Employer] regarding any night vision problems, and that
              he testified that he had passed the DOT Eye Test.

(Id. Discussion at 2.) Claimant timely petitioned this Court for review of the
Board’s order.2
              Claimant argues before this Court that the Referee erred in finding
that Employer was forthright with Claimant about the amount of driving that
would be required of Claimant as a part of his employment.
              A claimant who voluntarily terminates his employment has the burden
of proving that he had a necessitous and compelling reason. Philadelphia Housing
Authority v. Unemployment Compensation Board of Review, 29 A.3d 99, 101 (Pa.
Cmwlth. 2011). In order to carry his burden, a claimant must demonstrate 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 employment. PECO Energy
Company v. Unemployment Compensation Board of Review, 682 A.2d 49, 51 n. 1
(Pa. Cmwlth. 1996). An employer’s unilateral imposition of a real and substantial

2
  In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of facts are supported by substantial evidence. Section 704 of
the Administrative Agency Law, 2 Pa. C.S. § 704; On Line Inc. v. Unemployment Compensation
Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
                                              4
change in the terms and conditions of employment constitutes a necessitous and
compelling reason for a claimant to voluntarily terminate employment. Morgan v.
Unemployment Compensation Board of Review, 108 A.3d 181, 187 (Pa. Cmwlth.
2015).
             In reviewing an unemployment compensation decision, the legal
conclusions reached by the Board based on its findings of fact are subject to this
Court’s plenary review; however, the Board is the ultimate finder of fact,
empowered to make credibility determinations and accept or reject the testimony
of witnesses, in whole or in part, as well as to weigh the evidence in making its
findings. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383,
1388 (Pa. 1985). Where supported by substantial evidence, the Board’s findings
are conclusive on appeal.     Taylor v. Unemployment Compensation Board of
Review, 378 A.2d 829, 831 (Pa. 1977). Substantial evidence is such relevant
evidence that a reasonable mind might consider adequate to support a conclusion.
Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255
(Pa. Cmwlth. 2001).
             In the instant matter, the Referee found that Claimant was informed
that his job would involve driving and that it would involve driving at night. (R.
Item 10, F.F. ¶¶3-4.) The Referee credited the testimony of Employer’s witness,
Mr. Jenkins, who stated that it “was communicated to [Claimant] at the interview
that he would be driving at least half the time. His start time was 1:30 a.m. It does
involve night driving. During his last two months of work he drove 9 routes out of
the 34 workdays.” (R. Item 9, H.T. at 7; R. Item 10, Discussion at 2.) The Referee
did not credit Claimant’s testimony that he “wasn’t hired to drive.” (R. Item 9,
H.T. at 15.) The Referee’s findings, adopted by the Board as its own, were based


                                         5
on credible testimony in the record. This credible testimony is such relevant
evidence that a reasonable mind might consider as adequate to support a
conclusion.    Therefore, the Referee’s findings are supported by substantial
evidence and because the Referee’s findings were adopted by the Board, these
findings are conclusive on appeal.
              Claimant’s argument asks this Court to review the testimony before
the Referee and make our own findings and credibility determinations, ones which
would credit and support Claimant’s version of events. What Claimant asks of this
Court is not a proper function of our review of unemployment compensation
matters. Tapco v. Unemployment Compensation Board of Review, 650 A.2d 1106,
1109 (Pa. Cmwlth. 1994) (the fact that a claimant may have “a different version of
the events, or that [a claimant] might view the testimony differently than the
Board, is not grounds for reversal if substantial evidence supports the Board’s
findings.”). Based on the findings of fact made by the Referee and adopted by the
Board, Claimant has not met his burden to establish that circumstances existed
which produced real and substantial pressure to terminate employment and such
circumstances would compel a reasonable person to act in the same manner as
Claimant.
              Accordingly, the order of the Board is affirmed.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Ames,                          :
                                    :
                  Petitioner        :
                                    :
             v.                     : No. 2421 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                  Respondent        :



                               ORDER


             AND NOW, this 3rd day of June, 2016, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.


                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
