           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald W. Emert, Jr.,                         :
                             Petitioner       :
                                              :
                v.                            :   No. 230 C.D. 2016
                                              :   Submitted: July 29, 2016
Unemployment Compensation Board               :
of Review,                                    :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: September 1, 2016

                Ronald W. Emert, Jr. (Claimant), representing himself, petitions for
review from an order of the Unemployment Compensation Board of Review
(Board) that denied him unemployment compensation (UC) benefits under Section
402(b) of the UC Law (Law) (voluntary quit).1 Claimant contends the Board erred
in determining he voluntarily quit his employment with Derby Landscaping, Inc.
(Employer). Upon review, we affirm.


                                      I. Background
                Claimant worked for Employer as a full-time laborer. His last day of
work was August 6, 2015. On August 17, Claimant returned to work after a
vacation, and he met with Daniel M. Derby, Employer’s President and Owner
(Owner). During the meeting, Owner issued Claimant a written reprimand that

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).
outlined several issues with Claimant’s work performance.          Owner provided
Claimant a written reprimand in an effort to correct his performance issues and to
allow Claimant to “improve the quality of [his] work and attention to detail.”
Certified Record (C.R.), Item No. 10, Ex. Emp. 1 (written reprimand, 8/6/15), at 1.
Owner also discussed with Claimant the fact that he knew Claimant was not at
certain job sites when he claimed to be because the Employer-provided truck
contained a Global Positioning System (GPS) tracking device.


             Claimant replied he no longer worked for Employer and would collect
unemployment. Employer did not respond to this statement. Claimant then took
out his Employer-provided cell phone and began deleting personal information.
Out of fear Claimant would damage the phone, Employer attempted to grab the
phone from Claimant. A scuffle ensued. Police were called. While no charges
were filed against either party, police escorted Claimant from the premises.


             Thereafter, Claimant applied for UC benefits, which a local service
center denied. Claimant appealed, and a referee’s hearing followed.


             At the hearing, Employer was represented by counsel; Claimant was
unrepresented. Claimant testified regarding the nature of his job responsibilities
with Employer.     Claimant further testified Owner terminated his employment
because he was not a profitable employee. Claimant then read the police report
regarding the scuffle into the record.




                                         2
            On cross-examination, Claimant admitted to concurrently operating
his own independent landscaping business while working for Employer. Claimant
also admitted he performed work for his own business while working for
Employer, and his business is no longer in operation.


            For his part, Owner testified he issued Claimant a written reprimand
in an effort to inform Claimant of issues with his work performance and to allow
Claimant to make improvements in those areas.           Owner detailed several of
Claimant’s work-related performance issues.      When Owner would attempt to
correct Claimant’s work performance verbally, Claimant would become combative
and aggressive. Owner told Claimant that Employer’s trucks were equipped with
GPS tracking devices, and, therefore, he knew Claimant was not on certain job
sites as expected. Claimant replied he no longer worked for Employer, and he
would just collect unemployment. Owner and Claimant scuffled for possession of
an Employer-issued cell phone. When Owner recovered the phone, he learned
Claimant used Employer’s resources for his own landscaping business.


            Employer’s office manager, Mary Derby (Office Manager), also
testified for Employer. Office Manager explained how information retrieved from
the Employer-issued cell phone revealed multiple instances of Claimant using
Employer’s tools, materials and resources for his own landscaping business.


            Employer presented an additional witness, Ethan Derby (Son),
Owner’s son, who works as a laborer with Employer. Son testified he witnessed




                                         3
the events of August 17, and he confirmed Owner accurately described those
events.


              After the hearing, the referee found Claimant ineligible for benefits
under Section 402(b) of the UC Law. The referee determined, among other things,
substantial evidence supported a finding that Owner desired a continuing
employment relationship with Claimant at the time of the August 17 meeting, that
Owner did not discharge Claimant, and that Owner did not possess the intent to do
so. Further, the referee found Claimant voluntarily resigned his employment by
virtue of his statements to Owner.


              On Claimant’s appeal, the Board made its own findings, and it
affirmed the referee. Claimant now petitions for review to this Court.


                                          II. Issue
              On appeal,2 Claimant contends the record does not contain substantial
evidence to show he voluntarily quit his employment; rather, Owner terminated
Claimant’s employment. In support, Claimant relies exclusively on excerpts from
the police report filed after the scuffle. Certified Record (C.R.), Item No. 10, Ex.
Clmt-1 (police report, dated 8/17/15), at 4.




       2
         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).

                                              4
                                 III. Discussion
            In UC cases, the Board is the ultimate fact-finder.          Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
As such, issues of credibility and the evidentiary weight given to conflicting
testimony are within the Board’s exclusive province. Id. The Board may reject the
testimony of the claimant if it concludes his testimony is not worthy of belief.
Adams v. Unemployment Comp. Bd. of Review, 373 A.2d 1383 (Pa. Cmwlth.
1977). Further, this Court must view the record in the light most favorable to the
party prevailing before the Board.     Sanders v. Unemployment Comp. Bd. of
Review, 739 A.2d 616 (Pa. Cmwlth. 1999). We must give that party the benefit of
all reasonable inferences that can be drawn from the evidence. Id.


            In addition, “[t]he fact that [a party] may have produced witnesses
who gave a different version of the events, or that [the party] might view the
testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board's findings.” Tapco, Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Thus, it is irrelevant
whether the record contains substantial evidence to support findings other than
those made by the Board; the critical inquiry is whether there is substantial
evidence to support the findings actually made. Wise v. Unemployment Comp.
Bd. of Review, 111 A.3d 1256 (Pa. Cmwlth. 2015); Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).


            Section 402(b) of the Law states that a claimant shall be ineligible for
UC benefits when he voluntarily terminates his employment without necessitous
and compelling cause.      43 P.S. §802(b).      Whether a claimant voluntarily

                                        5
terminated his employment 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).


             A voluntary quit requires a finding that the claimant had a conscious
intention to leave his employment. Procyson v. Unemployment Comp. Bd. of
Review, 4 A.3d 1124 (Pa. Cmwlth. 2010). In determining a claimant’s intent, this
Court must consider the totality of the circumstances surrounding the incident. Id.


             Further, a claimant bears the burden of proving the separation is the
result of a discharge. Norman Ashton Klinger & Assoc. v. Unemployment Comp.
Bd. of Review, 561 A.2d 841 (Pa. Cmwlth. 1989). For an employer’s statement to
be interpreted as a discharge, the “language must possess the immediacy and
finality of firing.” Fishel, 674 A.2d at 772. Statements such as “pick up your
pay,” “turn in your key,” “pull your time card,” “turn in your uniform,” and
“there’s the door” possess the finality of a firing. Rizzitano v. Unemployment
Comp. Bd. of Review, 377 A.2d 1060, 1061 (Pa. Cmwlth. 1977).


             In contrast, where an employer’s statement presents a claimant with
the option of maintaining the employment relationship, this Court does not find a
termination. See e.g., Lawlor v. Unemployment Comp. Bd. of Review, 391 A.2d 8
(Pa. Cmwlth. 1978) (holding that employer’s advice to claimant that he either
change his attitude toward his supervisor or make a decision as to what he was
going to do, lacked the immediacy and finality of a firing).



                                          6
            Here, the Board made the following relevant findings:

            2. On August 6, 2015, [Owner] issued [C]laimant a written
            warning expressing dissatisfaction with various facets of
            [C]laimant’s work performance as well as his demeanor at
            work.

            3. [C]laimant then went on vacation.

            4. When [C]laimant returned from his vacation on August 17,
            2015, [Owner] met with him and started discussing additional
            deficiencies.

            5. [Owner], however, had no intention of discharging
            [C]laimant.

            6. [C]laimant became increasingly upset and he stated he was
            no longer working for [E]mployer and he was going to collect
            unemployment.

            7. At that point, [C]laimant quickly pulled out his [E]mployer
            provided cell phone and started deleting personal information
            from the phone.

            8. [Owner] feared [C]laimant was trying to damage the phone
            so he grabbed for it and a scuffle ensued.

            9. [Owner] was knocked to the floor and suffered minor
            injuries.

            10. The police were called, however, no charges were filed
            against either party.

            11. [C]laimant alleges he had no intention of quitting his
            position and when he allegedly asked if he was going to be let
            go at the end of the conversation [E]mployer responded ‘yes.’

Bd. Op., 12/16/15, Findings of Fact (F.F.) Nos. 2-11 (emphasis added). The Board
further determined (with emphasis added):




                                       7
            Based upon the above [f]indings, which are supported by
            [E]mployer’s [witnesses’] credible testimony and evidence, the
            Board concludes that [C]laimant quit his position. [C]laimant
            expressed the necessary intent when he said during the August
            17, 2015 meeting, that he was no longer working for
            [E]mployer and he was going to collect unemployment. Since
            [C]laimant only asserts that he was discharged, he has not
            demonstrated necessitous and compelling cause for quitting his
            position. Therefore, benefits are denied under Section 402(b)
            of the Law.

Bd. Op. at 2. The credible evidence supports the Board’s determination that
Claimant voluntarily quit his employment with Employer.


            To that end, Owner testified he did not intend to terminate Claimant
on August 17, and continuing work was “[a]bsolutely” available. Referee’s Hr’g,
Notes of Testimony (N.T.), 9/25/15, at 11, 15. Owner confronted Claimant over
timesheets which indicated Claimant was present on certain job sites when, in fact,
he was not. According to Owner, Claimant responded, “so I don’t work here
anymore[,] I’ll just collect unemployment.” N.T. at 11.       The Board credited
Owner’s testimony. Bd. Op. at 2.


            Further, Employer’s written reprimand to Claimant, which initiated
the August 17 meeting, showed Owner wished to provide Claimant “the
opportunity to improve the quality of [his] work and attention to detail.” C.R.,
Item No. 10, Ex. Emp. 1at 1. In light of Employer’s credited evidence, the Board
rejected Claimant’s testimony that Employer intended to terminate his
employment.




                                        8
              In addition, the Board chose not to rely on the out-of-court statements
in the reporting officer’s narrative in the police report, but instead chose to rely on
Owner’s first-hand account of Claimant’s separation from employment. No error
is apparent in this regard. Oliver.3


              Moreover, as the Board stated, Claimant does not assert he had
necessitous and compelling cause to quit his employment.                    Thus, the Board
properly determined he was ineligible for UC benefits under Section 402(b) of the
Law.


              Accordingly, we affirm.




                                            ROBERT SIMPSON, Judge




       3
          In any event, the statements set forth in the reporting officer’s narrative, upon which
Claimant relies exclusively, do not indicate the immediacy and finality of a firing. See C.R.,
Item No. 10, Ex. Clmt-1 (police report, dated 8/17/15), at 4 (“While speaking with [Owner] I
learned that he met with a former employee, [Claimant] prior to my arrival to discuss subpar
work performance and to consider termination of [Claimant]. … I next spoke with [Son] … He
stated that he and his father were speaking with [Claimant] regarding his future with the
company at which time [Claimant], (possibly sensing he was about to be terminated) pulled out
his cellular phone (owned by [Employer]) and began to delete personal information from the
phone. I then spoke with [Claimant] who stated that he felt as if he were being terminated ….”)
(Emphasis added).

                                               9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald W. Emert, Jr.,                  :
                        Petitioner     :
                                       :
            v.                         :   No. 230 C.D. 2016
                                       :
Unemployment Compensation Board        :
Of Review                              :
                    Respondent         :

                                     ORDER

            AND NOW, this 1st day of September, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      ROBERT SIMPSON, Judge
