        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joshua Grimm,                              :
                                           :
                    Petitioner             :
                                           :
             v.                            : No. 2265 C.D. 2014
                                           : Submitted: July 10, 2015
Unemployment Compensation                  :
Board of Review,                           :
                                           :
                    Respondent             :



BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                       FILED: October 28, 2015


             Joshua Grimm (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board), which (i) held that he is
ineligible for unemployment compensation benefits under Section 402(b) of the
Unemployment Compensation Law (Law),1 43 P.S. § 802(b); (ii) established a
fault overpayment in the amount of $5,025 subject to repayment under Section
804(a) of the Law, 43 P.S. § 874(a); and (iii) assessed 17 penalty weeks under



1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751–
914.
Section 801(b) of the Law, 43 P.S. § 871(b). For the reasons that follow, we
affirm.
            Following Claimant’s separation from employment with TriState
Biofuels (Employer) in February 2014, Claimant filed for unemployment
compensation benefits beginning with the week ending February 15, 2014 and
continued receiving benefits through the week ending July 5, 2014. (Record Item
(R. Item) 1, Claim Record.) On July 21, 2014, after receiving information from
Employer indicating that Claimant was temporarily laid off for four weeks and
failed to report back to work as expected, the Unemployment Compensation
Service Center (Service Center) issued a notice of determination finding Claimant
ineligible for benefits beginning with the week ending March 8, 2014. (R. Item 6,
Notices of Determination.) The Service Center based its determination on Section
402(b) and Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1), finding that
Claimant voluntarily terminated his employment with Employer without a
necessitous and compelling reason and had failed to provide information to
substantiate that he was able and available for suitable employment. (Id.) In
addition, the Service Center issued two other notices establishing a fault
overpayment of $5,695 under Section 804(a) and imposing 19 penalty weeks under
Section 801(b). (Id.)
            Claimant appealed the Service Center’s determination, and a notice
was issued to the parties on August 8, 2014 indicating that a hearing would be
conducted before a referee on August 22, 2014. (R. Item 7, Petition for Appeal; R.
Item 9, Notice of Hearing.) Claimant did not appear at the hearing; the record
reflects a record of two telephone calls on August 18 and August 22, 2014 in
which he requested a continuance but would not state why a continuance was


                                        2
necessary. (R. Item 10, Report of Aug. 18, 2014 Telephone Call; R. Item 11,
Report of Aug. 22, 2014 Telephone Call.) At the hearing, the referee stated for the
record that he had denied Claimant’s request for a continuance because Claimant
would not give a reason for his request. (R. Item 12, Notes of Testimony (N.T.) at
1.) Norman Thomson, the owner and president of Employer, testified that he and
Claimant had agreed to a temporary layoff from February 14, 2014 to March 14,
2014 and that Claimant did not return to work on March 17, 2014 as expected. (Id.
at 4-5.)
              Following the hearing, the referee issued a decision and order
reversing the determinations of the Service Center. (R. Item 13, Referee
Decision.) The referee found that Claimant had not been called back to work at the
same time as other employees on March 17, 2014 and analyzed the case under
Section 402(e) of the Law, 43 P.S. § 802(e).2 (R. Item 13, Referee Decision,
Findings of Fact (F.F.) ¶¶4-5, Reasoning at 2.)            The referee determined that
Claimant was not ineligible for benefits under Section 402(e) because Employer
had not shown that Claimant had engaged in willful misconduct leading to his
discharge. (R. Item 13, Referee Decision, Reasoning at 2.) The referee further
concluded that Claimant was not ineligible pursuant to Section 401(d)(1) because
there is a presumption that claimants are able and available for suitable work when
filing their initial claim for benefits and Employer had not presented evidence to
show otherwise. (Id.) Because the referee found that Claimant was entitled to



2
  Section 402(e) provides that an employee “shall be ineligible for compensation for any
week...[i]n 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
receive unemployment compensation benefits, the referee also reversed the fault
overpayment and penalty weeks. (R. Item 13, Referee Decision, Reasoning at 3.)
             Employer appealed to the Board, which affirmed in part and reversed
in part. (R. Item 15, Board Decision.) The Board found that Claimant had been
laid off from February 14 to March 14, 2014 and that he did not return to work as
expected on March 17, 2014 or contact Employer. (R. Item 15, Board Decision,
F.F. ¶¶2-4.) The Board concluded that for the weeks ending March 8 and March
15, 2014 – the period prior to Claimant’s recall – Claimant was involuntarily
unemployed and there was no evidence offered that the layoff was a result of
willful misconduct; the Board thus concluded that Claimant was not ineligible for
this period under Section 402(e). (R. Item 15, Board Decision, Reasoning at 2,
Conclusion of Law.) For the period after Claimant’s recall, the Board determined
that Claimant had voluntarily left employment by not returning as requested and
did not appear at the hearing to offer evidence of a necessitous and compelling
reason for not reporting. (R. Item 15, Board Decision, Reasoning at 2.) The Board
thus concluded that Claimant was ineligible for the claim weeks beginning with
March 22, 2014 under Section 402(b).3 (R. Item 15, Board Decision, Reasoning at
2, Conclusion of Law.) The Board also assessed a fault overpayment in the
amount of $5,025 and assessed 17 penalty weeks because Claimant knowingly
withheld the fact that he had been recalled to work on March 17, 2014 and failed to
report this information to the Department of Labor and Industry (Department). (R.



3
  Section 402(b) provides that an employee “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.” 43 P.S. § 802(b).


                                           4
Item 15, Board Decision, Reasoning at 3, Conclusion of Law.) Claimant filed a
timely appeal of the Board’s order to this Court.4
              On appeal, Claimant challenges the Board’s findings that he was
recalled after a one-month layoff. Claimant asserts that when Thomson initially
approached him about the layoff he offered to return after one month but Thomson
did not accept this offer. Claimant argues that instead, Thomson told him that it
would be in his best interest to get another job that required a commercial driver’s
license (CDL) since Claimant intended to enroll in a CDL course following the
layoff.   Claimant asserts that the only agreement he had with Thomson was
Thomson’s promise to give Claimant a reference to work as a driver with another
company after he received his CDL and that Employer never contacted him to
recall him to work prior to the receipt of the notice of determination regarding the
denial of benefits and overpayment.
              The Board is the ultimate finder of fact in unemployment
compensation matters. Peak v. Unemployment Compensation Board of Review,
501 A.2d 1383, 1385 (Pa. 1985). As such, the Board has sole discretion to
determine the credibility of witnesses, resolve conflicts in the evidence and is free
to accept or reject the testimony of any witness in whole or in part. Id. at 1388;
Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481,
483 (Pa. Cmwlth. 2005). This Court must examine the evidence in the light most
favorable to the party who prevailed before the Board and give that party the
benefit of all inferences that can be logically and reasonably drawn from the

4
  Our scope of review of the Board’s decision is limited to determining whether errors of law
were committed, constitutional rights or agency procedures were violated, and necessary
findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Wise v. Unemployment
Compensation Board of Review, 111 A.3d 1256, 1261 n.5 (Pa. Cmwlth. 2015).


                                              5
evidence. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829,
831 (Pa. 1977); Henderson v. Unemployment Compensation Board of Review, 77
A.3d 699, 718 (Pa. Cmwlth. 2013).               Findings of fact by the Board that are
supported by substantial evidence are conclusive on appeal.                            Rossi v.
Unemployment Compensation Board of Review, 676 A.2d 194, 197 n.4 (Pa. 1996);
Aversa v. Unemployment Compensation Board of Review, 52 A.3d 565, 569 n.4
(Pa. Cmwlth. 2012).
               In essence, Claimant argues that his discharge did not convert into a
voluntary separation on March 17, 2014 because, contrary to the Board’s findings,
there had not been an understanding that he would be recalled after one month and
Employer never in fact contacted him to ask him to return to work. However,
Claimant did not appear or testify at the hearing5 and his argument is premised
largely on facts which find no support in the record. In addition, Claimant relies
upon an affidavit attached to his appellate brief from one of his co-workers at
Employer which purports to support Claimant’s account that there was no
agreement for Claimant to be recalled to work in March 2014. As an appellate
court, our review is confined to the record before the Board and we may not
consider documents outside the certified record or factual arguments which find no
support in the record. Grever v. Unemployment Compensation Board of Review,



5
  Claimant does not challenge the fact that the referee denied his two telephonic requests for a
continuance and proceeded with the hearing in Claimant’s absence. We note, however, that the
determination of whether to grant a continuance is within the discretion of the referee, a request
may be granted only upon “proper cause,” and the referee acts appropriately in denying a
continuance where, as here, the claimant provides only vague or unspecified reasons for such a
request. 34 Pa. Code § 101.23; Skowronek v. Unemployment Compensation Board of Review,
921 A.2d 555, 558 (Pa. Cmwlth. 2007).


                                                6
989 A.2d 400, 402 (Pa. Cmwlth. 2010); Pugh v. Workers’ Compensation Appeal
Board (Transpersonnel, Inc.) 858 A.2d 641, 645 n.7 (Pa. Cmwlth. 2004).
            Furthermore, the Board’s findings that Claimant was laid off with the
expectation that he would return on March 17, 2014 and that Claimant did not
return to work as expected or contact Employer are supported by substantial
evidence.   At the hearing, Thomson testified that business was slow prior to
Claimant’s layoff and he was considering eliminating Claimant’s shift but instead
proposed a temporary layoff, which Claimant accepted. (R. Item 12, N.T. at
4.) Thomson testified that Claimant’s last day of work was February 14, 2014 and
he was initially scheduled to be laid off for a four-week period and return on
March 17, 2014. (Id.) Thomson stated that he initially instructed Claimant’s co-
worker and friend to tell Claimant that he should report to work on March 17;
when Claimant did not show up on that date, Thomson telephoned Claimant and
left a voicemail. (Id. at 4-5.) Thomson testified that Claimant never returned to
work and never informed him why he was not returning. (Id. at 5.)
            Claimant argues that Thomson’s testimony was inconsistent and
unreliable, citing an initial statement by Thomson that Claimant was laid off on
February 1, 2014 and his later statement that Claimant was laid off on February 14,
2014.   Claimant also argues that Thomson testified inconsistently regarding
whether or not he spoke directly to Claimant when he telephoned him after he was
expected back on March 17, 2014 or only left a voicemail for Claimant. We reject
this argument; as discussed above, the Board is empowered to resolve any conflicts
in the evidence and we may not interfere with these determinations absent a lack of
substantial evidence. Thomson testified that he informed Claimant that he was
expected to return on March 17, 2014 and Claimant did not do so; this testimony


                                        7
thus provides clear support for the finding that Claimant voluntarily separated from
employment with Employer on that date. Moreover, while Thomson was unclear
regarding the specific day in February when Claimant’s layoff began, the exact
date Claimant was laid off is not determinative in this appeal because the Board
only found that Claimant was ineligible for benefits beginning with the March 22,
2014 claim week, after he had been recalled to work.
            We further conclude that the Board properly determined that Claimant
was ineligible for benefits under Section 402(b) of the Law beginning with the
claim week ending March 22, 2014.            Whether a claimant’s separation from
employment constitutes a voluntary resignation is a question of law subject to this
Court’s plenary review and will be determined from the totality of the facts
surrounding the separation.     Wise v. Unemployment Compensation Board of
Review, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015); Middletown Township v.
Unemployment Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth.
2012). A voluntary separation is not limited to a formal or express resignation and
can be inferred from the claimant’s conduct, but the claimant must show a
“conscious intention to leave his employment.”          Monaco v. Unemployment
Compensation Board of Review, 565 A.2d 127, 129 (Pa. 1989) (quotation omitted);
see also Wise, 111 A.3d at 1263. Thus, though Claimant did not expressly tell
Employer that he was quitting, the Board was permitted to conclude that Claimant
had intentionally and voluntarily separated from Employer because he understood
he was expected to return to work on March 17, 2014 but did not report back or
contact Employer. (R. Item 15, Board Decision F.F. ¶¶2-4.) As Claimant did not
appear at the hearing to offer any evidence, the Board also appropriately
determined Claimant did not have cause of a necessitous and compelling nature for


                                         8
his voluntary separation from Employer. See Middletown Township, 40 A.3d at
227-28 (holding that the claimant has the burden of showing necessitous and
compelling cause for terminating employment).
              Finally, Claimant argues that he was prejudiced by the Department’s
delay of five months in issuing the notices of determination to inform Claimant
that he was ineligible for unemployment compensation benefits and was subject to
a fault overpayment and penalty weeks while he continued to receive benefits.
However, Claimant did not raise this issue of timeliness of the notices before the
referee, and therefore the issue is waived. Grever, 989 A.2d at 402 (“Issues not
raised at the earliest possible time during a proceeding are waived.”). Furthermore,
the Law does not impose a deadline on the Department to issue notices of
determination; instead, Section 501 of the Law requires that the Department
“promptly examine” each claim for benefits and notify the claimant in writing if a
claim is determined to be invalid.6 43 P.S. § 821(c)(1), (2). Here, that is exactly
what happened: the Service Center collected questionnaires from Employer and
Claimant regarding Claimant’s separation and also conducted telephonic
interviews with Employer and Claimant prior to issuing the notices of
determination. (R. Item 2, Claimant Separation Information; R. Item 3, Employer
Separation Information; R. Item 4, Claimant Record of Oral Interview; R. Item 5,
Employer Questionnaire.)




6
  Timely notice is one of the essential elements of due process; however, “timely notice” for the
purpose of procedural due process requires that notice “sufficiently precedes a hearing so as to
give the accused enough time to prepare a defense.” Howell v. Bureau of Professional and
Occupational Affairs, State Board of Psychology, 38 A.3d 1001, 1008 (Pa. Cmwlth. 2011).


                                               9
              Accordingly, the order of the Board finding that Claimant was
ineligible for unemployment compensation benefits under Section 402(b) is
affirmed.7



                                        __________ ___________________________
                                        JAMES GARDNER COLINS, Senior Judge




7
  Because Claimant did not separately challenge the Board’s assessment of a fault overpayment
in the amount of $5,025 and 17 penalty weeks, we therefore also affirm those determinations.
Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth.
1998).


                                             10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joshua Grimm,                       :
                                    :
                 Petitioner         :
                                    :
           v.                       : No. 2265 C.D. 2014
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                 Respondent         :



                                ORDER

           AND NOW, this 28th day of October, 2015, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
