           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth T. Williams,                            :
                              Petitioner        :
                                                :
               v.                               :    No. 1246 C.D. 2018
                                                :    Submitted: February 8, 2019
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: April 11, 2019


               Petitioner Kenneth T. Williams (Claimant) petitions pro se for review
of an order of the Unemployment Compensation Board of Review (Board). The
Board affirmed an Unemployment Compensation Referee’s (Referee) determination
that Claimant was ineligible for benefits under Section 402(b) of the Unemployment
Compensation Law (Law).1 For the reasons set forth below, we now affirm the
Board’s order.



       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 part, that a claimant “shall be ineligible
for compensation for any week” in which the claimant’s “unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.”
              Claimant was employed by Remedy Intelligent Staffing (Employer),2 a
temporary staffing agency until July 27, 2017. When Claimant’s employment
terminated, he applied for unemployment compensation benefits.
              On April 27, 2018, the Harrisburg Overflow Center (Service Center)
issued a Notice of Determination, finding Claimant ineligible for benefits. (Certified
Record (C.R.), Item No. 5.) The Service Center determined that Claimant had
initiated the separation, and it denied him benefits pursuant to Section 402(b) of the
Law. (Id.) The Service Center further determined that Claimant received a fault
overpayment of $4,408 in unemployment compensation benefits. (Id.) The Service
Center informed Claimant that he was required to repay the overpayment amount.
(Id.) Claimant appealed the Service Center’s decision to a Referee. (C.R., Item
No. 6.)
              On May 7, 2018, the Referee provided Claimant notice of his hearing,
scheduled for May 21, 2018. (C.R., Item No. 8.) Neither Claimant nor Employer
appeared at the hearing. (C.R., Item No. 9.) During the hearing, the Referee entered
into the record documents, including various Service Center documents, Claimant’s
petition for appeal, and notice of the hearing. (Id.)
              The Referee affirmed the determination of the Service Center and made
the following findings of fact:




       2
          Claimant asserts in his brief that he was not employed by Employer, but rather he was
employed by RemX Specialty Staffing. (Claimant’s Br. at 12-13.) The claim record, however,
shows that Claimant was employed by Employer, Employer requested relief from charges,
Employer responded to the Pennsylvania Department of Labor and Industry’s inquiries by stating
that Claimant had been employed by it, and Employer informed the Referee that it would not be
participating in the hearing. Nothing in the record suggests that Claimant was employed by RemX.


                                               2
              1.      [Claimant] worked until on or about July 27, 2017.[3]
              2.      [Claimant] voluntarily terminated his employment.
              3.      [Claimant] received unemployment compensation
                      benefits in the total amount of $4,408, beginning
                      with claim week ending August 12, 2017 through
                      claim week ending September 30, 2017.
              4.      The Service Center imposed a fault overpayment of
                      benefits against [Claimant].

(C.R., Item No. 11.) Based on these findings of fact, the Referee determined that
Claimant was ineligible for unemployment compensation benefits and that he had
received a fault overpayment pursuant to Section 804(a) of the Law.4 (Id.) The
Referee noted that her determination was based on a review of the documentary
evidence, as Claimant did not appear to testify. (Id.) The Referee concluded that
the record indicated that Claimant voluntarily terminated his employment and that
nothing in the record indicated Claimant had a necessitous and compelling reason
for doing so. (Id.)
               On May 23, 2018, Claimant emailed the Referee’s office to reschedule
the hearing. (C.R., Item No. 10.) The Referee’s office informed Claimant that once
the hearing has occurred, it cannot be rescheduled and that Claimant can appeal the
Referee’s decision. (Id.)
               Claimant appealed the Referee’s decision to the Board. (C.R., Item
No. 12.) The Board, after review of the record, adopted with modification the
Referee’s findings of fact and conclusions of law. (C.R., Item No. 13.) In so doing,

       3
        According to Employer’s Separation Response, Claimant became employed by Employer
on January 4, 2016. (C.R., Item No. 3.)
       4
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 874(a). Section 804(a) of the Law, pertaining to fault overpayments, requires a claimant
to repay the fault overpayment with interest.


                                                3
the Board concluded that the Referee correctly determined that Claimant was
ineligible for unemployment compensation benefits under Section 402(b) of the
Law. (Id.) The Board, however, disagreed with the Referee’s decision to assess a
fault overpayment. (Id.) The Board concluded that Claimant’s overpayment was
non-fault under Section 804(b) of the Law,5 because there was insufficient evidence
in the record to indicate fault on behalf of Claimant. (Id.) The Board also concluded
that a remand for additional evidence was not necessary, as Claimant did not advance
proper cause for his nonappearance at the hearing. Accordingly, the Board affirmed
the decision of the Referee as modified, denying benefits and noting a non-fault
overpayment of $4,408, subject to recoupment. (Id.)
              Claimant now petitions this Court for review. On appeal,6 Claimant
argues that the Board erred in concluding that Claimant voluntarily quit his
employment without a necessitous and compelling reason, because his assignment
ended at the John Middletown Company’s plant in Limerick, Pennsylvania, due to
the plant’s closure, and he notified Employer of his last day of employment.




       5
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 874(b). Section 804(b)(1) of the Law, pertaining to non-fault overpayments, does not
require a claimant to repay the non-fault overpayment. Rather, Section 804(b)(1) of the Law,
provides, in part:
       Any person who other than by reason of his fault has received with respect to a
       benefit year any sum as compensation under this act to which he was not entitled
       shall not be liable to repay such sum but shall be liable to have such sum deducted
       from any future compensation payable to him with respect to such benefit year, or
       the three-year period immediately following such benefit year, in accordance with
       the provisions of this paragraph.
       6
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               4
             Whether a claimant’s separation from employment is the result of a
voluntary action or a discharge is a question of law subject to review by this Court
and must be determined from a totality of the facts surrounding the cessation of
employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412
(Pa. Cmwlth. 1996). A claimant voluntarily terminates his employment when he
resigns, leaves, or quits his employment without action by the employer. Roberts v.
Unemployment Comp. Bd. of Review, 432 A.2d 646, 648 (Pa. Cmwlth. 1981).
“Employees of temporary staffing agencies who fail to follow the employer agency’s
policies regarding work availability will be considered to have voluntarily quit
‘work.’” Thiessen v. Unemployment Comp. Bd. of Review, 178 A.3d 255, 261 (Pa.
Cmwlth.), appeal denied, 194 A.3d 554 (Pa. 2018).
             Employer, through its representative, Equifax, as part of its “Employer
Separation Response,” reported to the Service Center that Claimant had voluntarily
quit a temporary position after failing to maintain contact with Employer for further
assignment after he had completed an earlier assignment, as required by Employer’s
policies. (C.R., Item No. 3, letter from Equifax, dated March 28, 2018.) Claimant
did not provide any information to the Service Center in response to the
questionnaire sent to him by the Service Center. (C.R., Item No. 4.) Given that
neither Employer nor Claimant appeared at the hearing, the Referee considered the
written information provided to her—i.e., the evidence contained in the record—and
found that Claimant had voluntarily terminated his employment.
             Nevertheless, pursuant to Section 402(b) of the Law, a claimant who
voluntarily quits his employment may be eligible for unemployment compensation
benefits if he voluntarily quit for cause of a necessitous and compelling nature.
Whether a claimant had cause of a necessitous and compelling nature for leaving his


                                         5
employment is a question of law subject to this Court’s review.                       Wasko v.
Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). A
claimant who voluntarily quits his employment bears the burden of proving that
necessitous       and       compelling        reasons       motivated        that      decision.
Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129
(Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999).
               Here, Claimant argues that he did not voluntarily quit, because when
his assignment ended as a result of the plant closure, he informed Employer of the
status of his assignment. This argument, however, is not supported by the record.
The only evidence in the record before the Referee and Board indicated that
Claimant voluntarily left his employment when he failed to keep in contact with
Employer after completing an assignment. Claimant offered into the record no
evidence to the contrary. As a result, the Board did not err when it concluded that
Claimant failed to establish cause of a necessitous and compelling nature for
voluntarily leaving his employment.7
               Accordingly, we affirm the order of the Board.




                                                P. KEVIN BROBSON, Judge




       7
          Although Claimant attached documents to his brief to this Court, purporting to establish
that his assignment at the John Middletown Company’s plant ended due to the closure of the plant
and that he notified Employer of the date of his last day of employment, the Court is precluded
from considering those documents on appeal. See Croft v. Unemployment Comp. Bd. of Review,
662 A.2d 24, 28 (Pa. Cmwlth. 1995) (“This Court may not consider auxiliary information
appended to a brief that is not part of the certified record on appeal.”).

                                                6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kenneth T. Williams,                  :
                       Petitioner     :
                                      :
           v.                         :   No. 1246 C.D. 2018
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


           AND NOW, this 11th day of April, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
