           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Pollice,                            :
                      Petitioner            :
                                            :
              v.                            : No. 384 C.D. 2015
                                            : Submitted: October 23, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                                  FILED: November 16, 2015


              Michael Pollice (Claimant) petitions for review of the order of the
Unemployment Compensation Board of Review (Board) finding him ineligible for
benefits under Section 402(b) of the Unemployment Compensation Law (Law)1




       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 802(b) provides that “[a]n employe 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, irrespective of whether or not such work is in ‘employment’
as defined in this act[.]”
because he voluntarily quit his employment with Domenico’s Ristorante
(Employer)2 for cause that is not necessitous or compelling. We affirm.


              Since 1998, Claimant was employed as a manager by Employer’s
restaurant owned by his sister and brother-in-law, Patricia Lombardo and Dominic
Lombardo. Claimant and his sister are next-door neighbors and Claimant lives
with and cares for their mother who has dementia. Claimant had an argument with
his sister because he told his nephews that their father, his brother-in-law, had
“cheated” the IRS 20 years ago. During the argument, Claimant’s sister left his
home. Claimant followed his sister outside, threw his work keys over the fence
and into his sister’s swimming pool, and said, “I quit.” When Claimant went to the
restaurant the next day, he was refused entrance by his brother-in-law.


              Claimant filed a claim and the UC Service Center granted benefits,
accepting Claimant’s assertion that he had been discharged and that Employer had
failed to show that he engaged in disqualifying willful misconduct under Section
402(e) of the Law.3 Employer appealed and a hearing was scheduled before a
Referee. However, there was an incorrect zip code on the hearing notice sent to
Employer so neither Employer nor its counsel received the notice and did not
appear at the hearing.

       2
        Employer intervened and filed a brief in support of the Board’s Decision and Order in
Claimant’s appeal to this Court.

       3
         43 P.S. §802(e). Section 402(e) provides that “[a]n employe shall be ineligible for
compensation for any week … [i]n which his unemployment is due to his discharge … from
work for willful misconduct connected with his work….”




                                             2
              Claimant appeared and testified that he was fired because he got into a
family argument with his sister and brother-in-law outside of work and was refused
entry at the restaurant by his brother-in-law when he reported for work on the
Friday following the argument. As a result, the Referee issued a decision affirming
the UC Service Center’s determination.


              Employer appealed to the Board and requested a remand alleging that
it had not received notice of the Referee’s hearing. The Board remanded to the
Referee to receive testimony and evidence on Employer’s reason for its
nonappearance at the prior hearing and new or additional testimony and evidence
on the merits.4 The evidence established that the notice of the prior hearing had the
incorrect zip code, the Post Office returned the notice to the Board as
undeliverable, and Employer conceded that it did not receive proper notice of the
hearing.


              As to the merits, Claimant’s sister testified that following the
argument, Claimant threw his work keys into their swimming pool, voluntarily quit
his employment, and that he was never fired. Claimant’s brother-in-law testified
that his wife told him that Claimant had quit following the argument; that Claimant


       4
          See, e.g., Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 47 (Pa.
Cmwlth. 2012) (“[W]e hold that the Board may not rely solely upon the sufficiency of statements
made in a petitioner’s appeal document or request to reopen the hearing, but must provide the
petitioner against whom the presumption of receipt is being asserted the opportunity to submit
evidence to rebut that presumption and to support the asserted reasons believed to be proper
cause for not appearing at the hearing before the Board determines whether the petitioner had
proper cause for not attending the hearing….”) (emphasis in original and footnote omitted).




                                              3
was never fired; that Claimant did not come to the restaurant the following day and
that he did not refuse to let Claimant come in the restaurant that day.


             Claimant rejected his sister’s and brother-in-law’s version of events,
but conceded that he made negative comments to his nephews regarding his
brother-in law and that he threw his keys into their swimming pool following an
argument with his sister. However, he again testified that he never quit and that his
brother-in-law prevented him from entering the restaurant when he reported to
work the following day and told him that he did not work there anymore.


             After finding that Employer’s failure to appear at the first hearing was
due to administrative error, the Board reversed the award of benefits, explaining:

             Based on the record before the Board, the Board
             concludes that the claimant had a fight with his
             employer/sister over comments he made to his nephews
             about their father. As a result of this fight, the claimant
             threw the keys over the fence adjoining the two homes
             into the swimming pool and abruptly quit his
             employment. The claimant is not credible that he was
             discharged during the fight on Thursday. The Board
             accepts as credible that the claimant attempted to return
             to work the following day but was refused entrance by
             his brother in law. However, as the claimant provided
             notice to the employer that he quit immediately the fact
             that he was subsequently refused entrance does not
             establish that he was discharged.


(Board 2/18/15 Decision and Order at 2-3).




                                          4
               In this appeal,5 Claimant argues that the Board6 abused its discretion
and its findings are not supported by fact or law because he never voluntarily quit
or intended to quit his employment and he was not absent without leave because he
was a partner in the business and could freely come and go. Rather, he asserts that


       5
         Our review of the Board’s decision 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.        Middletown Township v. Unemployment
Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012). We have defined
“substantial evidence” as such “relevant evidence that a reasonable mind might consider
adequate to support a conclusion.” Palladino v. Unemployment Compensation Board of Review,
81 A.3d 1096, 1100 n.3 (Pa. Cmwlth. 2013), appeal denied, 95 A.3d 278 (Pa. 2014).

       6
          While Claimant argues that the Referee erred in this regard, the record demonstrates
that he is, in fact, appealing the Board’s Decision and Order denying benefits. Additionally, it is
settled that the Board, and not the Referee, is the ultimate finder of fact in unemployment
compensation proceedings. Peak v. Unemployment Compensation Board of Review, 501 A.2d
1383, 1389 (Pa. Cmwlth. 1985); Chamoun v. Unemployment Compensation Board of Review,
542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may either
accept or reject a witness’ testimony whether or not it is corroborated by other evidence of record.
This Court must examine the evidence in the light most favorable to the party who prevailed before
the Board, and to give that party the benefit of all inferences that can be logically and reasonably
drawn from that evidence. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829,
831 (Pa. Cmwlth. 1977). Findings of fact are conclusive on appeal if the record contains substantial
evidence to support the findings. Id. The fact that a witness has presented a version of the facts
different from that accepted by the Board is not a basis for reversal if substantial evidence
supports the Board’s findings. Tapco, Inc. v. Unemployment Compensation Board of Review,
650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). “It is irrelevant whether the 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 findings actually made.” Ductmate Industries, Inc. v.
Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citation
omitted). As the burdened party with respect to establishing necessitous and compelling cause,
Claimant had to meet both his burden of production and his burden of persuasion. See Kirkwood
v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The
Board was free to reject Claimant’s evidence regarding his purported necessitous and compelling
cause even if it was unrebutted. Carriers Terminal Company v. Unemployment Compensation
Board of Review, 449 A.2d 873, 874 (Pa. Cmwlth. 1982).




                                                 5
he properly returned to work after he had cooled down and that he was either
discharged during the fight with his sister on Thursday or on Friday after he was
refused entrance at the restaurant by his brother-in-law for reasons that do not
constitute willful misconduct.


            Where the claimant alleges that he did not quit but was fired, the
claimant bears the burden to prove that he was discharged by the employer. Bell v.
Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth.
2007). In order for a voluntary termination to be found, a claimant must have a
conscious intent to resign from his employment.       Monaco v. Unemployment
Compensation Board of Review, 565 A.2d 127, 129 (Pa. Cmwlth. 1989).
Additionally, when determining whether there has been a voluntary resignation,
the totality of the circumstances must be considered. Philadelphia Parent Child
Center, Inc. v. Unemployment Compensation Board of Review, 403 A.2d 1362,
1363 (Pa. Cmwlth. 1979). Whether a termination of services is a voluntary quit or
a discharge is a question of law to be determined by this Court based upon the
findings of fact made by the Board. Goffi v. Unemployment Compensation Board
of Review, 427 A.2d 1273, 1274 (Pa. Cmwlth. 1981). Moreover, an employee can
revoke a resignation before its “effective date” and before an employer took steps
to replace him is entitled to benefits. See PECO Energy Co. v. Unemployment
Compensation Board of Review, 682 A.2d 40, 45 (Pa. Cmwlth. 1996).


            Here, Claimant’s argument that he rescinded his resignation is based
on the faulty premise that he did not immediately and effectively quit his
employment when he told his sister “I quit” during their family argument and



                                        6
threw his work keys into her swimming pool. Additionally, those facts support the
Board’s determination that Claimant voluntarily and effectively quit his
employment that day before he attempted to revoke it by appearing at the
restaurant on the following day. See Spadaro v. Unemployment Compensation
Board of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004) (holding that the
claimant’s resignation became effective when it was clearly accepted and his
attempt to revoke it after the employer’s acceptance failed because it was too late);
Centerville Clinics, Inc. v. Unemployment Compensation Board of Review, 445
A.2d 1374, 1375 (Pa. Cmwlth. 1982); Porter v. Unemployment Compensation
Board of Review, 434 A.2d 245, 246-47 (Pa. Cmwlth. 1981) (holding that a
claimant’s departure from the employer’s premises without reclaiming her
identification badge and orally proclaiming her resignation evidenced her
immediate resignation notwithstanding the absence of a signed resignation form,
and that she could not revoke the resignation where it was effective prior to the
alleged act of revocation the following day).


             Moreover, the Board properly found that the cause for Claimant’s
voluntary quit, the argument with his sister over a personal matter, was not
necessitous and compelling cause supporting the award of benefits. See Wert v.
Unemployment Compensation Board of Review, 41 A.3d 937, 940 (Pa. Cmwlth.
2012) (holding that personality conflicts, absent an intolerable work atmosphere,
do not constitute necessitous and compelling cause to leaving one’s employment);
Ann Kearney Astolfi DMD PC v. Unemployment Compensation Board of Review,
995 A.2d 1286, 1289 (Pa. Cmwlth. 2010) (same).                See also Rooney v.
Unemployment Compensation Board of Review, 380 A.2d 957, 958-59 (Pa.



                                         7
Cmwlth. 1977) (holding that resentment of a reprimand, absent unjust accusations,
abusive conduct or profane language, does not constitute necessitous and
compelling reason for terminating employment).


            In sum, we will not accede to Claimant’s request to reassess or
reweigh the evidence presented to the Board, and the mere fact that he has
presented a version of the facts different from that accepted by the Board is not a
basis for reversal because substantial evidence supports the Board’s findings.


            Accordingly, the Board’s order is affirmed.



                                      __________________________________
                                      DAN PELLEGRINI, President Judge




                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Pollice,                  :
                   Petitioner     :
                                  :
            v.                    : No. 384 C.D. 2015
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :




                                ORDER


            AND NOW, this 16th    day of November, 2015, the order of the
Unemployment Compensation Board of Review, dated February 18, 2015, at No.
B-14-09-A-9766, is affirmed.



                                  __________________________________
                                  DAN PELLEGRINI, President Judge
