             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Torres,                              :
                        Petitioner           :
                                             :
                 v.                          : No. 140 C.D. 2016
                                             : SUBMITTED: October 14, 2016
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:          HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE JULIA K. HEARTHWAY, Judge
                 HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                              FILED: December 12, 2016

                 Michael Torres (Claimant) petitions for review of the January 7, 2016,
decision of the Unemployment Compensation Board of Review (Board), which
adopted and incorporated the Referee’s findings and conclusions that Claimant is
ineligible for benefits under section 402(b) of the Unemployment Compensation
Law (Law)1 because Claimant voluntarily terminated his employment without
necessitous and compelling cause. We affirm.


                 In November 2009, Claimant began working as a full-time service
technician for Blue Ridge Communications/Pencor Services (Employer).


1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
(Findings of Fact (F.F.) No. 1.) On September 14, 2011, Claimant sustained a
work-related injury to his neck.     (F.F. No. 2.)    After the injury, Claimant
intermittently returned to work with Employer until sometime in March 2012.
(F.F. No. 4.) Claimant did not return to work after March 2012 due to the nature of
his injuries. (F.F. No. 6.) Employer made offers of employment to Claimant on
April 28, 2014, June 2, 2014, and August 8, 2014, but Claimant declined the offers
due to his continued inability to perform employment within his medical
restrictions. (F.F. Nos. 7-8.) Employer did not make any continued offers of
employment to Claimant after August 8, 2014. (F.F. No. 9.) Claimant is able and
available for work, but is restricted from lifting greater than seventy-five (75)
pounds and performing overhead work. (F.F. No. 10.)


            On December 15, 2014, Claimant, in conjunction with his counsel,
accepted a compromise and release agreement which settled Claimant’s workers’
compensation claim (Settlement Agreement).       (F.F. No. 11.)    As part of the
Settlement Agreement with Employer’s workers’ compensation carrier, Claimant
received $72,000 and his attorney received $18,000.       (F.F. No. 12.)   Due to
Claimant’s acceptance of the Settlement Agreement, Claimant was required to
resign his employment with Employer. (F.F. No. 13.) Claimant submitted his
resignation to Employer in order to accept the Settlement Agreement. (F.F. No.
14.)


            After his separation from employment, Claimant applied for
unemployment compensation benefits.         The local job center found Claimant
ineligible for benefits under section 402(b) of the Law. Claimant appealed to a


                                        2
referee, who held a hearing at which Claimant and two witnesses for Employer
testified.   Following the hearing, the referee affirmed the local job center’s
determination that Claimant was ineligible for benefits under section 402(b) of the
Law.     In doing so, the referee relied on this Court’s decision in Lee v.
Unemployment Compensation Board of Review, 33 A.3d 717 (Pa. Cmwlth. 2011),
and concluded that Claimant did not have necessitous and compelling reasons to
quit due to his decision to settle his workers’ compensation claim and resign his
employment. Claimant then appealed to the Board, which adopted the findings
and conclusions of the referee.


              Claimant now petitions this court for review of the Board’s decision.2
Claimant states the question presented as “[w]hether the Unemployment
Compensation Board of Review erred in denying unemployment benefits to Torres
where he was forced to resign and did not voluntarily quit his employment.”
(Petitioner’s brief at 2.)


              Pursuant to Section 402(b) of the Law, a claimant is ineligible for
benefits if he voluntarily terminates his employment without cause of a necessitous
and compelling reason. 43 P.S. § 802(b). Whether a claimant has quit voluntarily
is a question of law, and this court considers the totality of the circumstances. Lee.
An employee who claims to have quit his employment for a necessitous and
compelling reason must prove that (1) circumstances existed which produced real

2
  Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary findings of fact
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.


                                              3
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
the employment. Brunswick Hotel & Conference Center, LLC v. Unemployment
Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006).
Significantly, this court has held that “when a claimant agrees to execute a
resignation/release in order to settle a workers’ compensation claim, the claimant
terminates [his/]her employment voluntarily without necessitous and compelling
cause.” Lee, 33 A.3d at 721.


             Despite the fact that Claimant resigned in order to settle his workers’
compensation claim, Claimant argues that he did not voluntarily quit his
employment. Claimant contends that he never intended to resign, but was forced
to quit and that he had necessitous and compelling reasons to quit because
Employer refused to provide him with a supervisory position; Employer refused to
offer him a union position; Employer violated his work restrictions; and Employer
was no longer offering him work due to his work-related injuries. We disagree
with Claimant.


             Here, the Board found that Claimant submitted his resignation in
order to accept the workers’ compensation settlement. (F.F. No. 14.) At the
hearing, Claimant testified that the Settlement Agreement “would be the best step
for me to get on my feet to go to school and try to find another trade ….” (R.R. at
26a.) Claimant also testified that his lawyer told him he had to sign the resignation
letter in order to have closure with the workers’ compensation claim. (R.R. at


                                         4
25a.) Claimant admitted on cross-examination that no one made him sign the
Settlement Agreement and that he was aware of the significance of signing it.
(R.R. at 34.) Claimant further stated that signing the resignation letter was his
choice at the time to move on with his life. (R.R. at 34a.) This testimony supports
the Board’s determination that Claimant voluntarily quit his employment in order
to settle the workers’ compensation claim.3 Where, as here, the Board’s findings
are supported by substantial evidence, they are conclusive on appeal.                         Lee.
Therefore, because Claimant resigned in order to accept the workers’
compensation settlement, Claimant terminated his employment voluntarily without
necessitous and compelling cause.4 See id.


               Claimant also argues that the Settlement Agreement is unenforceable.
In particular, Claimant argues that the Settlement Agreement lacks consideration
because Employer failed to pay any consideration, and Claimant also points out
that the Settlement Agreement does not contain any language stating that Claimant
intends to be legally bound.5 (Claimant’s brief at 21-22.) Claimant further argues


3
  See Lee (finding that claimant’s testimony that she resigned because her attorney stated that the
workers’ compensation settlement would not occur otherwise supported the Board’s
determination that claimant voluntarily quit to settle her workers’ compensation claim).
4
  Claimant admitted that he was informed that if he did not sign the Settlement Agreement he
could still appeal (concerning his workers’ compensation) and stay on workers’ compensation.
(R.R. at 34a.) Apparently, the parties disagreed as to Claimant’s ongoing entitlement to workers’
compensation because an independent medical examination stated that Claimant was clear to
return to work without restrictions, and Claimant’s attorney stated Claimant would not be
returning to work. (R.R. at 35a, 39a.) Employer testified that Claimant’s attorney initiated
settlement negotiations. (R.R. at 41a.)
5
  We note that Claimant’s counsel here also represented Claimant in connection with the
Settlement Agreement. (Original Record, Claimant’s Ex. 4, Letter from Counsel to Claimant
concerning copy of Settlement Agreement.)


                                                5
that the Settlement Agreement is unenforceable because it is against public policy
and thwarts the policy of the Law, in particular Section 701, 43 P.S. § 861.
(Claimant’s brief at 21-24.)


             Claimant, however, failed to raise these arguments before the referee
or the Board, and therefore, he has waived them.            Leone v. Unemployment
Compensation Board of Review, 885 A.2d 76 (Pa. Cmwlth. 2005). Additionally,
these arguments are not expressly raised or fairly implied in Claimant’s Statement
of the Question Presented, and Claimant has waived them for that reason as well.6
Pa. R.A.P. 2116(a) (stating “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby”); see O’Neill v.
Workers’ Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 59 n.5 (Pa.
Cmwlth. 2011).


             For the foregoing reasons, we affirm the Board’s Decision to deny
Claimant benefits under Section 402(b) of the Law.




                                        __________________________________
                                        JULIA K. HEARTHWAY, Judge




6
  Nevertheless, we note that were we to address Claimant’s arguments, Claimant would not
prevail under the facts here.


                                           6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Torres,                   :
                  Petitioner      :
                                  :
            v.                    : No. 140 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER


            AND NOW, this 12th day of December, 2016, the order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                  __________________________________
                                  JULIA K. HEARTHWAY, Judge
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Torres,                                :
                      Petitioner               :
                                               :
              v.                               :
                                               :
Unemployment Compensation,                     :
Board of Review,                               :    No. 140 C.D. 2016
                 Respondent                    :    Submitted: October 14, 2016


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE COSGROVE                                   FILED: December 12, 2016

              I disagree with the Majority’s conclusion that several of Claimant’s
arguments have been waived since they were supposedly not “expressly raised nor
fairly implied in Claimant’s Statement of the Question Presented.” Slip Op. at 6.
Claimant’s brief sufficiently outlines the issues he raises as well as their related
components. As such, I would address each in a thorough manner.1
              I must however concur in the Majority’s essential premise that the
settlement agreement entered in this matter trumps Claimant’s attempt to obtain
       1
          The Majority also reasons that the issues in question are waived since Claimant “failed
to raise [them] before the referee or the Board.” Id. This “waiver” argument was not, however,
raised by the Board. While an appellate court may have the prerogative to raise waiver sua
sponte, we need not do so in this case since the issues in question can be fairly and properly
resolved on their merits, and on the record and briefing before us. See Commonwealth v. Klaric,
397 A.2d 1212 (Pa. Super. 1979).
unemployment benefits. Any deficiencies in that agreement or its application are
not for this Court to address in the posture of an unemployment case.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge




                                     JMC -2
