             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Murphy Jewelers and                           :
Murphy Jewelers of Tilden, LLC,               :
                        Petitioners           :
                                              :
              v.                              :    No. 1709 C.D. 2015
                                              :    Submitted: April 8, 2016
Unemployment Compensation Board               :
of Review,                                    :
                    Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: June 8, 2016

              Petitioners Murphy Jewelers and Murphy Jewelers of Tilden, LLC
(Employer) petition this Court for review of an order of the Unemployment
Compensation Board of Review (Board), dated August 27, 2015. The Board
affirmed the Unemployment Compensation Referee’s (Referee) decision that
Claimant Mona L. Shaffer (Claimant) was not ineligible for benefits under
Section 402(b) of the Unemployment Compensation Law (Law) 1 and was,




       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 pertinent part, 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.”
therefore, eligible for benefits beginning with the waiting week ending
October 20, 2012. For the reasons discussed below, we affirm.
             Claimant was employed as a full-time sales director for Employer.
Claimant was injured during the course and scope of her employment on
January 10, 2012, and was subsequently unable to return to work due to her injury.
On March 1, 2012, after Claimant notified Employer that she would be unable to
return to work at full capacity for another two weeks, Employer informed Claimant
that it would begin interviewing to fill her position if she was unable to return to
work at full capacity before March 9, 2012. (Reproduced Record (R.R.) at 99.)
Employer explained that it could no longer function without a manager and could
not hold Claimant’s position open any longer. (Id.) Employer concluded by
telling Claimant that if she was “unable to return at that time in full capacity, [it]
urge[d] [her] to contact [Employer] when [she was] fully cleared in case another
alternate position happens to come available in [its] company.” (Id.) Three weeks
later, on March 21, 2012, Employer sent Claimant a short email informing her
“that as of Thursday, March 22nd, the position of Hamburg Manager/Director of
Sales has been filled.” (Id. at 111.) The email concluded: “We wish you well in
your future endeavors.”       (Id.)    On October 12, 2012, Claimant filed for
unemployment benefits.
             The Lancaster UC Service Center (Service Center) noted that there
was a conflict between whether Claimant’s separation from employment with
Employer was a voluntarily quit or a discharge. (Id. at 1.) The Service Center
found that Claimant “voluntarily quit due to health reasons,” but it concluded that
she had a necessitous and compelling reason for leaving her job. (Id.) The Service
Center further determined that Claimant was able and available for suitable


                                          2
employment beginning with the waiting week ending October 20, 2012. (Id.) As a
result, the Service Center determined Claimant was eligible for benefits. Employer
appealed.
              Following an evidentiary hearing, the Referee issued a decision and
order, affirming the Service Center’s determination. The Referee determined that
Claimant initially left employment voluntarily due to medical reasons of a
necessitous and compelling nature, but Employer later discharged Claimant while
she was still under the care of a physician and unable to return to work. (Id. at 4.)
The Referee reasoned that Claimant could not have been discharged for willful
misconduct when she had “good cause for continuing to be off work.” (Id.) The
Referee essentially concluded that Claimant was not ineligible for benefits under
Sections 402(b) and 402(e)2 of the Law and was qualified for benefits beginning
with the waiting week ending October 20, 2012, under Section 401(d)(1) of the
Law.3 (Id.)
              Employer appealed to the Board, which reversed the Referee’s
decision and denied benefits to Claimant. The Board concluded that Claimant
voluntarily left employment. (Id. at 41.) The Board found that Claimant “failed to
credibly establish that she contacted [Employer] after March 2012 with
information that she could return to work and she has failed to credibly establish


       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e). Section 402(e) of the Law provides, in pertinent part, that a claimant shall be
ineligible for compensation for any week in which the claimant’s unemployment is due to
“willful misconduct connected with his work.”
       3
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 801(d)(1).



                                               3
that it would have been futile for her to do so.” (Id.) The Board concluded,
therefore, that Claimant did not make a reasonable effort to maintain her
employment relationship and was ineligible for benefits under Section 402(b) of
the Law. (Id.) The Board also concluded that Claimant was ineligible for benefits
for the week of October 20, 2012, because it “specifically reject[ed] as not credible
[Claimant’s] testimony that she magically became able to work [on October 12,
2012,] the day after she signed her workers[’] compensation settlement
agreement.” (Id.)
              Claimant petitioned this Court for review. This Court vacated the
Board’s order and remanded the matter to the Board for the issuance of a new
decision, including new findings of fact and conclusions of law. 4 In so doing, this
Court concluded that the Board’s findings of fact were insufficient to allow for
appellate review because they did not address: (1) whether Claimant’s health
reasons were of sufficient dimension to compel her to leave her employment;
(2) whether Claimant sufficiently informed Employer of her health problems;
(3) whether Employer’s condition was reasonable; (4) whether Claimant is “fully
cleared” to perform her job without restriction; and (5) if Claimant is cleared to
perform her job duties without restriction, the date she received such medical
clearance. (Id. at 54.)




       4
         Shaffer v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1445 C.D. 2013, filed
July 23, 2014) (Shaffer).



                                             4
              On remand and following an additional hearing conducted by the
Referee as the Board’s hearing officer,5 the Board decided to affirm the Referee’s
decision and granted benefits to Claimant.            This time, the Board found that
Claimant did not voluntarily quit her employment. Instead, the Board found that
Employer terminated her employment. Specifically, the Board made the following
findings of fact:

              1.     The claimant was last employed as a full-time
                     sales director by the employer from May 20, 2010,
                     at a final rate of $62,000.00 per year and her last
                     day of work was January 29, 2012.
              2.     On January 26, 2012 [sic], the claimant was
                     helping remove a Christmas tree and hurt her back
                     when it fell and she caught it.
              3.     The claimant filed a workers’ compensation claim
                     and on February 20, 2012, a Temporary Notice of
                     Compensation Payable was issued to the claimant
                     for a lumbosacral sprain.
              4.     The claimant was unable to work in any capacity
                     due to this work injury.
              5.     On March 1, 2012, the employer informed the
                     claimant that it would not hold her position past
                     March 9, 2012. The employer informed the
                     claimant that it would consider her able to return to
                     work in full capacity by that date if she provided
                     proper medical proof that she was cleared to
                     handle the full time managerial position.



       5
         The Board remanded the matter to the Referee for the purpose of scheduling a further
hearing and taking additional testimony pursuant to this Court’s decision in Shaffer.
(R.R. 55-56.)



                                             5
            6.     The employer instructed the claimant that if she
                   could not return by March 9, 2012, to contact the
                   employer when she was “fully cleared in case
                   another alternative position happens to come
                   available in our company.”
            7.     The claimant informed the employer that the
                   workers’ compensation doctor had not cleared her
                   to return to any work but “I will continue to update
                   you about my progress. Also I will continue to
                   provide my doctor notes to you.”
            8.     On March 9, 2012, the claimant was not capable of
                   any work.
            9.     On March 21, 2012, the employer informed the
                   claimant that it had combined the responsibilities
                   of manager and director into one position and that
                   it had hired an applicant as of March 22, 2012.
                   The employer stated: “We wish you well in your
                   future endeavors.”
            10.    On May 21, 2012, the claimant received a
                   physician    affidavit  from     the     workers’
                   compensation physician showing she was fully
                   recovered from her lumbosacral sprain/strain. The
                   employer received a copy of the affidavit from its
                   doctor.
            11.    On October 11, 2012, the claimant’s doctor
                   released her to work with a 30 pound lifting
                   restriction.
            12.    The claimant did not inform the employer of the
                   release since she had already been terminated
                   from employment on March 21, 2012.
            13.    The claimant is able to work with a 30 pound
                   lifting restriction.

(Id. at 57-58 (emphasis added).)
            Although the Board found that Employer terminated Claimant’s
employment, it nevertheless answered the questions posed to it by this Court in
                                         6
Shaffer, which were related to the Board’s prior finding that Claimant had quit.6
The Board also found that, based on her credible testimony, Claimant was able and
available for work as of October 12, 2012, which was the day after Claimant’s
physician released her to work with a thirty-pound lifting restriction. The Board
also observed that Claimant had acted reasonably when she did not reach out to
Employer at that point to notify Employer that she could return to work, because
Employer had terminated her employment in March. (Id. at 59-60.)
                Thereafter, Employer petitioned this Court for review, and Claimant
intervened.     On appeal,7 Employer essentially argues that the Board erred in
finding that Claimant was not able to return to work until October 12, 2012, and
then only with restrictions. Employer contends, instead, that Claimant was fully

       6
         In answering the questions on remand, the Board included the following in its
reasoning:
       Based on the record before the Board, the Board concludes that the claimant has
       established that she originally left work due to a work related injury. The
       claimant had sufficient health reason[s] to leave work to address her injuries. The
       claimant did inform employer of her health problems. The employer informed the
       claimant she must have full recovery to return the claimant to work in the jewelry
       store. The Board finds that, due to safety concerns, the employer’s condition was
       reasonable. The Board also finds, however, that the claimant was never cleared
       by her own doctor to perform her job without restriction. The Board does not
       credit the affidavit from the employer’s workers’ compensation doctor as,
       notably, even though the employer received the affidavit, it did not require the
       claimant to return to work. The claimant, therefore, has proven that she had a
       necessitous and compelling reason to leave work and not contact the employer to
       return.
(R.R. at 59.)
       7
         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.       Section 704 of the Administrative Agency Law,
2 Pa. C.S. § 704.



                                               7
recovered from her work-related injury as of May 21, 2012, but failed to return to
work at that time. Employer also argues that the Board erred as a matter of law in
concluding that Claimant left work for cause of a necessitous and compelling
nature.8    The issues framed by Employer, however, demonstrate Employer’s
misapprehension as to the basis for the Board’s decision after remand, which is the
subject of this appeal. Although the Board on remand considered the questions
identified by this Court in Shaffer relating to Claimant’s medical condition for
purposes of determining whether she had necessitous and compelling reasons to
leave employment, the Board on remand reached a different conclusion related to
the circumstances of Claimant’s separation of employment. On remand, the Board
found that Employer terminated Claimant’s employment—not that Claimant
voluntarily left her employment. (See Finding of Fact (F.F.) No. 12.) This finding
represents a significant departure from the Board’s prior, vacated findings of fact,
wherein the Board essentially found that Claimant had neither quit her employment
nor been fired.9



       8
          Employer further argues that the Board’s July 26, 2013 Decision and Order and the
Board’s August 27, 2015 Decision and Order contain conflicting findings of fact. This argument
is without merit, as this Court vacated the Board’s July 26, 2013 Decision and Order, including
its findings of fact, in Shaffer.
       9
         In Shaffer, based upon the Board’s findings of fact, we observed that Claimant’s case
“present[ed] an unusual factual scenario, in which Claimant [was] in limbo[,]” given that
although she was not working, Claimant had not resigned and Employer had not fired her as of
the date she had filed for benefits. Shaffer, slip op. at 6. Consequently, in Shaffer, we focused
on Claimant’s medical status as of the date she filed for benefits. On remand, however, the
Board issued new findings of fact and determined that Claimant’s employment was terminated
by Employer on March 21, 2012. It is that new finding of fact that is dispositive of the matter
now before the Court.



                                               8
             Based on this finding, the Board correctly held as a matter of law that
Claimant was not ineligible for benefits under Section 402(b) of the Law, because
one can only be ineligible under this section if he or she voluntarily leaves work.
The Board found that Employer terminated Claimant’s employment on March 21,
2012, while Claimant was off work due to a work-related injury. Employer does
not challenge this finding on appeal. Whether Claimant was able and available to
return to work on May 21, 2012, as Employer contends, or October 12, 2012, as
the Board found, is not now a relevant consideration, because Claimant was no
longer employed by Employer as of either date. Moreover, as Employer had
terminated Claimant’s employment in March 2012, she had no obligation to ask
Employer to rehire her when she thereafter became able and available to return to
work. Finally, Employer does not contend on appeal that Claimant was terminated
for willful misconduct, such that she should be ineligible for benefits under
Section 402(e) of the Law.
             Employer also argues that the Board erred as a matter of law because
it did not follow the instructions of this Court in Shaffer. More specifically,
Employer argues that the Board did not direct the Referee to take additional
testimony relative to the five questions set forth by the Court in Shaffer, posing
different questions to the Referee. Employer’s argument lacks merit. This Court
remanded this matter to the Board to resolve certain questions, which it did. The
Board, on its own initiative, remanded the matter to the Referee to take additional
evidence as the Board’s hearing officer. Although the questions posed by the
Board to the Referee may have differed somewhat from the questions set forth in
Shaffer, the Court is satisfied that the Board acted consistent with our remand
directive.


                                         9
Accordingly, the order of the Board is affirmed.




                   P. KEVIN BROBSON, Judge




                           10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Murphy Jewelers and                   :
Murphy Jewelers of Tilden, LLC,       :
                        Petitioners   :
                                      :
            v.                        :   No. 1709 C.D. 2015
                                      :
Unemployment Compensation Board       :
of Review,                            :
                    Respondent        :


                                  ORDER


            AND NOW, this 8th day of June, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
