                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Eible,                                  :
                     Petitioner              :
                                             :    No. 1194 C.D. 2015
              v.                             :
                                             :    Submitted: October 23, 2015
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                             FILED: January 29, 2016


              Paul M. Eible (Claimant) petitions, pro se, for review of the June 16,
2015 order of the Unemployment Compensation Board of Review (Board) which
affirmed a referee’s decision that Claimant was ineligible for benefits under section
402(b) of the Unemployment Compensation Law (Law).2 For the following reasons,
we affirm.



       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
          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 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.
                           Facts and Procedural History
            Claimant was employed by Carbon Lehigh Intermediate Unit #21
(Employer) from January 24, 2014, until his resignation on March 13, 2015. The
local service center determined that Claimant was ineligible for benefits because he
voluntarily terminated his employment without demonstrating the requisite
necessitous and compelling reason. Claimant appealed that decision to a referee who
held a hearing on April 23, 2015.
            Claimant testified that he worked for Employer as behavioral support for
students with advanced autism.      Claimant stated that he met with Employer’s
Director of Human Resources, Michele Borland (Borland), on March 13, 2015,
during which Borland advised him that Employer was investigating allegations that
he had harmed a student. Claimant also stated that a children and youth services
agency (Childline) was conducting a separate investigation concerning the allegations
levied against him. Claimant testified that Borland advised him not to return to work
until the Childline investigation had been resolved; however, Claimant testified that
he was not given any time frame for when that investigation might be completed.
Claimant further testified that, after the meeting, Borland advised him that it would
be in his best interest to resign because, if he left, Employer would cease its
investigation immediately. (Notes of Testimony (N.T.) at 5, 7-8.)
            Claimant resigned on March 13, 2015, and stated that he resigned
because he was unclear when he would be allowed to return to work. Claimant
acknowledged that he was not actually told that he was suspended, but explained that
his employment status was uncertain because of the pending Childline investigation.
Claimant testified that Employer’s investigation was not resolved at the time of his
resignation and he was not told that he was going to be terminated. Claimant added



                                         2
that the alleged incident occurred on February 12, 2015, and that he was not afforded
an opportunity to present a defense to the incident. (N.T. at 1, 5, 7-11.)
             Borland testified that Claimant was not suspended. Instead, Borland
stated that, when Employer learned of the Childline investigation, Employer
contacted Claimant on March 8, 2015, and notified him that his services would not be
needed that week. Borland further testified that she is not responsible for making
employment determinations and that she did not advise Claimant that he was going to
be terminated. Borland stated that, if Claimant had not resigned, she would have
completed her investigation, made a recommendation to Employer’s legal counsel,
and Employer’s board of directors would have made a determination regarding
Claimant’s employment status. Borland also testified that her investigation had not
concluded at the time of Claimant’s resignation and, consequently, she did not make
a recommendation to the board of directors. Borland noted that, if she had made a
recommendation to the board of directors, Claimant would have an opportunity for a
hearing before the board of directors, and she stated that this information is available
in Employer’s contract. (N.T. at 11-13.)
             Borland further testified that, during the March 13, 2015 meeting, she
did not give Claimant any recommendations for his career. She stated that Claimant
asked her what would happen if he resigned and she advised him that Employer’s
investigation would be terminated and that Employer’s records would reflect that
Claimant resigned. Borland stated that Claimant did not ask her about any other
employment options besides resignation. Borland testified that Claimant was a union
member and could have requested union representation at the meeting; however,
Claimant did not ask for union representation and a union representative was not
present at the March 13, 2015 meeting. Borland added that any time Employer



                                           3
schedules an investigatory meeting that could result in discipline, the meeting request
states that the individual has the right to union representation. Borland confirmed
that Employer terminated its investigation into the alleged incident following
Claimant’s resignation and that she was unaware of the results of Childline’s
investigation. (N.T. at 11-14, 16.)
             Following the hearing, the referee made the following findings of fact:

             3. On March 8, 2015, a report was made to Childline, a
             hotline operated by the Department of Human Services to
             receive reports of suspected child abuse, alleging Claimant
             kicked a child.

             4.    On March 13, 2015, Employer conducted an
             investigatory meeting with Claimant regarding the alleged
             abuse.

             5. Employer explained it was conducting an investigation
             separate from the investigation conducted by Childline.

             6. Claimant asked Employer what would happen if he
             resigned.

             7. Employer advised Claimant it would cease its internal
             investigation and Claimant’s personnel records would
             reflect his employment ended with resignation.

             8. Employer did not advise Claimant he would be
             discharged if he did not resign.

                                         ...

             10. Neither Childline nor Employer had concluded their
             respective investigations at the time of Claimant’s
             resignation.

             11.    Claimant resigned effective March 13, 2015 rather
             than face the possibility of discharge.



                                          4
(Referee’s Findings of Fact Nos. 3-8, 10-11.)
              Pursuant to the findings, the referee concluded that Claimant was
ineligible for compensation benefits because he voluntarily terminated his
employment without a necessitous and compelling reason. Claimant appealed to the
Board, which affirmed the referee’s decision. The Board found Borland’s testimony
that she did not make a recommendation to Claimant regarding his career choice
credible. The Board also found that Borland had not completed her investigation
when Claimant resigned and had no authority to discharge him because that authority
was vested in Employer’s board of directors.            The Board adopted the referee’s
findings of fact and conclusions of law and determined that Claimant’s separation
from employment was voluntary and without necessitous and compelling reason,
rendering him ineligible for benefits.             Claimant submitted a request for
reconsideration of the Board’s decision, which was denied.
              On appeal to this Court,3 Claimant challenges the Board’s finding that
Borland did not make a recommendation to Claimant regarding his career choice.
Claimant also asserts that the Board erred when it concluded that his resignation was
voluntary because Borland recommended that he retire and did not advise Claimant
that he was entitled to union representation or that he could be heard before
Employer’s board of directors. Claimant asserts that, because this information was
unavailable to him, resignation was his only choice.




       3
         Our scope of review in an unemployment compensation appeal 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; Leace v.
Unemployment Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014).



                                              5
                                     Discussion
            Initially, we note that the Board is the ultimate fact-finder and is
authorized to resolve conflicts in evidence and determine the credibility of witnesses.
Unemployment Compensation Board of Review v. Wright, 347 A.2d 328, 329 (Pa.
Cmwlth. 1975). The Board’s findings of fact are conclusive on appeal if the record,
taken as a whole, contains substantial evidence to support those findings. Henderson
v. Unemployment Compensation Board of Review, 77 A.3d 699, 718 (Pa. Cmwlth.
2013). Substantial evidence is relevant evidence upon which a reasonable mind
could base a conclusion. Fritzo v. Unemployment Compensation Board of Review,
429 A.2d 1215, 1218 (Pa. Cmwlth. 1981).           In determining whether substantial
evidence exists, we must examine the testimony in the light most favorable to the
prevailing party below, giving that party the benefit of any inference which can be
drawn logically and reasonably from the evidence.         Johnson v. Unemployment
Compensation Board of Review, 505 A.2d 738, 740 (Pa. Cmwlth. 1986).
            A claimant has the burden of proving entitlement to unemployment
compensation benefits. Jennings v. Unemployment Compensation Board of Review,
675 A.2d 810, 815 (Pa. Cmwlth. 1996). In a voluntary quit case, this Court must first
decide whether the facts surrounding the employee’s separation from employment
constitute a voluntary resignation or a discharge.        Charles v. Unemployment
Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). Whether a
termination constitutes a discharge or a voluntary quit is a question of law to be
determined by examining the Board’s findings of fact.         Wise v. Unemployment
Compensation Board of Review, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997).
            Generally, where an employee resigns to avoid an imminent discharge,
the situation is considered a discharge.       Fishel v. Unemployment Compensation



                                           6
Board of Review, 674 A.2d 770, 773 n.2 (Pa. Cmwlth. 1996). However, where an
employee resigns, leaves, or quits employment without any action by the employer,
that action constitutes a voluntary quit for purposes of compensation benefits.
Monaco v. Unemployment Compensation Board of Review, 565 A.2d 127, 129 (Pa.
1989). An employee who quits work to avoid the possibility of being fired is not
entitled to compensation. Fishel, 674 A.2d at 772-73.
            Claimant asserts that the Board’s finding that Borland did not make any
career recommendations to Claimant during the meeting was erroneous because
Borland recommended that Claimant should resign.
            At the referee’s hearing, Borland testified that she did not give Claimant
any career recommendations. The Board found her testimony credible, and it rejected
Claimant’s contrary version of their conversation. The Board is the ultimate arbiter
of witness credibility and is authorized to resolve any conflicts in evidence. Wright,
347 A.2d at 329.     Borland’s credible testimony constitutes substantial evidence
sufficient to support the Board’s finding. Accordingly, the Board’s finding that
Borland did not make any career recommendation to Claimant is conclusive on
appeal and cannot be disturbed.
            Next, Claimant argues that his resignation was not voluntary because
Borland recommended that he resign and did not advise him that he was entitled to
union representation or that he could be heard before Employer’s board of directors.
Claimant asserts that resignation was his only choice.
            This Court’s decision in Fishel, is instructive. The claimant in Fishel
was a substitute teacher who received an unsatisfactory performance evaluation. A
plan with performance objectives was created to improve the claimant’s performance,
but she received a second unsatisfactory evaluation. At a subsequent meeting with



                                          7
school administrators, an administrative assistant advised the claimant that she could
resign and that if she did not resign he would recommend her termination to the
school board.
              The claimant resigned, and a referee awarded her unemployment
compensation benefits, concluding that she resigned under real and substantial
pressure. The Board reversed, however, finding that only the school board had the
authority to terminate an employee and would hold a formal hearing before doing so.
Accordingly, the Board concluded that the claimant resigned voluntarily without
necessitous and compelling cause to avoid the possibility of termination.
              On appeal to this Court, the claimant in Fishel argued that she was
forced to resign when the administrative assistant advised her to resign or be
terminated by the school board. The claimant alleged that her resignation did not
constitute a voluntarily termination because she had no meaningful choice. This
Court rejected that argument, stating that only a resignation to avoid imminent
discharge will be treated as a discharge, and we noted that the outcome of the
administrative assistant’s recommendation to the school board was far from certain.
We affirmed the Board’s decision, stating that it is well settled that “an employee
who quits work to avoid the possibility of being fired is not entitled to
compensation.” Id. at 772-73.
              In this case, the Board found that Borland had not completed her
investigation at the time of Claimant’s resignation and that Borland did not have the
authority to discharge Claimant; that authority was vested in Employer’s board of
directors. The Board also found that Claimant would have had an opportunity to
defend himself at a hearing before Employer’s board of directors before he could be
discharged.



                                          8
             As in Fishel, Claimant’s future employment status was not certain.
Employer’s investigation had not been completed at the time Claimant submitted his
resignation, and it is not certain that the results of Borland’s investigation would have
been unfavorable to Claimant. Additionally, Borland’s recommendation would not
be determinative because, like the situation in Fishel, she did not have the authority to
discharge Claimant. As in Fishel, Claimant would have had an opportunity to dispute
the allegations against him at a hearing before termination occurred. Thus, the Board
properly determined that Claimant’s resignation does not constitute a resignation to
avoid imminent discharge. Instead, Claimant resigned to avoid the possibility of
being fired and, therefore, he is not entitled to compensation benefits.
             Accordingly, we affirm.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           9
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Eible,                             :
                    Petitioner          :
                                        :    No. 1194 C.D. 2015
              v.                        :
                                        :
Unemployment Compensation               :
Board of Review,                        :
                 Respondent             :


                                     ORDER


              AND NOW, this 29th day of January, 2016, the June 16, 2015 order of
the Unemployment Compensation Board of Review is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
