                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen Jodzis,                               :
                          Petitioner           :
                                               :
                   v.                          : No. 1264 C.D. 2016
                                               : SUBMITTED: November 23, 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: January 19, 2017

                   Kathleen M. Jodzis (Claimant) petitions for review of the July 12,
2016, decision of the Unemployment Compensation Board of Review (Board),
which affirmed the referee’s decision finding Claimant ineligible for benefits under
section 402(b) of the Unemployment Compensation Law (Law)1 because Claimant
voluntarily terminated her employment without necessitous and compelling cause.
We affirm.


                   Claimant was employed as a coordinator for Chatham College
(Employer) from August 15, 2009, through April 11, 2016. (Board’s Findings of

          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b).
Fact (F.F.) No. 1.) On April 8, 2016, Employer held a meeting and told all
employees that a new position was being created. (F.F. No. 2, Notes of Testimony
(N.T.) at 6.) The position had no effect on Claimant’s employment; nevertheless,
on April 11, 2016, Claimant asked to speak privately with her supervisor. (F.F.
No. 4, N.T. at 7.) Claimant told the supervisor that she should give the new job to
Claimant or Claimant would leave. (F.F. No. 5; see N.T. at 7.) The supervisor
tried to talk Claimant out of this and told Claimant to go home and sleep on it
before making a decision. (F.F. No. 6, N.T. at 7.) Claimant said no and said she
was going to clean out her belongings. (N.T. at 7, see F.F. No. 7.) Claimant’s job
was not eliminated and it would have been available to Claimant had she not quit.
(F.F. No. 10, N.T. at 8.)


             Claimant applied to the local unemployment compensation service
center for benefits, which found the Claimant ineligible for benefits. Claimant
appealed, and a hearing was held before a referee.        Based on the evidence
presented, the referee found that Claimant voluntarily quit her employment without
necessitous and compelling cause, and therefore, denied benefits under section
402(b) of the Law. Claimant then appealed to the Board. The Board found that
Claimant quit her employment because Employer would not give Claimant the new
position. (F.F. No. 9.) Accordingly, the Board affirmed the referee’s decision and
denied Claimant benefits.




                                        2
              Claimant now petitions this Court for review of the Board’s decision.2
Before this Court, Claimant argues that she did not quit, but rather was terminated.
Therefore, she argues her eligibility for benefits should not be determined under
section 402(b) of the Law,3 but instead, should be determined under section 402(e)
of the Law,4 which puts the burden on Employer to show that Claimant was
terminated for willful misconduct.


              To support her position that she did not quit, but rather was
terminated, Claimant points to her testimony that when she asked if she would be
receiving the new position, Employer told Claimant that if she wished to keep her
job, she could apply but that Employer wanted someone from the outside who was
“new and fresh.” Claimant states she was then asked to leave. Claimant maintains
Employer made it very clear to her that she would not receive the position. Thus,
Claimant asserts that she was effectively terminated.


              The Board recognized that there was a dispute concerning whether
Claimant quit or was voluntarily terminated, and noted the conflicting testimony
concerning what happened at the meeting between Claimant and her supervisor on
April 8, 2016. (Board’s opinion (op.) at 2.) However, the Board resolved the
conflicting testimony in favor of Employer. Accordingly, the Board concluded

       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
          43 P.S. § 802(b).
        4
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).


                                               3
that when Employer would not give Claimant the new position as Claimant
demanded, Claimant quit. (Board op. at 2; see F.F. Nos. 5, 9, N.T. at 7.)


             Claimant’s argument is nothing more than an attempt to argue her
preferred version of the facts and to challenge the Board’s credibility
determinations. It is well-settled that the Board is the arbiter of credibility and is
free to accept or reject the testimony of any witness in whole or in part. McCarthy
v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth.
2003). Even if there is contrary evidence in the record, where the Board’s findings
are supported by substantial evidence, they are conclusive on appeal. Morgan v.
Unemployment Compensation Board of Review, 108 A.3d 181 (Pa. Cmwlth. 2015).
We have reviewed the record and find there is substantial evidence in the record
(as noted by our citations to the hearing transcript above) to support the Board’s
necessary findings of fact. Accordingly, because the Board’s finding that Claimant
quit is supported by substantial evidence, it is conclusive. Thus, the Board did not
err in analyzing this case under section 402(b) of the Law, 43 P.S. § 802(b).


             Under section 402(b) of the Law, a claimant is ineligible for benefits
unless she establishes that she left her employment for necessitous and compelling
cause. 43 P.S. § 802(b). Whether a claimant had necessitous and compelling
cause to terminate her employment is a question of law fully reviewable by this
Court. Morgan. An employee who claims to have quit her employment for a
necessitous and compelling reason must prove that (1) circumstances existed
which produced real and substantial pressure to terminate employment; (2) such
circumstances would compel a reasonable person to act in the same manner; (3) the


                                          4
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).


            Claimant argues that she had necessitous and compelling reason to
leave her position because she believed she was terminated, and therefore, had to
leave. Claimant again points to her testimony concerning her lengthy conversation
with her supervisor. She maintains that because her supervisor made it clear to
Claimant that she would not receive the job and eventually told Claimant to leave,
Claimant believed she was terminated. Additionally, Claimant states that she
specifically asked if she was being terminated, and her supervisor responded,
“yes.” Claimant also states she told human resources the next day that she did not
quit.


            We are not persuaded by Claimant’s arguments. Again, Claimant is
simply arguing her preferred version of the facts, which was not credited by the
Board. Thus, Claimant has failed to offer any necessitous and compelling reason
for quitting her employment. Consequently, Claimant is ineligible for benefits
under section 402(b) of the Law, 43 P.S. § 802(b).


            Accordingly, we affirm the Board’s order.


                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge

Judge Cosgrove concurs in the result only.

                                        5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen Jodzis,                  :
                   Petitioner     :
                                  :
            v.                    : No. 1264 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :


                                ORDER


            AND NOW, this 19th day of January, 2017, the order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                  __________________________________
                                  JULIA K. HEARTHWAY, Judge
