           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert E. Michael,                            :
                                              :
                            Petitioner        :
                                              :
              v.                              :   No. 998 C.D. 2015
                                              :
Unemployment Compensation                     :   Submitted: November 13, 2015
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                    FILED: March 9, 2016

       Robert E. Michael (Claimant), pro se, petitions for review of a May 6, 2015
Order of the Unemployment Compensation (UC) Board of Review (Board) finding
Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law
(Law)2 because he voluntarily left his employment with Pittsburgh Protection
Services (Employer) on January 7, 2015 without cause of a necessitous and
       1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.

       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Section 402(b) provides that an employee is ineligible for UC benefits for any week
“[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature.” Id.
compelling nature. On appeal,3 Claimant argues that the Board erred by: (1)
finding that Claimant did not have proper cause for his nonappearance at the
March 3, 2015 consolidated Referee hearing; and (2) concluding that Claimant did
not have cause of a necessitous and compelling nature to walk away from his job
on January 7, 2015.4 Discerning no error, we affirm.




       3
          “Claimant had two [] appeals pending before the Board at appeal numbers B-15-09-C-
1920 and B-15-09-G-0932” for two different separations from Employer, this one from January
7, 2015 and a second, which occurred on December 15, 2014. (Board’s 997 C.D. 2015 Br. at 3
n.4.) “In issuing its adjudications, the Board inadvertently transposed the appeal numbers,
resulting in the findings of fact [not matching the discussion and compensable] week ending
dates listed in the adjudication headers. Claimant appealed both adjudications.” (Board’s 997
C.D. 2015 Br. at 3 n.4.) The error was not discovered “until after Claimant had filed [and
served] his briefs. On the Board’s motion to consolidate these matters, Senior Judge Quigley
ordered the appealed adjudications [] be switched.” (Board’s 997 C.D. 2015 Br. at 3 n.4.)
Senior Judge Quigley found that “the appeal at 997 C.D. 2015 [is] deemed to be an appeal of the
Board’s decision relating to the December 15, 2014 separation, and should correctly be identified
as Appeal No. B-15-09-G-0932.” Robert E. Michael v. Unemployment Compensation Board of
Review, (Pa. Cmwlth., Nos. 997 and 998 C.D. 2015, filed October 6, 2015) (single judge op.).
The companion “[a]ppeal at 998 C.D. 2015 [is] deemed to be from the Board’s decision relating
to the January 7, 2015 separation, and should correctly be identified as Appeal No. B-15-09-C-
1920.” Id. In light of Senior Judge Quigley’s Order, it follows that the file for 997 C.D. 2015
contains the record for 998 C.D. 2015, and the file for 998 C.D. 2015 contains the record for 997
C.D. 2015. Additionally, the Board’s briefs must be switched as the brief for 997 C.D. 2015
addresses Claimant’s January 7, 2015 separation and the 998 C.D. 2015 brief addresses
Claimant’s December 15, 2014 separation. Finally, certain portions of “Claimant’s briefs must
also be switched to ensure that his arguments are consistent with the facts of the applicable
appeal numbers.” (Board’s 997 C.D. 2015 Br. at 3 n.4.) We will specifically cite to the
appropriate document by the identifier listed thereon, i.e., “Claimant’s 998 C.D. 2015 Br. at __.”

       4
         In his brief, Claimant also argues that “[i]t was not clear from the Board’s Opinion
which title they were referring to” because “section 402 of the Unemployment Compensation
Law, 43 P.S. [§] 402, does not exist.” (Claimant’s 997 C.D. 2015 Br. at 8.) However, the
Section 402(b) the Board relied upon corresponds to 43 P.S. § 802(b).

                                                2
       Claimant was employed by Employer as a part-time security guard from
January 3 through January 7, 2015, until “[he] did not return to work after January
7, 2015.” (Board Decision, Appeal No. B-15-09-G-0932, Findings of Fact (FOF)
¶¶ 1-2.) Claimant filed a claim for UC benefits, stating that he was discharged by
Employer because he would not agree to work a new schedule provided to him on
January 7, 2015, which he claims was different than what had been previously
agreed upon by him and Employer’s President on January 2, 2015. (Claimant
Questionnaire, January 27, 2015.)5 Employer responded that Claimant quit work
on December 15, 2014 after he was allegedly bullied by high school students, he
came back to work for a week in January, and he walked off the job for a second
time.6 (Employer Questionnaire, January 28, 2015.)


       The Erie UC Service Center (Service Center) issued a Notice of
Determination finding Claimant eligible for UC benefits beginning with the
compensable week ending January 17, 2015. (Notice of Determination, February
9, 2015.) The Service Center determined that “Claimant was discharged for not


       5
          Claimant did not submit a reproduced record with his brief. Rule 556 of the
Pennsylvania Rules of Appellate Procedure provides that “[a] claimant-appellant in an
unemployment compensation matter may proceed in forma pauperis without applying for leave
to do so.” Pa. R.A.P. 556. Rule 2151(b) of the Pennsylvania Rules of Appellate Procedure
provides that a party proceeding in forma pauperis need not provide a reproduced record. Pa.
R.A.P. 2151(b). Because the certified record in this case is not organized correctly, see note 3,
citations to the certified record appear, in the first instance, by reference to the date filed or
mailed.

       6
         This is the companion appeal to Appeal No. 997 C.D. 2015. The previous alleged
bullying incident, which led to Claimant’s walking off the job for a second time on January 7,
2015, occurred on December 15, 2014. (Employer Record of Oral Interview, February 6, 2015.)



                                                3
agreeing to work a new schedule,” and also that “Claimant denied being involved
in the incident that caused the separation.”7               (Notice of Determination.) The
Service Center concluded that “Employer did not provide information to show that
the Claimant was involved in the incident that caused the separation,” therefore,
Employer failed to sustain its burden of proof under Section 402(e) of the Law. 8
(Notice of Determination.)


       Employer appealed the Service Center’s Determination and the matter was
assigned to a UC Referee (Referee) for a hearing to be held on March 3, 2015.
(Notice of Hearing, February 19, 2015.) At the hearing, Employer presented the
testimony of one witness, the owner of Employer (Owner), before the Referee.
(Hr’g Tr. at 1, March 3, 2015.) Claimant received one notice of the March 3, 2015
hearing, but failed to attend. (FOF ¶ 3.)


       At the hearing, Owner testified as follows. Claimant returned to work for
the week of January 3, 2015 through January 7, 2015, after he previously walked
off the job on December 15, 2014. (Hr’g Tr. at 7.) Owner had a meeting with
Claimant either before or right after Christmas to discuss his options on coming
back to work in the same part-time fill-in role at the high school, or under the same
circumstances as when he was hired, because Claimant asked to come back to
work. (Hr’g Tr. at 8-9.) Owner then agreed with Claimant, per his request, that if

       7
          It is unclear which incident the Service Center is referring to, but given our disposition
in this case, it is immaterial.

       8
         Section 402(e) provides that an employee is ineligible for UC benefits for any week
“[i]n which his unemployment is due to discharge or temporary suspension from work for willful
misconduct connected with his work.” 43 P.S. § 402(e).

                                                 4
a full-time position became available at the middle school, where Claimant
preferred to work, Employer would discuss the option of moving Claimant to the
middle school. (Hr’g Tr. at 8.)


      Owner stated that Claimant’s reason for walking off the job the second time
was that “[Claimant] didn’t feel that the hours that were being provided to him
[were] accommodating his schedule.” (Hr’g Tr. at 8.) Claimant wanted a set
schedule; however, those were not the terms agreed upon when Claimant was
hired. (Hr’g Tr. at 8.) Claimant’s role was to fill in at the high school and for
other open shifts when other employees called off. (Hr’g Tr. at 8.) When Owner
made Claimant aware of the new days Claimant would be working, “[Claimant]
refused and never showed back up.” (Hr’g Tr. at 9.) Owner denied the existence
of any agreement with Claimant pertaining to a set work schedule at the middle
school, but acknowledged his agreement with Claimant that if a full-time position
opened up at the middle school, they would discuss moving Claimant there. (Hr’g
Tr. at 9-10.)


      Upon review of the evidence, the Referee reversed the Service Center’s
Determination and found Claimant ineligible for benefits pursuant to Section
402(b) of the Law. (Referee Decision at 3, March 3, 2015.) The Referee found
that Claimant had been properly notified of the hearing, yet he failed to attend.
(Referee Decision at 2.) The Referee credited Employer’s testimony that the
Claimant was hired on a part-time fill-in basis only. (Referee Decision at 3.)
Based on Employer’s evidence, the Referee concluded that “[Claimant] resigned
because of the hours and locations he was scheduled to work.” (Referee Decision


                                       5
at 2.) Accordingly, the Referee determined that Claimant left work voluntarily
and, therefore, the case should be reviewed in accordance with Section 402(b) of
the Law, and not Section 402(e) of the Law.9 (Referee Decision at 2.) Given that
Claimant failed to attend the hearing, the Referee held that “the record does not
support a conclusion that employer made a unilateral change in the employment
agreement and the claimant has not demonstrated other circumstances that [] would
justify an award of UC benefits.” (Referee Decision at 3.)


      Claimant filed a timely appeal to the Board.           On appeal to the Board,
Claimant argued that he was confused about when the hearing was held because he
was involved in two cases simultaneously and received four hearing notices listing
different dates. Claimant also contends that he had a necessitous and compelling
reason to leave his employment because Employer broke their agreement that he
would only work one day at the high school. The Board made the following
findings of fact:

          1. Pittsburgh Protection Services employed the claimant from
          January 3 through January 7, 2015, as a part-time security guard
          earning $9.00 per hour.

          2. The claimant did not return to work after January 7, 2015.

          3. The claimant received notice of the March 3, 2015, hearing in
          this matter.




      9
         The hearing notice indicated that Section 402(b) was another issue that could be
considered at the referee hearing. (Notice of Hearing, February 19, 2015.)

                                           6
(Board Decision, Appeal No. B-15-09-G-0932, FOF ¶¶ 1-3.) Based on these
findings, the Board affirmed the Referee’s Decision and found Claimant ineligible
for UC benefits under Section 402(b) of the Law. (Board Decision, Appeal No. B-
15-09-C-1920, at 2.) The Board concluded that “[Claimant’s] negligent reading of
the [hearing] notice [was] not proper cause for his nonappearance at the hearing.”
(Board Decision, Appeal No. B-15-09-C-1920, at 1.) In its discussion, the Board
determined that Claimant timely received the only notice sent pertaining to this
appeal, which “stated the hearing was to be held [on] March 3, 2015.” (Board
Decision, Appeal No. B-15-09-C-1920, at 2.) The Board further concluded that,
because “[t]he record contain[ed] no firsthand evidence” supporting his claim for
benefits, Claimant did not meet his burden of proving a necessitous and compelling
reason for voluntarily leaving his employment. (Board Decision, Appeal No. B-
15-09-C-1920, at 1-2.) Claimant now petitions this Court for review.


      This Court’s scope of review is limited to determining whether
constitutional rights were violated, whether an error of law was committed, or
whether necessary findings of fact were supported by substantial evidence. Johns
v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa.
Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014). In UC
cases, the Board is the ultimate factfinder and, its findings are conclusive on
appeal, even if there is conflicting testimony or evidence of a contrary conclusion,
as long as its findings are supported by substantial evidence.         Middletown
Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223
(Pa. Cmwlth. 2012). “Substantial evidence is such relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.” American


                                         7
General Life and Accident Insurance Company v. Unemployment Compensation
Board of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994). “This Court is bound
‘to examine the testimony in the light most favorable to the party in whose favor
the Board has found, giving that party the benefit of all inferences that can
logically and reasonably be drawn from the testimony’ to determine if substantial
evidence exists for the Board’s findings.”            Morgan v. Unemployment
Compensation Board of Review, 108 A.3d 181, 185 (Pa. Cmwlth. 2015) (citing
United States Banknote Co. v. Unemployment Compensation Board of Review,
575 A.2d 673, 674 (Pa. Cmwlth. 1990)).


      On appeal, Claimant argues that he had proper cause for his nonappearance
at the referee hearing because he received four hearing notices and “[e]ach [n]otice
had a different hearing time and date.” (Claimant’s 998 C.D. 2015 Br. at 10.)
Claimant contends that the Referee’s office misled him by assuring him over the
phone about the hearing date for his earlier separation, which occurred on
December 15, 2014. Claimant argues that he missed the March 3, 2015 hearing
because the Referee’s office gave him the wrong information about the hearing for
his earlier separation.   Claimant also argues that he had a necessitous and
compelling reason to quit his job. Claimant contends that he should be permitted
to prove on appeal that he had a necessitous and compelling reason to quit his job
because he missed the hearing and “[t]he Referee never got a chance to hear things
from [his] view.” (Claimant’s 998 C.D. 2015 Br. at 10.)


      We first address Claimant’s assertion that he had proper cause for his
nonappearance based on his confusion over the hearing notices and should be


                                         8
given the opportunity to present his evidence before this Court. Pursuant to the
Department of Labor and Industry’s (Department) Regulations, the Board may
remand a matter for the presentation of additional evidence if a claimant who did
not attend a scheduled hearing subsequently gives timely written notice to the
Board and the Board determines that the claimant had “proper cause” for not
attending. 34 Pa. Code § 101.24(a), (c).10 “We have held that not receiving or not
timely receiving a hearing notice can constitute ‘proper cause’ for reopening a
hearing.” Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 40
(Pa. Cmwlth. 2012). However, we have also held that “a party’s own negligence
is not sufficient ‘good cause’ as a matter of law for failing to appear at a Referee’s
hearing.” Eat’n Park Hospitality Group, Inc. v. Unemployment Compensation
Board of Review, 970 A.2d 492, 494 (Pa. Cmwlth. 2008); Savage v.
Unemployment Compensation Board of Review, 491 A.2d 947, 950-51 (Pa.
Cmwlth. 1985) (stating that “[c]laimant’s own negligence [in misreading the
timely received hearing notice] was the sole cause of his not appearing at . . . the
referee’s hearing” and that “[his] own negligence is insufficient ‘proper cause,’ as



       10
          The request to reopen the hearing must be made expeditiously. According to Section
101.24(c) of the Department’s Regulations:

       A request for reopening the hearing which is not received before the decision was
       mailed, but is received or postmarked on or before the 15th day after the decision
       of the referee was mailed to the parties shall constitute a request for further appeal
       to the Board and a reopening of the hearing, and the Board will rule upon the
       request.

34 Pa. Code § 101.24(c). The Referee’s decision was mailed to Claimant on March 3, 2015.
Claimant’s Petition for Appeal, containing a request to reopen the hearing was received by the
Department on March 12, 2015, well within the fifteen day time period.

                                                 9
a matter of law, to justify his failure to appear at a referee’s hearing and warrant a
new hearing.”).


       Here, Claimant received one “Notice of Hearing” for the appeal regarding
his January 7, 2015 separation, which set forth the hearing date and time as
Tuesday, March 3, 2015 at 11:15 a.m. Claimant received four hearing notices, but
only one of those notices related to the instant matter. The other three notices
related to his other claim for UC benefits.               Claimant’s failure to read and
understand the clear hearing notice related to his January 7, 2015 separation, or to
call the referee’s office at the phone number on the hearing notice to clarify the
date, was due to his own negligence. Accordingly, we conclude that Claimant
lacked proper cause for failing to appear at the March 3, 2015 hearing.


       Since Claimant voluntarily left his employment,11 it was his burden to show
that he had cause of a necessitous and compelling nature to do so. Latzy v.
Unemployment Compensation Board of Review, 487 A.2d 121, 122 (Pa. Cmwlth.
1985). To satisfy this burden, Claimant must demonstrate 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 claimant acted with ordinary common sense; and, (4) the claimant made a

       11
          Claimant contends that he was “fired” by Employer on account of Employer’s alleged
statement that if Claimant could not work the schedule, he would be “done.” (Claimant’s 998
C.D. 2015 Br. at 9-10.) Where an employer gives an employee the option of staying or leaving,
and the employee leaves, it is considered a voluntary quit. Stugart v. Unemployment
Compensation Board of Review, 85 A.3d 606, 613 (Pa. Cmwlth. 2014). Here, Claimant was
given the choice to either work the new schedule, or to leave and be done with his employment.
Claimant chose not to work the new schedule and to leave his job, therefore, he voluntarily quit.

                                               10
reasonable effort to preserve [his] employment.” Brunswick Hotel & Conference
Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657,
660 (Pa. Cmwlth. 2006). “Mere dissatisfaction with one’s working conditions
does not constitute cause of a necessitous and compelling nature for terminating
one’s employment.” Id.


      Where evidence supporting a party’s position is not offered before the
referee at the referee hearing, nor otherwise made a part of the certified record, the
evidence cannot be considered by this Court on appeal.                  Rothstein v.
Unemployment Compensation Board of Review, 114 A.3d 6, 10 (Pa. Cmwlth.
2015). Because there is no evidence in the record to support Claimant’s contention
that he had necessitous and compelling reasons to leave his employment, Claimant
did not satisfy his burden.


      For the foregoing reasons, the Board’s Order is affirmed.



                                          ________________________________
                                           RENÉE COHN JUBELIRER, Judge




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Robert E. Michael,                    :
                                      :
                       Petitioner     :
                                      :
            v.                        :   No. 998 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER

      NOW, March 9, 2016, the Order of the Unemployment Compensation
Board of Review relating to Appeal No. 998 C.D. 2015 addressing Robert E.
Michael’s January 7, 2015 separation from employment, entered in the above-
captioned matter, is hereby AFFIRMED.


                                      ________________________________
                                       RENÉE COHN JUBELIRER, Judge
