IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lisa Bowen,
: :
Petitioner
: :
v.
:
NO. 1642 C.D. 2001
:
Unemployment Compensation Board
:
of Review,
:
Submitted: November 9, 2001
:
Respondent
:
BEFORE:
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY
FILED: March 13, 2002
Lisa Bowen (Claimant) petitions for review from an order of the
Unemployment Compensation Board of Review (Board) which vacated the decision
of an unemployment compensation referee (referee) and denied benefits. We affirm.
Claimant was employed as a dental hygienist by Dr. Patrick Adonizio
(Employer) for five years until her last day of work on January 17, 2001 when she
voluntarily terminated her position with Employer. Claimant filed an application for
unemployment compensation benefits. By Notice of Determination dated
February 12, 2001, Claimant's application for benefits was granted by the Scranton
UC Service Center (UC Center) on the basis that Claimant was not ineligible for
benefits under Section 402(b) of the Unemployment Compensation Law (Law)
because she had a necessitous and compelling reason to terminate employment. On
February 28, 2001, Employer appealed the UC Center's Notice of Determination and
the matter was heard before a referee. The referee determined that Employer failed
to perfect its appeal of the eligibility issue and dismissed Employer's appeal.
Employer appealed the referee's decision to the Board.
The Board made the following findings of fact. The Board found that
Claimant had conflicts with Employer in the past where the Employer allegedly
raised his voice to Claimant, but she did not terminate her employment for any
alleged prior incident. Finding of Fact (F.F.) 2. On January 17, 2001, Employer
called all of the employees together and confronted Claimant about some comments
she had made regarding Employer and another employee. F.F. 3. Employer asked if
Claimant had a problem with the way Employer treated the other employee because
he heard that Claimant accused Employer of showing favoritism toward the other
employee. F.F. 4. Claimant admitted that she had commented that Employer treated
two employees, and one in particular, as "pets". F.F. 5. Employer was angry about
Claimant's comments, which he perceived as accusations that he had something
other than a professional relationship with the other employee. F.F. 7. Claimant's
comments caused difficulty between Employer and his wife, who was also an
employee. F.F. 8. Employer advised Claimant that her comments were considered
insubordinate and that she owed him and his wife an apology. F.F. 9. Employer
stated that he could have discharged Claimant but chose not to do so. F.F. 10.
Claimant was embarrassed about being reprimanded in front of the other employees,
and became upset. F.F 11. Claimant worked for several more hours before
informing Employer that she could no longer work there because she was
embarrassed. F.F. 12. Claimant voluntarily terminated her employment because she
was dissatisfied with being reprimanded in front of the other employees. F.F. 13.
The Board further found that the initial Notice of Determination was
mailed to Employer at an incorrect address. F.F. 14. Employer did not receive the
Notice of Determination, and only became aware that Claimant had been granted
benefits after speaking to a Department of Labor and Industry (Department)
representative on the telephone on February 28, 2001. F.F. 15. Employer faxed an
appeal to the UC Center on that same date. F.F. 16. Employer's appeal is deemed to
be timely filed. F.F. 17. Employer did not mail its appeal to the Employer's Charge
Unit, as Employer intended to appeal the merits of the eligibility determination.
F.F. 18.
Based upon these findings, the Board concluded that Employer's appeal
is deemed timely filed due to the lack of proper notification. The Board further
concluded that Employer's appeal encompassed an appeal on the merits of the
eligibility determination. The Board concluded that Claimant terminated her
employment because she was upset and embarrassed that Employer reprimanded her
in front of her co-workers. The Board concluded that Claimant failed to meet her
burden of proving that a necessitous and compelling reason existed for her voluntary
termination. By order dated June 19, 2001, the Board vacated the decision of the
referee and denied Claimant benefits.
Claimant now petitions for review with this Court. Claimant has
presented the following issues for our review:
1. Did Employer file a proper appeal from the eligibility
determination.
2. Was Claimant's termination of her employment with cause
of a necessitous and compelling nature.
Claimant contends that the Board erred in determining that Employer
perfected its appeal from the UC Center's eligibility determination. We disagree.
Under the Law, an employer's appeal from an eligibility determination
is separate and distinct from the filing of a request for relief from charges. First
National Bank of Bath v. Unemployment Compensation Board of Review,
619 A.2d 801, 803 (Pa. Cmwlth. 1992). An employer seeking to challenge a
determination of eligibility must do so in accordance with the requirements of
Section 501(e) of the Law, 43 P.S. §821(e). Section 501(e) provides:
Unless the claimant or last employer or base-year
employer of the claimant files an appeal with the board,
from the determination contained in any notice required
to be furnished by the department under section five
hundred and one (a), (c) and (d), within fifteen calendar
days after such notice was delivered to him personally, or
was mailed to his last known post office address, and
applies for a hearing, such determination of the
department, with respect to the particular facts set forth
in such notice, shall be final and compensation shall be
paid or denied in accordance therewith.
43 P.S. §821(e) (footnote omitted). An employer "seeking relief from charges is
requesting a tax exemption" under Section 302 of the Law, 43 P.S. §782.
First National Bank; Department of Labor and Industry v. Unemployment
Compensation Board of Review, 501 A.2d 297 (Pa. Cmwlth. 1985).
The appeal instructions accompanying the Notice of Determination
underscore this distinction, providing:
Under Section 501(e) of the Pennsylvania
Unemployment Compensation Law, this determination
becomes final unless an appeal is timely filed. If you
disagree with this determination and wish to file an
appeal, your appeal must be filed on or before the last
day to appeal shown on this determination.
There are three ways to file an appeal: by mail or by
FAX to a UC Service Center ... . Regardless of the
method you choose, your request for appeal must be
include the claimant's name and Social Security Number,
a statement specifically requesting an appeal from this
determination, the reason for filing the appeal, and your
signature.
***
·
If you wish to file your appeal by FAX, your
faxed appeal must be received by the close of
business on or before the last day to appeal shown
on this determination. Please complete Section 1
of the enclosed Petition for Appeal or FAX a letter
of appeal to: 570-562-4872.
CONTRIBUTING BASE YEAR EMPLOYER: This is
not a determination on relief from charges. However,
this determination may affect a request for relief from
charges.
·
An appeal to a Claimant's eligibility and a
request of relief from charges MUST BE FILED
SEPARATELY.
·
For procedures and time limits for requesting
relief from charges, see Form UC-44FR previously
sent to you with the Claimant's Notice of Financial
Determination or contact the Employers' Charge
Section, 7th Floor, Labor & Industry Building,
7th & Forster Streets, Harrisburg, PA 17121.
A REQUEST FOR RELIEF FROM CHARGES,
WHETHER GRANTED OR NOT, WILL HAVE NO
EFFECT ON THIS DETERMINATION.
Certified Record (C.R.) Item No. 4. In short, an employer seeking to challenge a
Claimant's eligibility determination must do so by filing an appeal, whereas an
employer seeking to request relief from charges must do so separately by filing a
request for relief. Strict construction is required. First National Bank.
Herein, Employer did not receive the Notice of Determination as it was
sent to an incorrect address, and thus did not have the benefit of the above
instructions at his disposal. Nevertheless, upon learning that Claimant had been
granted benefits, Employer immediately faxed a letter to the UC Center. In the letter,
Employer stated:
Please consider this correspondence an appeal to request
relief from charges for the above-mentioned
unemployment claim.
While at first glance, Employer's letter appears to be a request for relief from
charges, Employer's letter continues:
This employee was not discharged; she quit my employ
with out [sic] good cause attributable to either the
employment or working conditions.
Any additional information will be furnished to the referee
upon request.
The reason this appeal appears untimely is that I never
received a determination of benefits.
C.R. Item No. 5. Employer credibly testified that, with this letter, he intended to
appeal the eligibility determination. Employer's intent is further corroborated by the
fact that Employer faxed his appeal to the UC Center, which handles determination
appeals, and did not send his appeal to the Employer's Charge Section, which
handles requests for relief from charges. Thus, we conclude that the Board did not
err in determining that Employer's appeal sufficiently encompassed an appeal of the
eligibility determination.
Next, Claimant contends that the Board erred in concluding that the
termination of her employment was without cause of a necessitous and compelling
nature. We disagree.
A claimant seeking to collect unemployment compensation bears the
burden of proving that a voluntary termination of employment was for "cause of a
necessitous and compelling nature." Mutual Pharmaceutical Company, Inc. v.
Unemployment Compensation Board of Review, 654 A.2d 37 (Pa. Cmwlth. 1994);
Steinberg Vision Associates v. Unemployment Compensation Board of Review,
624 A.2d 237 (Pa. Cmwlth. 1993). A cause of a necessitous and compelling nature
is one that results from circumstances which produce pressure to terminate
employment which is both real and substantial and which would compel a
reasonable person under the circumstances to act in the same manner. Monaco v.
Unemployment Compensation Board of Review, 523 Pa. 41, 565 A.2d 127 (1989).
In establishing that a voluntary termination was reasonable, a claimant
"must establish that he acted with ordinary common sense in quitting his job, that
he made a reasonable effort to preserve his employment, and that he had no other
real choice than to leave his employment." Stroh-Tillman v. Unemployment
Compensation Board of Review, 647 A.2d 660, 662 (Pa. Cmwlth. 1994). If a
claimant does not take all "necessary and reasonable steps to preserve the
employment relationship, he or she has failed to meet the burden of demonstrating
necessitous and compelling cause." PECO Energy Company v. Unemployment
Compensation Board of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 1996). Whether or
not one has "cause of a necessitous and compelling nature" to quit employment so as
to be entitled to collect unemployment compensation benefits is a question of law
subject to review by this Court. Chamoun v. Unemployment Compensation Board
of Review, 542 A.2d 207 (Pa. Cmwlth. 1988).
In the case before us, Claimant voluntarily terminated her
employment after Employer reprimanded her. Employer reprimanded Claimant
because she had accused him of showing favoritism toward another employee.
This reprimand was done in front of Claimant's co-workers. While Claimant
testified that Employer yelled and screamed at Claimant, banging on the desk and
shouting that the only reason she was there was because of his wife and if it were
up to him he would have fired her on the spot, the Board did not credit this
testimony and did not find that Employer had engaged in abusive behavior in the
reprimand. The Board found that Employer's reprimand was not unjust as
Claimant admitted making the comments about Employer, which Employer
perceived as accusations that he had an improper relationship with another employee.
Based upon these findings, which are supported by the testimony of
Employer, the Board concluded that Claimant terminated her employment because
of subjective feelings of embarrassment and that such did not constitute
necessitous and compelling reason to terminate employment. In absence of unjust
accusations or abusive conduct, resentment of reprimand does not constitute
"necessitous or compelling reason" for resigning from employment for purposes of
unemployment compensation. Sileo v. Unemployment Compensation Board of
Review, 419 A.2d 223 (Pa. Cmwlth. 1980); Unemployment Compensation Board
of Review v. Ruffel, 336 A.2d 670 (Pa. Cmwlth. 1975). We, therefore, conclude
that the Board did not err in finding that Claimant is ineligible for unemployment
compensation under Section 402(b) of the Law.
Accordingly, the order of the Board is affirmed.
_________________________________
JAMES R. KELLEY, Senior Judge