Morgan v. Unemployment Comp. Bd. of Review

• Decision Date: 14 January 2015
• Docket Number: No. 1896 C.D. 2013,1896 C.D. 2013
• Citation: 108 A.3d 181
• Parties: Brian K. MORGAN, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

108 A.3d 181

Brian K. MORGAN, Petitioner

v.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

No. 1896 C.D. 2013

Commonwealth Court of Pennsylvania.

Submitted Oct. 8, 2014.

Decided Jan. 14, 2015.

Martin J. Clancy, Pittsburgh, for petitioner.

Jacqueline Wolfgang, Harrisburg, for respondent.

BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. McGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.

Opinion

OPINION BY Judge COHN JUBELIRER.

Brian K. Morgan (Claimant) petitions for review of the September 20, 2013, Order of the Unemployment Compensation (UC) Board of Review (Board) denying Claimant UC benefits pursuant to Section 402(b) of the UC Law (Law).¹ On appeal, Claimant argues that the Board's denial was improper because: (1) two of the Board's findings are not supported by substantial evidence; and (2) Coal Innovations, LLC's (Employer) decision to stop paying for commuting expenses was a substantial and unilateral change in the terms of Claimant's employment that constituted a necessitous and compelling reason to resign. Discerning no error, we affirm.

Following Claimant's resignation from Employer, Claimant filed a claim for UC benefits with the UC Service Center. The UC Service Center denied Claimant UC benefits, finding that Claimant failed to meet his burden of proof under Section 402(b) of the Law. (Notice of Determination, R. Item 7.) Claimant appealed to the UC Referee. After an evidentiary hearing, at which Claimant and Employer, with two witnesses, appeared and testified, the UC Referee also determined that Claimant was ineligible for UC benefits because he failed to satisfy his burden of proof under Section 402(b) of the Law. Claimant appealed the UC Referee's decision to the Board.

Upon review, the Board made the following findings of facts:

1. The claimant was last employed as a foreman by [Employer] from October 18, 2010, at a final rate of $22 per hour, and his last day of work was March 28, 2013.

2. When the claimant first began working for the employer, the claimant commuted to and from work with the employer's director of processing (Director).

3. In approximately July of 2011, the claimant began using the employer's vehicle, gas, and EZ pass to travel to and from the workplace.

4. In approximately September of 2012, [Employer] was purchased by another company.

5. On March 28, 2013, the employer informed the claimant that he was no longer permitted to use the employer's vehicle, gas, and EZ pass to travel to and from work.

6. In response to the employer, the claimant said he was quitting his employment.

7. The employer suggested that the claimant reconsider his decision to resign and informed him that he could commute with the employer's [Director].

8. The claimant personally owns two vehicles.

9. The claimant quit his employment because he did not have affordable transportation to the employer's workplace.

(Board Decision, Findings of Fact (FOF) ¶¶ 1–9.)

Based on its findings, the Board concluded that:

Here, the employer credibly testified that immediately after it informed the claimant that he would no longer be permitted to use the employer's company vehicle, gas, and EZ pass to travel to and from the employer's workplace, the claimant quit his employment. Prior to quitting the claimant did not search for or investigate other means of transportation. The employer also credibly testified that it informed the claimant he could commute with the employer's [Director], which he had done in the past. Nevertheless, the claimant did not accept the employer's offer of transportation and did not attempt to preserve his employment. Additionally, the claimant presented insufficient credible evidence to show that he did not have affordable transportation. As such, the Board cannot conclude that the claimant quit his employment for necessitous and compelling reasons.

In his appeal, the claimant's counsel asserts that the employer's decision to disallow the claimant to use the company vehicle, gas, and EZ pass was a substantial and unilateral change in his terms of employment because it was in effect a reduction in his salary. However, during the hearing the claimant testified that he quit his employment because he did not have affordable transportation; therefore, the Board does not find credible the assertion that the claimant quit his employment due to a change in his salary. As such, the Board concludes that the claimant quit his employment because of transportation and not because of a change in his salary. Even if the Board concluded that the claimant quit his employment because of a change in his salary, given the employer's testimony that other means of transportation [were] available, which would have negated additional transportation costs, the Board cannot conclude that a substantial and unilateral change in the terms and conditions of employment occurred.

(Board Decision at 2–3.) Therefore, the Board denied Claimant UC benefits under Section 402(b) of the Law. Claimant now petitions this Court for review of the Board's Order.²

In support of his appeal, Claimant argues that: (1) the Board's findings of fact 7 and 9 are not supported by substantial evidence; and (2) the Board erred when it conducted an availability of transportation analysis instead of a substantial and unilateral change in the terms of employment analysis to decide that Claimant did not have a necessitous and compelling cause to resign under Section 402(b) of the Law.

Claimant first argues that the Board's finding of fact 7—that Employer suggested to Claimant that he should reconsider resigning because he could commute with Director—is not supported by substantial evidence. Claimant argues that instead of offering alternative transportation, Employer merely informed Claimant it would no longer pay for his transportation.

The Board's findings of fact must be supported by “[s]ubstantial evidence [which] is defined as ‘such relevant evidence which a reasonable mind would accept as adequate to support a conclusion.’ ” Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 335 (Pa.Cmwlth.2006) (quoting Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa.Cmwlth.1999) ). “The Board's findings are conclusive on appeal so long as the record, when viewed in its entirety, contains substantial evidence to support the findings.” Western & Southern Life Insurance Co., 913 A.2d at 335. 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. United States Banknote Co. v. Unemployment Compensation Board of Review, 133 Pa.Cmwlth. 317, 575 A.2d 673, 674 (1990). Moreover, “even if there is contrary evidence of record, the Board's findings of fact are binding upon the Court where supported by substantial evidence.” Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728, 731 (Pa.Cmwlth.2000).

In the instant case, the Board's finding that Employer suggested to Claimant that he could commute with Director, instead of resigning, is supported by substantial evidence. When Claimant was asked during the UC Referee's hearing about how he originally commuted to work he affirmed that he rode “to and from work with John Ross ... the [Director]” from when he first started working for Employer in 2010 “until approximately ... April or May of 2011.” (Hr'g Tr. at 7, R. Item 13.) Later in the hearing, Employer's general manager of administration (Manager) recounted what occurred after Claimant was notified that Employer would no longer pay for his vehicle, gas, and EZ pass:

[Claimant] said that's not a problem for me, and [Manager] said, oh good. [Claimant] said because I resign. And [Manager] told [Claimant] you don't have to resign, John Ross [the Director] can give you a ride home, you can, you can figure out something else, but you're just not going to do it on the company dime anymore. [Claimant] didn't say anything else, he didn't say about being an economic hardship, not being able to afford it, he said nothing else. In fact [Claimant] looked pretty smug, fine, I resign. And then actually [Manager] ... [told Claimant] to gather his personal belongings, leave all company property on the property, and that John Ross would give him a ride home at the end of the day, and that was it....

(Hr'g Tr. at 21.)

A reasonable mind could accept this testimony as adequate to support a conclusion that Manager informed Claimant that he could commute with Director. Western & Southern Life Insurance Co., 913 A.2d at 335. In light of the fact that Claimant testified that he previously commuted with Director, the Board could logically and reasonably infer that Manager's statement that Claimant could get a ride home with Director was a suggestion to commute with Director. United States Banknote Co., 575 A.2d at 674. Moreover, Manager's statement that Claimant did not have to resign and that Director would give him a ride home is, to some extent, a non-sequitur in the absence of a suggestion that Claimant commute with Director. Accordingly, we conclude that there is substantial evidence in the record to support the Board's finding of fact 7.

Next, Claimant argues that the Board's finding of fact 9—that Claimant quit his employment because he did not have affordable transportation to work—is not supported by substantial evidence. Claimant argues that he actually quit because Employer's decision made his commuting expense unaffordable. The Board argues that this issue has been waived because Claimant did not challenge finding of fact 9 in his Petition for Review.

At the time Claimant filed his petition for review, Rule 1513(d) of the...