Pancoast v. Unemployment Comp. Bd. of Review

• Decision Date: 20 September 2011
• Docket Number: No. 263 C.D. 2011,263 C.D. 2011
• Parties: Kristina L. Pancoast, Petitioner v. Unemployment Compensation Board of Review, Respondent
• Court: Pennsylvania Commonwealth Court

Kristina L. Pancoast, Petitioner v. Unemployment Compensation Board of Review, Respondent

No. 263 C.D. 2011

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: July 1, 2011

September 20, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT

Kristina L. Pancoast (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) which denied her appeal of a Referee's determination that her weekly benefit amount should be reduced as a result of a voluntary quit from a part-time job. Discerning no error by the Board, we affirm.

Claimant last worked for Woodlyn Associates, LLC (Employer) as a part-time billing clerk from June 7, 2010, through June 25, 2010, at a final rate of pay of $14.00 per hour. Claimant was assigned to a single client of Employer, Linwood Care Center, which required Claimant to drive to Linwood's office in New Jersey and review and copy medical records. Once she collected the necessary records, Claimant did Employer's bill collection services from her home or at Employer's office. After her separation from employment on June 25, 2010, Claimant applied for unemployment benefits, which Employer contested.

The UC Service Center determined that Claimant had voluntarily quit and was ineligible for benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).¹ Because Claimant's job was part-time her benefit was limited to her weekly part-time earnings, or $138. See Unemployment Compensation Board of Review v. Fabric, 354 A.2d 905 (Pa. Cmwlth. 1976). The UC Service Center also found that, pursuant to Section 804(a) of the Law,² Claimant received a fault overpayment of $798, and that pursuant to Section 2002(f) of the American Recovery and Reinvestment Act of 2009,³ she received a fraud overpayment of $25. Claimant appealed, and a hearing was held before a Referee on October 4, 2010.

Claimant testified about how her employment ended. According to Claimant, she sent an e-mail to Employer's president, Arthur Krauss, on June 26, 2010, with the subject line "Linwood status update." Certified Record, Item 3 (C.R. ___), Exhibit SC-20. Claimant's e-mail summarized a list of items Claimantneeded from Linwood and stated, "I'd prefer to wait to go back until the below is ready so I can bring everything back at once." Id. When Claimant got no response to her e-mail she assumed the Linwood project was completed and initiated no further contact with Employer. Claimant did not learn that Employer believed she had quit until she applied for unemployment benefits.

Arthur Krauss testified for Employer. Krauss testified that on Monday, June 21, 2010, he sent Claimant an e-mail asking for a status update on the Linwood project. That same day, Claimant responded to him by e-mail that she was trying to determine when she would be able to return to the Linwood office to finish collecting the records. Claimant explained:

Next week starts my kids summer swim team involvement which requires me to drive them to/from practice each week morning (I can't count on my oldest to drive because she works as well). This is why I've been trying to politely decline continuing to work with you. I don't need to bore you with the minutia of my life, but I knew things were going to get crazy when the kids finished school last week.

So, I think the best bet is to go Wednesday. I will get there as early as I possibly can, and at least there aren't any time constraints as to when I HAVE to be back on Wednesday. I'm nervous that I can't make it back by 7 tomorrow - the traffic is such a huge variable and the ride is stressful enough without worrying about the time. I can probably drop the paperwork to you on Thursday on our way to the game.

Then I'm sorry to say, I think that'll do it for me. I wish you well with the project.

C.R. 10, Employer's Exhibit E-1. Krauss interpreted this e-mail to mean that Claimant had resigned from her position. He recalled that Claimant told him again, first over the phone, and then in person, that it was "the end of her job." C.R. 10, Notes of Testimony, October 4, 2010, at 12-13. Krauss testified that theLinwood project was still ongoing as of the date of the hearing and, if Claimant had not quit, continuing work would have been available to her. He estimated that between 10 and 15 hours of work would have been available per week.

As for the e-mail Claimant claimed she sent to Krauss on June 26, 2010, Krauss testified that Employer never received it. To support that assertion Krauss offered into evidence a printout of the results of a search he conducted of Employer's e-mail account. The printout identified all e-mail correspondence sent from or pertaining to Claimant from May 21, 2010, to July 2, 2010. There was no record of an e-mail from Claimant on June 26, 2010. Claimant did not object to this e-mail log being admitted into evidence.

Upon further questioning by the Referee, Claimant testified that Employer misinterpreted her June 21 e-mail. Claimant explained that she intended the e-mail to mean that once she completed the project they would need to discuss whether she could continue working for Employer on other projects. She claimed she never intended to quit her job. Furthermore, Claimant stated that the June 26 e-mail showed her intent to remain employed because she asked for further instructions. Claimant acknowledged that she did not make any effort to contact Employer after no one responded to that e-mail. She interpreted the silence to mean that the Linwood project was completed.

The Referee found that the language of Claimant's June 21 e-mail affirmatively showed that she quit her job with Employer when continuing work was available. Accordingly, the Referee affirmed the UC Service Center's determination that Claimant voluntarily quit without good cause and, therefore, was ineligible for benefits under Section 402(b) of the Law. Because Claimant worked for Employer during the week ending June 26, 2010, the Referee foundthat there was no overpayment for that week. Accordingly, she modified the UC Service Center's award to reflect that Claimant received a fault overpayment for all claim weeks ending July 3, 2010, to August 21, 2010.⁴ Finally, the Referee reversed the UC Service Center's determination of a fraud overpayment of Federal additional compensation.

Claimant appealed to the Board.⁵ The Board affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(b) of the Law and that there was no fraudulent overpayment of Federal benefits. The Board modified the Referee's decision regarding the fault overpayment of state benefits, holding that it was a non-fault overpayment. Claimant now petitions for this Court's review.⁶

On appeal, Claimant presents five questions for our review, which we restate as follows. First, Claimant alleges that the Referee's determination is based upon findings of fact that are not supported by substantial evidence in the record. Next, Claimant contends that the Referee erred by not finding that Employer received her second e-mail. She posits that the Referee violated her due process rights by admitting Employer's e-mail log into evidence. Finally, Claimant requests court costs. For the reasons that follow, we conclude that all of Claimant's arguments lack merit.

The Unemployment Compensation Law was enacted in order to assist people who become unemployed through no fault of their own. Section 3 of the Law, 43 P.S. §752.⁷ Accordingly, Section 402(b) of the Law provides that an employee will be ineligible for compensation if her "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature...." 43 P.S. §802(b).⁸ If an employee fails to to take all reasonable steps to preserve her employment, her separation will be considered a voluntary termination.Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009).

Before this Court, Claimant contends that the Referee's findings of fact two through five are "not supported by substantial evidence of record and are taken out of context." Claimant's Brief at 13. Accordingly, Claimant argues that the Board erred in basing its decision upon these facts. The challenged findings of fact state:

2. By email on June 21, 2010, the claimant informed the employer that she was having difficulty scheduling time to perform the employer's work due to other employment, her spouse's medical appointment and her children's activities.

3. The claimant explained she had been trying to politely decline continuing work.

4. The claimant concluded, "Then I'm sorry to say, I think that'll do it for me. I wish you well with the project."

5. The claimant did not inform the employer of what aspect, if any, of the employment she was unable to accept.

Referee's Decision, Findings of Fact 2-5. Specifically, Claimant argues that findings of fact two through four are taken out of context because she never informed Employer that she could not continue her employment. Claimant argues, further, that her June 26 e-mail, in which she asked for further instruction on how to proceed, clearly contradicts finding of fact number five. We disagree with Claimant's assertions.

It is well-settled that the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine credibility of witnesses, and to determine the weight to be accorded evidence. See UnemploymentCompensation Board of Review v. Wright, 347 A.2d 328, 329 (Pa. Cmwlth. 1975). Accordingly, we will not disturb those findings on appeal, unless they are not supported by substantial evidence. Dulgerian v.Unemployment Compensation Board of Review, 439 A.2d 1342, 1344 (Pa. Cmwlth. 1982).

A review of the record reveals that the Referee's findings of fact two through five are supported by substantial evidence. Each...