Spivey v. Unemployment Comp. Bd. of Review, No. 1044 C.D. 2019
Citation | 235 A.3d 433 |
Decision Date | 06 July 2020 |
Docket Number | No. 1044 C.D. 2019 |
Parties | Ernest SPIVEY, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent |
Court | Commonwealth Court of Pennsylvania |
Aaron Sommer, Philadelphia, for Petitioner.
Daniel R. Schramm, Assistant Counsel, Harrisburg, for Respondent.
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY JUDGE COVEY
Ernest Spivey (Claimant) petitions this Court for review of the Unemployment Compensation (UC) Board of Review's (UCBR) June 17, 2019 order affirming the Referee's decision denying Claimant UC benefits under Sections 401(d)(1) and 402(b) of the UC Law (Law).1 Claimant presents one issue for this Court's review: whether the UCBR erred by concluding that Claimant voluntarily separated from his employment when he was undergoing in-patient substance abuse treatment.2 After review, we affirm.
Northport Distribution LLC (Employer) employed Claimant as a forklift operator from July 7, 2017 to November 30, 2018. On December 3, 2018, Claimant's parole officer administered a drug test, and Claimant tested positive for alcohol, marijuana and cocaine. Claimant's parole officer immediately detained Claimant for a technical parole violation. As a result thereof, Claimant was held in detoxification until December 10, 2018, and, thereafter, entered into an in-patient substance abuse treatment program for 45 to 90 days.
On December 10, 2018, upon Claimant's release from detoxification, he notified his supervisor that he would be entering an in-patient substance abuse treatment program and would be unavailable for work for up to 90 days. Claimant also informed his union representative.
Claimant was in the in-patient substance abuse treatment program from December 11, 2018 to January 25, 2019. On January 25, 2019, Claimant attempted to contact Employer about returning to work, but he was unable to speak to anyone. Also, on January 25, 2019, Claimant met with his union president, who informed Claimant that he would look into Claimant's work situation. Claimant continued to call Employer on a daily basis thereafter, with no response. Claimant followed up with his union president who advised him that there was no work for him.
Claimant applied for UC benefits. On February 22, 2019, the Scranton UC Service Center determined that Claimant was ineligible for UC benefits under Sections 401(d)(1) and 402(b) of the Law. Claimant appealed, and a Referee hearing was held on March 28, 2019.3 On April 1, 2019, the Referee affirmed the UC Service Center's determination. Claimant appealed to the UCBR. On June 17, 2019, the UCBR affirmed the Referee's decision. Claimant appealed to this Court.4
Preliminarily, Section 402(b) of the Law states that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature[.]" 43 P.S. § 802(b). Accordingly, "[a] claimant seeking [UC] benefits bears the burden of establishing either that (1) his separation from employment was involuntary or (2) his separation was voluntary but he had cause of a necessitous or compelling nature that led him to discontinue the relationship." Greenray Indus. v. Unemployment Comp. Bd. of Review , 135 A.3d 1140, 1143 (Pa. Cmwlth. 2016) (quoting Watkins v. Unemployment Comp. Bd. of Review , 65 A.3d 999, 1004 (Pa. Cmwlth. 2013) ).
This Court has ruled:
Thiessen v. Unemployment Comp. Bd. of Review , 178 A.3d 255, 260 (Pa. Cmwlth. 2018) (emphasis added; citations omitted).
Claimant argues that the UCBR erred by determining that he voluntarily separated from his employment when he was undergoing in-patient substance abuse treatment. Claimant specifically contends that the UCBR's conclusion that he voluntarily quit his job was not supported by substantial evidence, since there was no record evidence that he intended to abandon his job when he entered treatment. Claimant asserts that he took a temporary leave of absence, and the record evidence established that he intended to and did attempt to return to work thereafter.
This Court has explained:
Roberts v. Unemployment Comp. Bd. of Review , 61 Pa.Cmwlth. 21, 432 A.2d 646, 648 (1981) (emphasis added); see also Baer v. Unemploymet Comp. Bd. of Review .5
Here, the UCBR found as facts:
UCBR Dec. at 1.6 Clearly, Claimant left his employment "without action by [ ] [E]mployer[.]" Roberts , 432 A.2d at 648 (quoting Labor & Industry , 3 A.2d at 214 ). Accordingly, Claimant voluntarily left his employment.
Having determined that Claimant voluntarily left his employment, this Court must now rule on whether Claimant is eligible for UC benefits under Section 402(b) of the Law. Pursuant to Section 3 of the Law, the purpose of the Law is to provide UC benefits for "persons unemployed through no fault of their own ." 43 P.S. § 752 (emphasis added). Although the UCBR did not rely on Section 3 of the Law in reaching its decision in this case, this Court has determined that it is a valid interpretive aid when analyzing Section 402(b) of the Law. See Kawa v. Unemployment Comp. Bd. of Review , 132 Pa.Cmwlth. 446, 573 A.2d 252 (1990) ; see also Bostic v. Unemployment Comp. Bd. of Review , 2010 WL 9513071(.
In determining fault, this Court has historically and consistently concluded that an employee is responsible for the consequences of his alcohol and drug use. See Bostic (; see also )Kawa (. )
Here, Claimant stated, in relevant part: Certified Record (C.R.) Item 4 at 1 (Claimant's Initial UC Oral Interview). Further, Claimant testified at the Referee hearing that his detention and inability to work was due to his positive drug test on December 3, 2018, which violated his parole conditions. See C.R. Item 9 (Notes of Testimony, March 28, 2019) at 4-7.
Claimant's testimony is substantial evidence upon which the UCBR properly found that Claimant's absence from work due to his in-patient drug program was the result of his marijuana, cocaine and alcohol use while on parole. Therefore, although Claimant did not expressly quit his job, his conscious decision to consume alcohol and drugs despite being fully aware of the potential consequences was sufficient for the...
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