Van Hawk Painting Company, Inc. v. Unemployment Compensation Board of Review, No. 1979 C.D. 2008 (Pa. Commw. Ct. 7/10/2009)

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Van Hawk Painting Company, Inc., Petitioner, v. Unemployment Compensation Board of Review, Respondent

No. 1979 C.D. 2008.

No. 1980 C.D. 2008.

Commonwealth Court of Pennsylvania.

Submitted: April 17, 2009.

Filed: July 10, 2009.

Before: LEADBETTER, President Judge, SIMPSON, Judge, FRIEDMAN, Senior Judge.

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON.

In these consolidated appeals, Van Hawk Painting Company, Inc. (Employer) challenges two orders of the Unemployment Compensation Board of Review (Board). In its first order, the Board granted Barbara Bianchini (Claimant) unemployment compensation benefits based on its determinations that Employer discharged Claimant and did not prove she committed disqualifying willful misconduct. See Section 402(e) of the Unemployment Compensation Law (Law).¹ In its second order, the Board determined, as a result of its decision that Claimant was eligible for unemployment benefits, Claimant did not receive an overpayment of benefits. See Section 804(b) of the Law, 43 P.S. §874(b). Discerning no error in the Board's orders, we affirm.

I. Facts

A. Entitlement to Benefits

Beginning in July 2006, Claimant worked for Employer as its full-time receptionist. On May 23, 2007, Claimant sustained neck, back and knee injuries as a result of an automobile accident. Claimant maintained weekly contact with her immediate supervisor, advising Employer of her condition.

In early-September 2007, Employer hired a temporary employee and divided Claimant's responsibilities among three permanent employees and the temporary employee.

In late-September 2007, Claimant contacted Employer and indicated she could return to work with restrictions. In response, Employer informed Claimant it filled her position and advised Claimant to retrieve her belongings from Employer's office. Claimant subsequently contacted her supervisor and arranged to obtain her belongings.

Shortly thereafter, Claimant applied for unemployment benefits, claiming Employer laid her off due to a lack of work. A UC service center denied benefits under Section 402(b) of the Law, 43 P.S. §802(b) (relating to voluntary quits). Notably, Claimant appealed, arguing she did not voluntarily quit, but rather Employer refused her request to return to work. A notice of hearing subsequently placed both Sections 402(b) and 402(e) at issue. At hearing, Claimant testified, among other things, her separation from employment was involuntary. After hearing, a referee denied benefits pursuant to Section 402(b). Claimant appealed to the Board.

On appeal, the Board determined Claimant did not voluntarily quit her position; rather, based on Claimant's credited testimony, the Board determined Employer discharged Claimant and did not prove she committed willful misconduct. The Board further determined Claimant was able and available for suitable work pursuant to Section 401(d)(1) of the Law, 43 P.S. §801(d)(1). As such, the Board awarded benefits.

B. Overpayment

Claimant initially applied for unemployment benefits effective September 23, 2007. She filed claims for the compensable weeks ending October 6, 2007 through January 26, 2008, for which she received a total of $5,984.00 in benefits.

Based on its initial denial of benefits, the Department of Labor and Industry (Department) issued a determination establishing a non-fault overpayment of $5,984.00. Claimant appealed this determination, and a referee affirmed based on his decision that Claimant was ineligible for benefits. On further appeal by Claimant, the Board reversed, concluding there was no overpayment because, based on the Board's decision, Claimant was eligible for benefits.

Employer appealed the Board's order that granted Claimant benefits as well as the Board's order that determined Claimant did not receive an overpayment of benefits. This Court consolidated Employer's appeals. These matters are now before us for disposition.

II. Issues

On appeal,² Employer argues the Board erred in: determining Employer discharged Claimant from her employment where the evidence showed Claimant voluntarily quit her position; considering this case under Section 402(e) of the Law when the initial determinations focused on Section 402(b) of the Law; and, determining Claimant did not receive an overpayment of benefits.

III. Discussion

In unemployment compensation proceedings, the Board is the ultimate fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Id. The Board's findings are conclusive on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Id. Thus, it is irrelevant whether the record contains evidence that would support contrary findings. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994). Moreover, we view the record in the light most favorable to the party that prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence. Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084 (Pa. Cmwlth. 1997).

A. Separation from Employment

Employer first argues the record does not support the Board's findings that it discharged Claimant. As a result, Employer contends the Board erred in determining it terminated Claimant; rather, Employer contends, the record supports a determination that Claimant voluntarily quit her employment without good cause.

A claimant is ineligible for compensation when her "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ...." Section 402(b) of the Law. "Whether an employee's conduct constitutes voluntary termination is a question of law to be determined by examining the findings of fact made by the Board." Fishel v. Unemployment Comp. Bd. of Review, 674 A.2d 770, 772 (Pa. Cmwlth. 1996) (citations omitted). For an employer's statement to be interpreted as a discharge, the "language must possess the immediacy and finality of firing." Id. Statements such as "pick up your pay," "turn in your key," "pull your time card," "turn in your uniform," and "there's the door" possess the finality of a firing. Rizzitano v. Unemployment Comp. Bd. of Review, 377 A.2d 1060 (Pa. Cmwlth. 1977). In contrast, where an employer's statement presents a claimant with the option of maintaining the employment relationship, this Court does not find a termination. See Keast v. Unemployment Comp. Bd. of Review, 503 A.2d 507 (Pa. Cmwlth. 1986) (holding employer's statement, "how would you like to leave," lacked the immediacy and finality of a firing); Lawlor v. Unemployment Comp. Bd. of Review, 391 A.2d 8 (Pa. Cmwlth. 1978) (holding employer's advice to claimant that he either change his attitude toward his supervisor or make a decision as to what he was going to do, lacked the immediacy and finality of a firing).

In support of its assertion that the Board erred in determining it discharged Claimant, Employer challenges the following Board findings:

3. [C]laimant maintained weekly contact with her immediate supervisor, advising [E]mployer of her physical condition.

* * * *

6. During the third week of September, [C]laimant called and spoke to [E]mployer. [C]laimant informed [Employer] that she could return to work, albeit with limitations.

7. [E]mployer told [C]laimant that her job had been filled and that she needed to come get her belongings.

Bd. Op., 9/15/08, Findings of Fact (F.F.) Nos. 3, 6-7. Employer asserts, because these findings lack sufficient record support, the Board's ultimate determination that Employer discharged Claimant is erroneous. We disagree.

1. Finding of Fact No. 3.

As to Finding of Fact No. 3, Employer asserts, although Claimant testified she periodically spoke with her supervisor regarding her medical condition, she did not testify she provided weekly updates. Employer argues that, although Claimant's supervisor indicated she initially spoke with Claimant weekly, after Claimant did not return to work as promised on June 25, 2007, they did not discuss Claimant's return to work. Employer maintains no reasonable inference can be made that Claimant made any concerted or regular effort to inform Employer of the date of her return.

Contrary to Employer's assertions, Finding of Fact No. 3 is directly supported by the testimony of Lee Edlund-Schiefer, Employer's office manager and Claimant's immediate supervisor, who testified that after Claimant's accident, she talked with Claimant "weekly" or "at least once a week." Reproduced Record (R.R.) at 118a. As such, we reject Employer's argument that the Board's Finding of Fact No. 3 lacks record support.

2. Finding of Fact No. 6.

Similarly, we reject Employer's challenge to Finding of Fact No. 6 as this finding is supported by Claimant's testimony. Specifically, the following exchange occurred between Claimant and the referee:

[Referee]: Okay. What could you — in September at what point did you feel you could go back to work? About when? There's a calendar.

[Claimant]: Well, I guess September. I would say maybe the second or third week.

[Referee]: Okay.

[Claimant]: Maybe the third week.

* * * *

[Claimant]: Okay. I can't remember. I can't remember the date.

[Referee]: Okay. If you can't remember the dates do you remember having a discussion?

[Claimant]: Yeah, I remember discussing.

[Referee]: Okay. Who were you ...

[Claimant]: Periodically I would call [Schiefer] and tell her — give her the update. And then when I was ready to come back to work I was told that the position had been filled. To come and get my things.

[Referee]: Who were you talking to?

[Claimant]: I don't remember who it was at that point. It might have been Lee. It could have been —...