IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward G. Mitchell, Jr., : Petitioner : : v. : No C.D : Submitted: April 12, 2013 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI 1 FILED: July 31, 2013 Edward G. Mitchell, Jr. (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee s decision denying him unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) 2 because he voluntarily quit due to dissatisfaction with his employer s policies and not for a 1 This opinion was reassigned to the authoring judge on July 10, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(b). That section provides, in relevant part, that [a]n employe 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).

2 necessitous and compelling reason. For the reasons that follow, we reverse the Board. Claimant was employed as a diesel technician for Woltz & Wind Ford (Employer) from October 1, 2008, until his last day worked of February 22, On March 6, 2012, Claimant signed a resignation form and turned it into his supervisor. Later that day, Claimant attempted to rescind his resignation but was unsuccessful. Claimant then applied for unemployment compensation benefits. The UC Service Center determined that Claimant was ineligible for benefits under Section 402(e) of the Law 3 because he was discharged for willful misconduct. Claimant appealed, and a hearing was held before a Referee. At the hearing, James Morgan (Morgan), Employer s parts and service director, testified that he supervised Claimant from May 23, 2011, until Claimant left his employment on March 6, He stated that from February 27, 2012, through March 5, 2012, Claimant took six days of unauthorized vacation time, 4 and when Claimant returned to work on March 6, 2012, he gave Morgan two 3 43 P.S. 802(e). That section provides, in relevant part: An employe shall be ineligible for compensation for any week (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is employment as defined in this act. 4 Morgan explained that Claimant requested to take off work on February 23-24, 27-29, March 1-2 and March 5, and that he only approved Claimant s request for February 23-24, but Claimant nonetheless took off all eight days. 2

3 weeks notice of his resignation, which Morgan accepted. Morgan testified that Claimant then completed and signed one of Employer s resignation forms 5 and gave it to him, but Claimant returned later that day and took the form off of Morgan s desk while he was out of his office. Morgan stated that when he returned to the office, Claimant told him that he took back the form and wished to revoke his resignation. 6 However, Morgan did not accept Claimant s revocation. Claimant testified that he took eight vacation days to care for his sick mother, despite being told that he could only take two days off. He explained that when he returned to work, he was assigned to perform warranty repair, which typically resulted in lower pay than a regular repair assignment. Claimant testified that this was part of a pattern that had developed with respect to his repair assignments and prompted him to submit his two weeks notice to Morgan. According to Claimant, when he submitted his two weeks notice, Morgan told him that he did not need to work for two more weeks and could end his employment that day. Shortly thereafter, Claimant testified, Morgan provided him with Employer s resignation form, which he completed and returned to Morgan. Claimant explained that after speaking with his wife on the phone, he decided that he should not resign, retrieved the resignation form from Morgan s desk and 5 At the hearing, Employer submitted a copy of its standard resignation form, which reads, As of this date, I tender my resignation from the employ of Woltz & Wind Ford, effective immediately. (July 9, 2012 Hearing Transcript at 11). 6 Dean Colussy (Colussy), Employer s parts manager, testified that on March 6, 2012, he participated in a meeting with Claimant and Morgan about Claimant s resignation. Colussy confirmed that at the meeting, Claimant admitted to removing his signed resignation form from Morgan s desk. 3

4 destroyed it. Claimant confirmed that Morgan refused to accept his revocation of his resignation. The Referee denied benefits under Section 402(b) of the Law, concluding that Claimant voluntarily resigned without a necessitous and compelling reason and could not rescind his resignation, which was effective immediately. The Referee noted that Claimant would also be ineligible under Section 402(e) of the Law because he committed willful misconduct when he took time off without permission. The Board, finding Claimant ineligible for benefits under Section 402(b) of the Law, affirmed. This appeal by Claimant followed. 7 On appeal, Claimant argues that the Board erred in finding that he voluntarily terminated his employment. Claimant contends that his termination was involuntary because he properly revoked his resignation before Employer had taken steps to replace him. In determining whether a claimant s separation from employment is voluntary or involuntary, we must analyze the totality of the facts surrounding the cessation of employment. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). It is the claimant s burden to prove the separation was involuntary. Id. If the claimant meets this burden, then the burden shifts to the employer to establish that the discharge was 7 Our review of the Board s decision is limited to determining whether an error of law was committed, constitutional rights were violated, or necessary findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth. 2003). 4

5 due to willful misconduct. Id. If the claimant fails to meet this burden, then he or she must establish necessitous and compelling reasons for quitting. Id. If an employee leaves or quits work without being discharged by his employer, his actions are considered voluntary under the Law. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). In PECO Energy v. Unemployment Compensation Board of Review, 682 A.2d 40 (Pa. Cmwlth. 1996), we summarized the law with respect to the revocation of a resignation as follows: [I]t is the law in Pennsylvania that a resignation, later revoked, remains a voluntary termination of employment if the employer has taken steps to replace the employee before the revocation. Hale v. Unemployment Compensation Board of Review, 57 Pa. Cmwlth. 245, 425 A.2d 1216, 1217 (1981). On the other hand, if an employee revokes a resignation before the employer has taken steps to replace him, the termination thereafter is involuntary. Tretter v. Unemployment Compensation Board of Review, 62 Pa. Cmwlth. 70, 434 A.2d 919 (1981); Stroh Tillman v. Unemployment Compensation Board of Review, 167 Pa. Cmwlth. 154, 647 A.2d 660 (1994). Similarly, where an employee attempts to postpone, rather than to rescind, a resignation, before the employer has made other arrangements, the employee is entitled to benefits for the rejected extension period. Zimmerman v. Unemployment Compensation Board of Review, 101 Pa. Cmwlth. 274, 516 A.2d 102 (1986), appeal denied, 515 Pa. 591, 527 A.2d 549 (1987). In these circumstances, the claimant has the burden of proving that arrangements had not been made for his replacement at the time he attempted to revoke or postpone his resignation. Goughnour v. Unemployment Compensation Board of Review, 54 Pa. Cmwlth. 83, 420 A.2d 30, 32 (1980). 5

6 Id. at 45. Because Claimant almost instantly withdrew his resignation AND Employer had taken no steps to replace him, under the law of Pennsylvania, his termination was involuntary making him eligible for unemployment compensation benefits. Despite the well-settled law of Pennsylvania that an employee could revoke his resignation until an employer had taken steps to replace the employee, in Spadaro v. Unemployment Compensation Review Board, 850 A.2d 855 (Pa. Cmwlth 2004), we stated that [a]n employee who revokes his resignation before the effective date of his resignation and before the employer took steps to replace him is entitled to benefits. Id. at 859 (emphasis added). In that case, the claimant s job performance declined after he was assigned a new supervisor. During a meeting with his new supervisor to discuss his job performance, the claimant became upset and told the supervisor he could not take it anymore and that he quit. After leaving the meeting, the claimant told the employer s president that he could not take his supervisor anymore. The employer considered the claimant s actions to be a resignation and asked the claimant to return his van and other company property, which he did. The claimant subsequently called employer s owner but the owner would not accept claimant s calls. We affirmed the Board s denial of benefits, without citing to any of the above cases, holding that the claimant had to revoke before the resignation became effective, regardless of whether employer had taken any steps to replace him. Even if we applied Spadaro here, Claimant did not resign effective immediately but gave two weeks notice. It was Employer who forced the 6

7 resignation to be effective immediately by refusing to let Claimant work the two weeks that he offered to work. Employer cannot defeat Claimant s revocation of his resignation or defeat the withdrawal of the resignation within minutes by stating that Claimant did not do so within an interim time period that Employer refused to allow him to work. It is undisputed here that Employer took no actions to replace Claimant between the time he submitted his resignation and the time he attempted to revoke it. Given the totality of the facts surrounding the cessation of Claimant s employment, we hold that Claimant is not ineligible for unemployment compensation benefits under Section 402(b) of the Law. Accordingly, the order of the Board is reversed. DAN PELLEGRINI, President Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward G. Mitchell, Jr., : Petitioner : : v. : No C.D : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 31 st day of July, 2013, the order of the Unemployment Compensation Board of Review, dated October 19, 2012, at No. B , is reversed. DAN PELLEGRINI, President Judge

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward G. Mitchell, Jr., : Petitioner : : v. : No C.D : Submitted: April 12, 2013 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE LEAVITT FILED: July 31, 2013 Respectfully, I dissent. Specifically, I believe that the Unemployment Compensation Board of Review did not abuse its discretion in denying Claimant benefits because he had voluntarily resigned, effective immediately. The timing of his voluntary resignation made it impossible to revoke. An employee may revoke his resignation and, thus, be eligible for unemployment compensation. However, the employee must revoke his resignation before the effective date of his resignation and before the employer took steps to replace him in order to be entitled to benefits. Spadaro v. Unemployment Compensation Board of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004) (emphasis added). This rule is controlling in the present case.

10 Claimant went to his supervisor, Morgan, and informed him that he would like to put in his two week notice. According to Claimant, Morgan advised him that he did not need to work for two more weeks and could just end his employment that day. Morgan then provided Claimant with Employer s resignation form, which Claimant completed and returned to Morgan. Certified Record Item No. 11 (C.R. ); Notes of Testimony at 19. Claimant then left work. Employer s standard resignation form reads: As of this date, I tender my resignation from the employ of Woltz & Wind Ford, effective immediately. C.R. 11; Exhibit E-3. The Board found, as fact, that Claimant agreed to make [his] resignation effective immediately, and therefore, rescission was impossible. Board Decision at 2 (emphasis added). The majority mischaracterizes the record. The majority states that Claimant was forced into making his resignation effective immediately. He resigned and, in doing so, offered to work for two more weeks; he was told that he did not have to do so. Claimant then agreed to sign Employer s standard resignation form. There was no testimony that Claimant was forced to sign the resignation form; that Employer would not have allowed him to work for two more weeks; or that Claimant could not have rejected Employer s offer to make his resignation effective immediately. Further, the Board made no such findings of fact. The Board found his resignation, including its timing, to be voluntary, and we are bound by its findings of fact. Claimant s attempt to revoke his resignation occurred after his resignation became effective. Therefore, it is of no moment whether Employer took steps to replace him before he attempted to rescind his resignation. Thus, the MHL-2

11 Board did not err in holding that Claimant s separation from employment was voluntary and that he is not entitled to benefits. I would affirm the Board s denial of benefits. MARY HANNAH LEAVITT, Judge MHL-3