W.M. Shoenfelt v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Milton Shoenfelt, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1143 C.D. 2020
Respondent : Submitted: April 23, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 25, 2021
Wayne Milton Shoenfelt (Claimant) petitions this Court, pro se, for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR)
October 6, 2020 order affirming the Referee’s decision denying Claimant UC
benefits under Section 402(b) of the UC Law (Law).1 Essentially, there are two
issues before this Court: (1) whether Claimant voluntarily left his employment
without a necessitous and compelling reason; and (2) whether Claimant had a full
and fair hearing. After review, this Court affirms.
FBF Transport LLC (Employer) employed Claimant as a full-time
truck driver from March 11, 2019 until February 27, 2020. Employer’s trucks have
a global positioning system (GPS) installed, which alerts Employer of any safety
concerns. Employer had multiple conversations with Claimant regarding safety
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
alerts it received due to Claimant’s speeding. Thereafter, Employer began routing
all GPS safety alerts directly to Claimant’s personal cell phone. Claimant became
upset about the safety alerts on his phone, and requested that Employer discontinue
them. On February 27, 2020, after being informed that Employer would not stop the
alerts, Claimant quit, effective immediately.
Claimant applied for UC benefits on April 12, 2020.2 On June 22, 2020,
the Altoona UC Service Center determined that Claimant was ineligible for UC
benefits under Section 402(e) of the Law.3 Claimant appealed, and a Referee hearing
was held on August 11, 2020. On August 13, 2020, the Referee affirmed the UC
Service Center’s determination that Claimant was ineligible for UC benefits, but
under Section 402(b) of the Law. Claimant appealed to the UCBR. On October 6,
2020, the UCBR adopted the Referee’s findings and conclusions, and affirmed the
Referee’s decision. Claimant appealed to this Court.4,5
Initially,
[w]hether an employee has cause of a necessitous and
compelling nature to quit employment is a legal
conclusion subject to appellate review. In order to show
necessitous and compelling cause, the claimant must
establish that: 1) circumstances existed which produced
real and substantial pressure to terminate employment; 2)
like circumstances would compel a reasonable person to
act in the same manner; 3) []he acted with ordinary
common sense; and 4) []he made a reasonable effort to
preserve [his] employment.
2
Claimant worked for an intervening employer from March 23 to April 10, 2020, when he
was laid off due to the Coronavirus pandemic.
3
43 P.S. § 802(e) (relating to discharge due to willful misconduct).
4
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
5
Employer intervened in the appeal.
2
Stugart v. Unemployment Comp. Bd. of Rev., 85 A.3d 606, 614 (Pa. Cmwlth. 2014)
(emphasis omitted) (quoting Comitalo v. Unemployment Comp. Bd. of Rev., 737
A.2d 342, 344 (Pa. Cmwlth. 1999) (citation and quotation marks omitted; emphasis
added)).
This Court has explained:
[I]n UC cases, the [UCBR’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.’” W[.] & S[.]
Life Ins[.] Co. v. Unemployment Comp[.] [Bd.] of Rev[.],
913 A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie
v. Unemployment Comp[.] [Bd.] of Rev[.], 738 A.2d 518,
521 (Pa. Cmwlth. 1999)). ‘The [UCBR’s] findings are
conclusive on appeal so long as the record, when viewed
in its entirety, contains substantial evidence to support the
findings.’ W[.] & S[.] Life Ins[.] 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 [UCBR] 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
[UCBR’s] findings. U[.]S[.] Banknote Co. v.
Unemployment Comp[.] [Bd.] of Rev[.], . . . 575 A.2d 673,
674 ([Pa. Cmwlth.] 1990). Moreover, ‘even if there is
contrary evidence of record, the [UCBR’s] findings of fact
are binding upon the Court where supported by substantial
evidence.’ Borough of Coaldale v. Unemployment
Comp[.] [Bd.] of Rev[.], 745 A.2d 728, 731 (Pa. Cmwlth.
2000).
Gosner v. Unemployment Comp. Bd. of Rev., 234 A.3d 934, 937 (Pa. Cmwlth. 2020)
(emphasis omitted) (quoting Cambria Cnty. Transit Auth. (Cam Tran) v.
Unemployment Comp. Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019)).
Here, Claimant quit his job because he was upset about speeding alerts
being sent to his personal cell phone. Specifically, Claimant testified:
R[eferee:] So, on your last day of work, why did you drive
the truck to your house and park it?
3
C[laimant:] Because I was talking to George.[6] George
called me on the phone because, you know, another time
[Employer’s owner Andrew Fabin (]Andy[)] says that,
you know, he couldn’t talk. But, I was talking to George
and I told George to have Andy take that off my phone
and he said, I don’t see that happening. Then, I told
George, well, I’m going home. I quit. And, they were
always making me, you know, they were changing the
logbook, so I could get more hours. And, there’s just a
bunch of reasons why I quit.
Certified Record (C.R.) at 166 (emphasis added).
Claimant further explained:
R[eferee:] . . . [W]ho is George?
C[laimant:] George is, to me, just somebody that works
over in payments. I don’t know. One day he’s a truck
driver. The next day he’s a mechanic. Then [the] next day
he’s working on the foreman equipment over there. I’m
not really sure what George is.
R[eferee:] So, you told him that you quit. At any point
did you contact the -- a member of management and tell
them [sic] that you quit?
C[laimant:] Well, I guess George is a part of management.
R[eferee:] What was the reason that you told George
you were quitting?
C[laimant:] Because of the cell phone. I wanted that off
my personal cell phone because it was unsafe. It would
last -- if we was [sic] talking on the phone like this, it
would just [sic] right across the phone. It would block you
out and I would have to listen to it for the next three to four
minutes. And, it was all the time.
Id. at 166-167 (emphasis added).
6
There is no last name or title for George in the record.
4
Claimant expounded:
C[laimant:] . . . . And, I don’t even know if it went off
that day. I just wanted it off my phone. And, he would
not take it off my phone.
R[eferee:] So, I’m now confused. If it didn’t go off that
[day], then why did you quit?
C[laimant:] Because pretty much what -- why I quit was
pretty much the way George said it. When I said to
George about Andy taking that off, George said, on the
phone he said, I don’t see that happening. And, I said,
well, if it’s not going to happen, I’m going home to clean
the truck out. I’m done.
R[eferee:] Anything additional that you want to tell me?
C[laimant:] It was on there for -- I asked him almost every
day to take that off my phone.
R[eferee:] You asked who?
C[laimant:] Andy. Well, the only thing you could do was
text Andy. You would never get a response. It was -- I
would never get a response. He wouldn’t shut it off and
that was for a good month.
R[eferee:] Anything additional?
C[laimant:] No, not that I can think of right now.
Id. at 168 (emphasis added).
The UCBR determined that Claimant was disqualified from receiving
UC benefits under Section 402(b) of the Law, reasoning:
[C]laimant argues that it was illegal for [] [E]mployer to
send safety alerts to his cell[ ]phone, but he does not cite
any authority. [] [C]laimant argues that, contrary to
Finding of Fact 3,[7] [] [E]mployer did not have multiple
conversations with him about safety alerts for speeding.
This argument is not persuasive because [] [E]mployer’s
7
Finding of Fact 3 provided: “[E]mployer had multiple conversations with [] [C]laimant
regarding safety alerts for speeding.” C.R. at 175.
5
owner testified that he did. [] [C]laimant argues that []
[E]mployer’s witnesses were not credible. The [UCBR]
resolves the conflicts in the testimony, in relevant part, in
favor of [] [E]mployer and finds its testimony to be
credible.
[] [C]laimant argues that although the UC Service Center
determined that [] [E]mployer discharged him, the Referee
improperly determined that he quit. This argument is not
persuasive because the notice of hearing placed the parties
on notice that both Section 402(e) (discharge) and Section
402(b) (quit) [of the Law] would be considered. Also, the
Referee advised the parties that both [S]ections of the []
Law would be considered. Finally, [] [C]laimant has
consistently maintained that he quit.
C.R. at 219. Based upon a review of the record, this Court holds that substantial
evidence supports the UCBR’s findings and conclusions. Accordingly, because
Claimant quit his job without a necessitous and compelling reason, the UCBR
properly concluded Claimant was ineligible for benefits under Section 402(b) of the
Law.
Moreover,
[t]he purpose of UC is to protect against “the hazards of
unemployment” by providing “compensation for loss of
wages by employes during periods when they become
unemployed through no fault of their own.” [Section 4
of the Law,] 43 P.S. § 752 (emphasis added). Further,
Section 402(b) of the Law provides, in relevant part, that
a claimant shall be ineligible for benefits 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) (emphasis
added). In this case, the UCBR found in Employer’s
favor. The record evidence supports the UCBR’s findings.
6
Small v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 1109 C.D. 2012, filed
Jan. 9, 2013), slip op. at 3-4.8
Concerning whether Claimant had a full and fair hearing, the UCBR
opined: “[C]laimant argues that the Referee did not consider the evidence that he
submitted. He also argues that the Referee was not fair and impartial. The [UCBR]
conduct[ed] an independent review of the record and finds the Referee’s decision to
be proper.” C.R. at 219.
This Court has explained:
A [r]eferee will be found to have denied a fair hearing to
an unrepresented party where the [r]eferee failed to
“advise him as to his rights, aid him in examining and
cross-examining witnesses, and give him every assistance
compatible with the impartial discharge of [the tribunal’s]
official duties.” [Section 101.21(a) of the UCBR’s
Regulations,] 34 Pa. Code § 101.21(a). This includes
assisting pro se claimants in developing the facts
necessary for a decision.
Procito v. Unemployment Comp. Bd. of Rev., 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
Here, the record reveals that Claimant received a notice of the hearing
(Hearing Notice) and was advised of his rights. The Hearing Notice specified:
SPECIFIC ISSUES to be considered in this appeal - See
attached list of issues for additional information.
# 17 - Section 402(e) - Whether [C]laimant’s
unemployment was due to discharge or temporary
suspension from work for willful misconduct connected
with employment.
8
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
7
# 15 - Section 402(b) - Whether [C]laimant’s
unemployment was due to voluntarily leaving work
without cause of necessitous and compelling nature.
C.R. at 138. Further, the Referee advised Claimant of his rights when the hearing
commenced. In particular, the Referee instructed:
R[eferee:] Thank you, all. I’d like to remind everybody
of your rights. You have the right to present testimony and
evidence and call and question witnesses. You also have
the right to cross-examine any adverse witnesses. You
also have the right to be represented by an attorney or a
non-legal advisor. [Claimant], are you aware of your
rights?
C[laimant:] Yes.
Id. at 157. The Referee also described:
R[eferee:] All documents will be entered as marked. I’ll
just briefly explain today’s procedure. Although, there is
some controversy, the [UC] Service Center ruled this an
involuntary separation. So, I’m going to begin by asking
[] Employer a few background questions regarding []
Claimant’s employment and then, [] Employer will testify
one witness at a time.
After each witness testifies, [] Claimant will have the
opportunity to cross-examine or ask questions regarding
that testimony. Then, we’ll switch in the reverse. []
Claimant will testify one witness at a time. And then, []
Employer [will] have an opportunity to cross-examine or
ask questions regarding that testimony. I may ask
questions of either party, at any time, just to clarify the
record. After all testimony has been provided, today’s
hearing will be concluded. All parties will receive a
[w]ritten [d]ecision in approximately one to two weeks.
[Claimant], any questions?
C[laimant:] No.
....
R[eferee:] During the course of the hearing, if anybody
has any questions, please let me know.
8
Id. at 159. Moreover, Claimant was afforded the opportunity to be heard throughout
the proceeding. Claimant testified on his own behalf and the Referee questioned
him regarding his employment separation.
At the end of the witness questioning, the Referee was about to
conclude the hearing when Claimant interrupted and asked if the Referee had
received his exhibits. See id. at 170. The Referee confirmed that she had, and asked
Claimant what he wanted to say about it, since he was raising it for the first time at
that point. See id. at 171. After determining that the exhibit related to a complaint
Claimant filed with the Federal Motor Carrier Safety Administration (FMCSA)9
after Claimant’s separation from employment, see id. at 171, the Referee concluded
the hearing. See id. at 172. Based upon a review of the record, this Court holds that
Claimant received a full and fair hearing.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
9
The FMCSA is a United States (U.S.) Department of Transportation agency that regulates
the U.S. trucking industry.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Milton Shoenfelt, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1143 C.D. 2020
Respondent :
ORDER
AND NOW, this 25th day of May, 2021, the Unemployment
Compensation Board of Review’s October 6, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge