IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LaKesia Phillips , : Petitioner :

: v. : No. 761 C

. D

. 20 19

: Submitted : November 1, 2019 Unemployment Compensation Board : of Review , : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: January 6, 2020

LaK esia Phillips (Claimant), proceeding pro se, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) dated May 31, 2019, which affirmed the decision of a Referee denying Claimant benefits pursuant to Section 402(b) of the UC L aw (Law). 1 On appeal, Claimant essentially

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(b) (providing that a claimant is ineligible to receive UC benefits for “unemployment [that] is due to voluntarily leaving work without cause of a necessitous and compelling nature”). In her brief to this Court, Claimant asserts “43 P.S § 4 02 was repealed on May 22, 1933” and, therefore, “[i]t was not clear from the Board[’]s [Order] which title [it] w[as] referring to [because] Section 402 of” the Law “does not exist.” (Claimant’s Brief at 10

- 11, 15.) However, in concluding that Section 4 02 of the Law does not exist, Claimant confuses the Purdon’s unofficial numbering with that of the Law. While we acknowledge the difference in numbering can be confusing, it is clear that the Board concluded Claimant was not eligible under Section 402(b) of the Law, not 43 P.S. § 402 as Claimant suggested.2

argues that the Board erred in concluding that she did not demonstrate a necessitous and compelling reason for quitting her employment . Upon review, we affirm. Claimant worked as a part

- time certified nu rsing assistant (CAN) /home health aide for Interim Healthcare Transitional Care (Employer) from September 14, 2016, until December 10, 2018. On February 7, 2019, Claimant applied for UC benefits. (Certified Record (C.R.) Item 1.) UC authorities requeste d Employer and Claimant
submit questionnaires. In its questionnaire, Employer indicated that Claimant voluntarily left employment by abandoning her job. (C.R. Item 2.) Claimant provided conflicting response s in her questionnaire. In response to questio n three, Claimant indicated that she quit her job with Employer. (C.R. Item 3.) However, in response to questions four and seven, Claimant indicated that she did not quit her job. ( Id. ). Thereafter, t he Harrisburg Overflow UC Center (Service Center) issued a Notice of Determination concluding that Claimant wa s ineligible to receive UC benefits under Section 402(b) of the Law because Claimant did not demonstrate a necessitous and compelling reason for quitting her job with Employer. (Notice of
Determi nation, C.R. Item 6.) Claimant timely appealed the Service Center’s
de termination by the filing of a petition for a p peal. (C.R. Item 7.) In her petition
for a ppeal , Claimant indicated the reason for filing the appeal was that she did not quit or abandon her job. ( Id. ) Thereafter, a Referee conducted a hearing on April 15, 2019, at which Claimant and a representative of Employer testified. Claimant testified, in relevant part, as follows. On December 10, 2018,
Claimant told her clien t that she “needed a couple months off
, ” and in response
, her client stated “she wanted her grandson to

. . . do the work” that Claimant was currently performing. (Hearing Transcript at 4, C.R. Item 10.) The following day,3

Claimant called her Employer an d left a voicemail stating that she “needed two months off” and that her client “wanted her grandson to do the work” that Claimant was performing. ( Id. at 5.) Claimant testified that she needed the two months off because she “had [a] situation that [she] had to take care of

. ” ( I d. ) Claimant subsequently testified that she was “incarcerated on December 12 th

. ” ( I d. at 10 )

. Claimant further testified that on February 5, 2019, she contacted her Employer to set up a meeting about returning to work. A meet ing was set up , but Claimant did not attend the meeting because she could not get transportation to it. ( Id. at 6.) Claimant did not call Employer to say that she could not make the meeting nor did
she follow

- up with E mployer thereafter. ( Id. ) The quality assurance manager (Manager) for Employer testified , in relevant part, as follows. Sometime in December 2018, Employer received a call from Claimant’s client, who stated that Claimant did not show for work. ( Id. at 7, 9.) This prompted Employ er to attempt to contact Claimant and her emergency contact; however, Employer could not reach either. ( Id. at 7.) In February 2019, Claimant reached out to say that she was ready to return to work. ( Id. ) The Manager inf ormed
Claimant that she needed t o come into the office because Employer had not heard
from her in two months and Employer “needed to know what was going on with” Claimant before “sen[ding] her back in the field.” ( Id. at 8.) The Manager set up a meeting with Claimant for February 14, 2 019, but had not heard from Claimant since setting up the meeting

. ( Id. ) The Manager concluded by stating that had Claimant attended the meeting on February 14 there w ould have been continuing work
available for her. ( Id. )4

After the hearing, the Refe ree issued a decision, concluding that Claimant was ineligible for compensation under Section 402(b) of the Law. (Referee’s Decision.) The Referee made the following relevant findings of fact:

1. The [C]laimant was last employed with [Employer] as a part t ime CNA/home health aide, working 50 hours per week, at a pay rate of $11.50 per hour. The [C]laimant was employed from September 14, 2016 and her last day of work was December 10, 2018.

2. After the last day of work, the [C]laimant stopped working with t he client because she needed two months off to handle a situation.

3. On February 5, 2019, the [C]laimant texted and spoke with the [E]mployer; the [E]mployer set up a meeting for the [C]laimant to meet with her to discuss future employment.

4. The [C] laimant never attended the meeting a[nd] did not contact the [E] mployer.

5. The [C]laimant voluntarily left her job.

( Id

. , Findings of Fact ¶¶ 1

- 5.) The Referee , while crediting Claimant’s testimony
, concluded that Claimant’s testimony did not demonstrate “a necessitous and compelling reason for leaving employment at the time the Claimant did or that the Claimant acted with ordinary common sense and made a good faith effort to preserve the employment.” ( Id . at 2.) Claimant subsequently appea led to the Board, again arguing that she did not voluntarily quit her job with Employer and that Employer never offered Claimant her job back. T he Board modified the Referee’s first finding of fact to read “ [t]he [C]laimant was employed as a CNA /home heal th aide from September 14, 2016, to December 10, 2018, at a final rate of $11.50 per hour.” (Board’s Order.) Other than this modification, the Board adopted and incorporated the Referee’s findings of fact5

and conclusions of law and affirmed the Referee’s Decision. The Board reasoned
as follows : On appeal, the [C]laimant asserts that she did not abandon her job and that the [E]mployer never offered her the job back after she took two months off from work. The [C]laimant, however, acknowledged that she did not attend a subsequent meeting to discuss her future employment. Based on this evidence, and the fact [ that ] the [C]laimant testified that she did not contact the [E]mployer after the meeting date, the Board determines that the Referee was correct in determining that the [C]laimant quit her job.

( Id

. ) Claimant later sought reconsideration of the Board’s Order, which the Board denied. (C.R. Item 16.) On appeal to this Court , 2 Claimant essentially argues that the Board erred by concluding that s he did not have a necessitous and compelling reason for voluntarily quitting 3 her job with Employer. In her brief to this Court, Claimant alleges:
On December 10, 2018, while at work . . . I received a phone call from my mother about the sheriffs surroun ding my apartment showing photos of me to neighbors, with an active warrant. As one could imagine, the burden was great and I became fearful. At the end of my shift I spoke with [my] client and requested 2 months off. She approved my request, [I] call ed Employer, to make same request, receive[d] answering machine, left message for my request

2 “Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violat ed.” Johns v. Unemployment Comp. Bd. of Review , 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).

3 On one page of her brief, Claimant appears to state that the Board erred in finding that she did not voluntarily quit her job with E mployer. (Claimant’s Br. at 6.) However, as Claimant apparently recognizes elsewhere in her brief, the Board did find that Claimant voluntarily quit her job. The Board , other than modifying the Referee’s first finding of fa ct, adopted the findings of th e Referee who found that Claimant “voluntarily left her job.” (Referee’s Decision, Findings of Fact ¶ 5.)6

[sic] . I got no response within the time of surr e nd er ing. . . . [O]ut of necessity, I voluntarily quit my job to surrender to Police Officials.
(Claimant’s Brief ( Br. ) at 9.) In her petition for review Claimant avers the reason
she had to turn herself into law enforcement was because she “had to do a 54[

- ] day county jail sentence .” (Petition for Review at 3 (emphasis added) .) Claimant asserts that the foregoing circumstances demonstrate she had a necessitous and compelling reason for leaving her employment with Employer because she had to turn herself
into law enforcement

. In response, the Board contends:

B eginning with Claimant’s responses in her [] [q]uestionnaire through her appeal to the Board, Claimant has consistently argued she did not quit. In her appeal to this Court, Claimant admits she quit and argues for the first time that she had a necessitous and compelling reason fo r doing so because she needed to surrender herself to the police

. (Board’s Br. at 6 (internal citation omitted) .) As such, the Board argues, Claimant has waived the issue of whether she quit her job with Employer by admitting in her
brief that she did in fact quit. The Board further argues that Claimant has also waived the issue of whether she had a necessitous and compelling reason for quitting her job by not raising the issue below. The Board asserts that even if Claimant had raised the issue below, she has not demonstrated she had a necessitous and compelling reason for quitting her job because “incarceration is not a necessitous and compelling reason to quit employment. ” ( Id. at 8.) Additionally, the Board asserts that Claimant
did not take reaso nable steps to maintain her employment with Employer because she failed to show up at a meeting “with Employer to restart her employment.” ( Id. ) To this Court, Claimant argues the Board erred by concluding that she did not
demonstrate a necessitous and compelling reason for quitting her employment.7

However, a t all intra departmental stages, Claimant maintained that she did not quit
her job with Employer. While Claimant indicated in question three of her questionnaire she quit her job, she indicated in her responses to questions four and seven that she did not quit her job. (C.R. Item 3.) Specifically, her responses to questions four and seven state , “ I did not quit .” ( Id. (emphasis added). ) Further, before both the Referee and the Board, Claimant as serted that she did not quit her job with Employer. (C.R. Items 7, 12.) It was not until Claimant appealed to this
Court that she admitted to t he fact that she quit her job. (Claimant’s Br. at 9.) Claimant’s theory of the case at all intra department al stages was contrary to what she now argues before this Court. Claimant ha d to raise before the Referee and/or
the Board the issue of whether she had a necessitous and compelling reason to quit , at least as an alternative argument, where they could make f indings of fact

. Schaal v. Unemployment Comp. Bd. of Review , 870 A.2d 952, 954

- 55 (Pa. Cmwlth. 2005) (“A claimant waives review of an issue by failing to raise it before the referee when [the claimant] had an opportunity to do so.”)

. B ecause Claimant did not raise this issue below, the issue is not preserved for our review. Even if Claimant had preserved this issue, she has not met her burden of demonstrating that she has a necessitous and compelling reason for quitting her job with Employer.
Whether Claimant had a necessitous and compelling reason for voluntarily quit ting her job with Employer “is a question of law fully reviewable by this Court.” Brunswick Hotel & Conference Ctr ., LLC v. Unemployment Comp. Bd. of Review , 906 A.2d 657, 661 (Pa. Cmwlt h. 2006). Claimant bears the burden of proving that she had a necessitous and compelling reason for quitting her employment. RIO Supply, Inc. of PA v. Unemployment Comp. Bd. of Review , 124 A.3d 401, 404 (Pa. Cmwlth. 2015). To demonstrate a necessitous a nd compelling reason for leaving8

employment, Claimant must demonstrate the following: “(1) circumstances existed that produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the sam e manner; (3) [she]
acted with ordina ry common sense; and, (4) [she] made a reasonable effort to preserve her employment.” Havrilchak v. Unemployment Comp. Bd. of Review , 133 A.3d 800, 804 (Pa. Cmwlth. 2015).
To this Court , Claimant argues that “ out of necessity” she quit her job with Employer in December 2018 “ to surrender to P olice O fficials, ” (Claimant’s Br. at 9) , in order to serve “a 54[

- ] day county jail sentence ,” (Petition for Review at 3 (emphasis added) ). However, w e have previously held that incarceration due to a criminal conviction does not rise to the level of a necessitous and compelling quit
because “an employee who engages in activities punishable by imprisonment must realize that her ability to work may be jeopardized.” Violi v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 982 C.D. 2011, filed December 30 , 2011) , slip op.

at 5

- 6. The public policy purpose of the Law is to provide “compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. ” Section 3 of the Law, 43 P.S. § 752 (emphasis added)

. C laimant s that are unemployed due to post

- conviction criminal incarceration are not “unemployed through no fault of their own,” 43 P.S. § 752 ; rather those claimants

are unemployed directly from their own conduct in engaging in criminal activity

. Therefore , the fact that Claimant h ad to abandon her job due to a sentence of
incarceration does not rise to the level of a necessitous and compelling voluntary quit because her inability to work was due to her own fault in engaging in activity
that led to her incarceration

.9

To the extent that Claimant argues she made a reasonable effort to preserve her job with Employer after her release, we disagree because Claimant did not a ttend a scheduled meeting with Employer

. Manager testified at the hearing before the Referee that there was continuing work available for Claimant. ( Hearing Transcript at 8, C.R. Item 10.) However, Claimant neither attended the meeting nor informed Empl oyer that she could not attend the meeting. ( Id. at 6, 8). While Claimant alleges that she could not get transportation to the meeting, ( i d. at 6), she should have followed up with Employer to attempt to reschedule the meeting or make other arrangements. Additionally, Claimant did not follow up with Employer after missing the meeting. ( Id

. ) Therefore , even if Claimant had not waived the issue of whether she had a necessitous and compelling reason for quitting her job with Employer , we could not conclud e that Claimant met her burden of demonstrating a necessitous and compelling reason for quitting or that she made reasonable efforts to preserve her employment

. Accordingly, we affirm the Order of the Board.

_____________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

LaKesia Phillips, : Petitioner :

: v. : No. 761 C

. D

. 20 19

: Unemployment Compensation Board : of Review, : Respondent :

O R D E R

NOW , January 6, 2020 , the Order of the Unemployment Compensation Board of Review dated May 31, 2019, is AFFIRMED

.

_____________________________________ RENÉE COHN JUBELIRER, Judge