IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Lewis, :

Petitioner :

 :

v. : No. 1718 C.D. 2016

 : Submitted: February 17, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: April 3, 2017

Scott Lewis (Claimant) petitions for review of an Order of the 

Unemployment Compensation (UC) Board of Review (Board) concluding that 

Claimant is ineligible for UC benefits under Section 402(b)1of the UC Law (Law). 

On appeal, Claimant argues that he did not voluntarily quit his employment with 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 

§ 802(b). Section 402(b) provides, in relevant part: “An employe shall be ineligible for 

compensation for any week-- . . . (b) In which his unemployment is due to voluntarily leaving 

work without cause of a necessitous and compelling nature, irrespective of whether or not such 

work is in [‘]employment[’] as defined in this act . . . .” Id.
2

Shaw Industries, Inc. (Employer) and should not be found ineligible for benefits 

under either Section 402(b) or 402(e)2of the Law. We affirm. 

Claimant was employed as a maintenance supervisor for Employer from 

June 27, 2011 to June 16, 2016. (Board Decision, Findings of Fact (FOF) ¶ 1.) 

The terms of the separation are in dispute. Claimant applied for UC benefits on 

June 16, 2016, alleging that he was discharged by Employer. (Internet Initial 

Claim at 1, C.R. at Item 2.) Employer filed an answer, alleging that Claimant 

“walked out.” (Employer’s Notice of Application, C.R. at Item 3.) On June 30, 

2016, a UC Service Center found that “Claimant was discharged as the result of 

unsatisfactory work performance” and determined that “Claimant is eligible for 

benefits under Section 402(e) of the [Law].” (Notice of Determination, C.R. at 

Item 4.) Employer appealed, and the matter was assigned to a UC Referee for 

hearing and disposition. 

A hearing was held on August 5, 2016, at which Claimant and Steve 

Spoharski, Employer’s general manager (General Manager) testified. General 

Manager testified as follows.3 Claimant, General Manager, and Employer’s Plant 

Supervisor were called into the office of Employer’s owner, Jason Fry (Owner). 

Employer had received an influx of orders and was short-staffed due to recent 

layoffs. The group thought that Claimant was the right person to help take on a 

project assembling storage racks for the warehouse. Owner told Claimant that they 

wanted Claimant to start working some 10-hour days to help Employer complete 

 

2

43 P.S. § 802(e). Section 402(e) provides: “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.” Id.

3 General Manager’s testimony is found on pages 3-7 of the Hearing Transcript. (C.R. at 

Item 8.)
3

the project. Upon hearing this from Owner, Claimant dropped his head and did not 

speak. The Plant Supervisor added that the overtime was only short-term so that 

Employer could get through an especially busy time. Claimant became upset and 

replied that Employer could have had this task completed that day if more people 

were assigned to the project. Employer had no extra people available to help that 

day, though previous to the conversation in Owner’s office, General Manager had 

told Claimant that he was trying to get some extra people to help with the project 

on Saturday. Owner stated to Claimant that “there’s no reason to get . . . heated or 

having any kind of an attitude.” (Hr’g Tr. at 5, C.R. at Item 8.) Claimant 

responded by stating that he was in a bad mood when he arrived at work that 

morning, to which Owner replied that Claimant cannot let outside influences 

impact his work. Owner said something to the effect of “I don’t [care] about your 

mood. I have a business to run.” (Id. at 8.) Claimant stated that he was upset that 

he could not get into his work area that day due to equipment placed in front of his 

area. General Manager stated that the reason the storage racks needed to be 

assembled was so that such equipment could be properly removed and stored on 

the racks. Claimant never replied. Owner asked Claimant what he was upset 

about and asked whether Claimant was refusing to work. Claimant responded by 

walking out of the office. (Id.)

While Claimant was walking away, Owner asked Claimant “if that was it.” 

(Id. at 5.) Claimant did not respond and continued to walk away. Owner asked “is 

this your notice?” (Id.) Claimant remained silent. Owner then said “well, I’d take 

this as your notice.” (Id.) 

General Manager followed Claimant to his work area and asked why he was 

so upset. Claimant responded “I guess this is it.” (Id.) General Manager 
4

responded “I would say so.” (Id.) Claimant asked General Manager if he could 

get UC benefits, to which General Manager responded that he did not know and 

that Claimant could submit a claim. Claimant then asked if General Manager 

“considered what he did was insubordination.” (Id.) General Manager responded 

“you walked out on [Owner].” (Id.) General Manager then asked Claimant to turn 

over his keys. General Manager testified that Claimant was not disciplined;

Claimant “just kind of walked out and never really answered any of the questions.” 

(Id.) General Manager understood Claimant’s action as quitting his employment. 

Claimant testified4that the conversation in Owner’s office made him feel 

degraded. Owner’s statement that he did not care about Claimant’s mood, in 

particular, made Claimant feel that Employer did not care about him. Claimant 

testified that Owner told him when he was walking out of Owner’s office to 

“consider this your notice.” (Id. at 7.) Claimant further testified that after leaving 

Owner’s office, General Manager came to Claimant’s office to talk about the 

incident. General Manager was soon called out of the room. Upon his return, 

General Manager said “[t]hat’s it. I’m going to need your keys.” (Id. at 8.)

Claimant further testified that he was upset that he was not getting help with the 

racks despite the fact that Claimant was not the person who was in charge of the 

racks.5

The Referee issued a decision on August 16, 2016. The Referee found that 

Claimant left his work because “[Owner] did[ not] care about him, and [Claimant] 

thought he was degraded.” (Referee Decision, Findings of Fact ¶ 20.) The Referee 

 

4 Claimant’s testimony can be found at pages 7-11 of the Hearing Transcript. 

5

The Referee asked the parties for their consent to rule under Section 402(b) of the Law 

in addition to Section 402(e) if she found it necessary. (Hr’g Tr. at 9-10.) Claimant and General 

Manager consented. (Id.)
5

concluded that “[C]laimant has not provided any reasonable explanation as to why 

he did not stay and work on the project [E]mployer had assigned to him.” (Id. at 

3.) The Referee concluded that benefits must be denied under Section 402(b) of 

the Law because Claimant did not meet his burden of showing cause of a 

necessitous and compelling nature for leaving his employment. (Id.) 

Claimant appealed to the Board, which made the following relevant findings 

of fact:

2. On June 16, 2016, [G]eneral [M]anager, [Employer’s] plant 

supervisor, and [Owner] met with [C]laimant and asked [C]laimant to 

work additional hours (i.e. 10 hour days) to assemble racking in the 

warehouse.

3. The plant supervisor explained to [C]laimant that the additional 

hours were temporary, and [C]laimant replied “We could have this 

stuff done today if you’d have some help.”

4. [E]mployer advised [C]laimant that it was assembling a crew to 

come in Saturdays to help with the rack assembly.

5. [C]laimant then stated that he was in a bad mood and didn’t want 

to talk about it anymore.

6. [O]wner told [C]laimant “When you are at work, you need to 

focus on work.”

7. [O]wner asked [C]laimant what he was mad about and if 

[C]laimant was refusing the additional work.

8. [C]laimant did not respond but got up and walked out of the 

meeting, at which time [O]wner asked [C]laimant “Is this it?” 

9. [C]laimant did not respond and [O]wner asked [C]laimant “Is this 

your notice?”

10. [C]laimant still did not respond and [O]wner told [C]laimant 

“Well, I’d take this as your notice.”

11. [G]eneral [M]anager followed [C]laimant back to [C]laimant’s 

work area and asked [C]laimant what he was mad about.

12. Rather than discussing his dissatisfactions, [C]laimant told 

[G]eneral [M]anager “I guess this is it” and [G]eneral [M]anager 

replied “I would say so.”

13. [C]laimant quit his employment due to his dissatisfaction with the 

working conditions.
6

(FOF ¶¶ 2-13.) Based on these findings, the Board concluded that Claimant did 

not make a reasonable effort to preserve his employment prior to quitting and, 

therefore, Claimant did not meet his burden to show that he was not ineligible for 

benefits under Section 402(b) of the Law. (Board Decision at 3.) The Board did 

not consider Owner’s statement, “I’d take this as your notice” as a firing. (Id.) 

Of further relevance to the Board’s reasoning was that Claimant, when given an 

opportunity to discuss with General Manager his dissatisfaction with his working 

conditions, instead responded “I guess this is it.” (Id.) Claimant now petitions this 

Court for review.6

The determinative issue in this case is whether Claimant’s separation from 

his employment was voluntary. It is Claimant’s burden to establish that his 

separation was voluntary or involuntary. Watkins v. Unemployment Comp. Bd. of 

Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). While our review of this question 

is highly fact intensive, “[w]hether a claimant’s separation from employment is the 

result of a voluntary action or a discharge is a question of law subject to review by 

this Court and must be determined from a totality of the facts surrounding the 

cessation of employment.” Id. To that end, “[a] finding of voluntary termination 

is essentially precluded unless the claimant has a conscious intention to leave his 

employment.” Id. Conversely, “to be interpreted as a discharge, the employer’s 

language must possess the immediacy and finality of a firing.” Id. “A voluntary 

termination is not limited to a formal or even an express resignation; it can be 

 

6

This Court’s scope of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact 

were supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 

1006, 1009 n.2 (Pa. Cmwlth. 2014).
7

inferred from the employee’s conduct.” Wise v. Unemployment Comp. Bd. of 

Review, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). 

Based on the facts found by the Board, we agree with the Board that 

Claimant signaled his conscious intention to leave his employment and that 

Owner’s statement does not contain the immediacy and finality of a firing. (Board 

Decision at 2.) While Claimant never expressly used the words “I quit,”

Claimant’s decision to walk out of Owner’s office without accepting an assignment 

or responding to Owner’s questions regarding notice, combined with Claimant’s 

statement, “I guess this is it,” to General Manager when General Manager followed 

Claimant to his work station, signals Claimant’s intent to voluntarily terminate the 

employment relationship. 

Claimant contends that Owner’s statement “consider this your notice,”

accompanied by General Manager’s request for keys, shows that he was fired 

because the statements possess the immediacy and finality of a firing. We 

disagree. First, Claimant misstates Owner’s statements by adding a degree of 

finality that is not present in the Owner’s statements as found by the Board. The 

Board is the ultimate fact finder. Stugart v. Unemployment Comp. Bd. of Review, 

85 A.3d 606, 614 (Pa. Cmwlth. 2014). We review the testimony in the light most 

favorable to the party that prevailed below, in this case, Employer. Id. According 

to the Board’s findings, after Claimant did not respond to the assignment of a 

project, Owner asked Claimant on two occasions whether he was giving his notice; 

first asking “[i]s this it,” and then by asking “[i]s this your notice?” (FOF ¶ 9.) 

After receiving no response to either inquiry, “[O]wner told [C]laimant ‘[w]ell, I’d 

take this as your notice.’” (Id. ¶ 10.) Owner understood Claimant’s actions as a 

voluntary quit and Claimant did not object or otherwise respond to Owner’s final 
8

statement. General Manager followed Claimant back to Claimant’s work area to 

ask what was going on. Instead of discussing with General Manager his concerns 

and reasons for walking out of Owner’s office, Claimant stated “I guess this is it.” 

(Id. ¶ 12.) These findings, which are supported by substantial evidence, adequately 

reflect the evidence presented and demonstrates that Claimant signaled his 

conscious intent to leave his employment. 

Second, Employer’s request for Claimant to turn over his keys does not 

support Claimant’s argument that Employer terminated his employment. The 

Board made no findings regarding the transfer of Claimant’s keys, presumably 

because the Board understood that the exchange between Claimant and General 

Manager regarding the keys was not relevant because it occurred after Claimant 

signaled his intention to terminate his employment. General Manager testified that 

he asked for the keys because “[Claimant] had already stated previous to that that I 

guess this is it. So I assumed [by] the way [Claimant] said that, [that] [Claimant 

was] quitting.” (Hr’g Tr. at 7.) 

Accordingly, we hold that the Board did not err in concluding that Claimant 

voluntarily terminated his employment without compelling and necessitous reason,

and, therefore, is ineligible for benefits under Section 402(b) of the Law. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Lewis, :

Petitioner :

 :

v. : No. 1718 C.D. 2016

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

NOW, April 3, 2017, the Order of the Unemployment Compensation 

Board of Review, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge