IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald J. Wyar, :

:

Petitioner :

:

v. : No. 865 C.D. 2015

: Submitted: December 4, 2015

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: March 18, 2016

Donald J. Wyar (Claimant) petitions for review of an order of the 

Unemployment Compensation Board of Review (Board) finding him ineligible for 

unemployment compensation benefits under Section 402(b) of the Unemployment 

Compensation Law (Law)2because he voluntarily quit his job without a 

necessitous and compelling reason. We affirm.

 

1

This case was assigned to the opinion writer on or before December 31, 2015, when President 

Judge Pellegrini assumed the status of senior judge.

2 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, that a claimant “shall be ineligible for compensation for 

(Footnote continued on next page...)
2

Claimant was employed as a full-time police officer with Portage 

Borough (Employer or Borough) beginning December 2006, with his last day of 

work of July 29, 2014. (Record (R.) Item 16, Board Decision and Order, Finding 

of Fact (F.F.) ¶1.) Claimant filed his claim for unemployment compensation 

benefits on August 13, 2014; in response, Employer submitted to the Department 

of Labor and Industry a September 18, 2014 letter from Claimant to Employer, in 

which Claimant stated that he was resigning his position as a police officer with 

Employer effective August 29, 2014. (R. Item 1, Claim Record; R. Item 4, 

Employer Separation Information.) 

On October 17, 2014, the Unemployment Compensation Service 

Center (Service Center) issued a notice of determination finding Claimant 

ineligible for benefits beginning with the week ending September 20, 2014 

pursuant to Section 402(b) of the Law because Claimant voluntarily terminated his 

employment with Employer without a necessitous and compelling reason. (R. Item 

6, Notice of Determination.) In addition, the Service Center issued two other 

notices, which (i) established a fault overpayment of $925 pursuant to Section 

804(a) of the Law, 43 P.S. § 874(a); (ii) assessed a penalty equivalent to 15% of 

the overpayment of benefits in the amount of $138.75 pursuant to Section 801(c) 

of the Law, 43 P.S. § 871(c); and (iii) imposed 5 penalty weeks under Section 

801(b) of the Law, 43 P.S. § 871(b). (R. Item 6, Notice of Determination of 

Overpayment of Benefit, Notice of Penalty Determination.) 

 

(continued...)

any week...[i]n which his unemployment is due to voluntarily leaving work without cause of a 

necessitous and compelling nature.” Id.
3

Claimant appealed, and on November 26, 2014, a hearing was held 

before the Referee at which Claimant testified that he was suspended without pay 

on July 29, 2014 and was informed that he had been terminated on August 26, 

2014 by his attorney, Dave Byer. (R. Item 10, Nov. 26, 2014 Hearing Transcript 

(H.T.) at 6, 11.) Claimant testified that he confirmed that he had been discharged

in a text message conversation with Edward Miller, the Chief of Police for the 

Borough and Claimant’s supervisor, which took place on August 26 and 27, 2014.3 

(Id. at 7-8; R. Item 10, Claimant Ex. 1: Text Messages.) However, Claimant stated 

that Robert Koban, the Borough Manager, was responsible for discipline, 

suspension and termination decisions related to Borough police officers and that he 

never received confirmation of his discharge from the Borough Manager, the 

Borough Council or anyone else at Employer. (H.T. at 8, 11.) Claimant testified 

that he entered into a separation agreement with Employer on or about September 

18, 2014, in which he released Employer from any liability related to his 

termination claim under the Police Tenure Act4in exchange for a severance 

package; as part of this settlement, he signed the September 18, 2014 letter 

indicating that he was resigning his position as a police officer effective August 29, 

 

3 On August 26, 2014, Claimant texted Chief Miller: “I would have expected to hear I was 

terminated by you not the way I found out.” Chief Miller responded on August 27, 2014:

First i had no idea what u were talkin about and didnt find out til latn last night 

iwas never informed otherwise i would i would have bin 1 to break news [sic]

(R. Item 10, Claimant Ex. 1: Text Messages.)

4 Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §§ 811–816.
4

2014.

5

 (Id. at 8-10; R. Item 4, Separation Information: Sept. 18, 2014 Letter; R.

Item 10, Claimant Ex. 2: Separation Agreement and General Release.)

Employer presented the testimony of Chief Miller and the Borough 

Manager. Chief Miller testified that he ordered Claimant during a July 23, 2014 

telephone call to provide a written response to a citizen’s complaint of rude 

behavior by Claimant from July 18, 2014, and Claimant refused to do so in 

violation of Employer policy. (H.T. at 18-20.) Chief Miller testified that Claimant 

did provide a written response to the complaint the next day; however, during a 

meeting with Claimant and the Borough Manager on July 29, 2014, Claimant 

refused to answer any questions regarding the incident in violation of a direct order 

from Chief Miller. (Id. at 20-21, 24-29.) Chief Miller stated that the Borough 

Manager then advised Claimant that he was suspended until further notice and 

following the meeting Claimant became irate and made repeated threatening 

statements that the Pennsylvania State Police should be put on standby because 

“it’s happening now” and that a certain resident of the Borough should “watch his 

back.” (Id. at 21-22, 29, 31.) Chief Miller stated that Claimant was given a formal 

notice of potential disciplinary action or discharge on August 18, 2014 related to 

the incident associated with the citizen’s complaint and Claimant’s refusal to 

provide a written response to the complaint. (Id. at 17, 31; R. Item 10, Employer 

Ex. 3: Notice.) Chief Miller testified that he did have a text message exchange 

with Claimant on August 26 and 27, 2014, but that he had no knowledge as of that 

date that Claimant had been terminated; Chief Miller stated that he asked the 

 

5

The separation agreement additionally provided that Claimant did not waive his right to bring 

an unemployment compensation claim and that Employer did not waive any objection or defense 

to a claim by Claimant for unemployment compensation benefits. (R. Item 10, Claimant Ex. 2: 

Separation Agreement and General Release ¶3.)
5

Borough Manager about Claimant’s text message and was informed only that an 

attorney for Employer was involved in discussions with Claimant’s attorney, Mr. 

Byer. (H.T. at 22, 29-30.) 

The Borough Manager testified that he did not terminate Claimant at 

any time following the suspension on July 29, 2014 through Claimant’s resignation 

and execution of the separation agreement on September 18, 2014 and that he had 

never spoken to Mr. Byer. (Id. at 33, 38.) The Borough Manager testified that 

Claimant’s employment was discussed during an executive session at a September 

2, 2014 Borough Council meeting and that Claimant was given notice on 

September 5, 2014 that a record of the incidents would be placed in his 

employment file. (Id. at 33-34.) The Borough Manager further testified that he 

had taken out an advertisement in the September 18, 2014 issue of the Portage 

Dispatch newspaper for a full-time police officer because at that time the 

Borough’s police force lacked a full-time officer as a result of Claimant’s 

suspension. (Id. at 36-39; R. Item 10, Claimant Ex. 3: Advertisement.) The 

Borough Manager stated that, while he did have a conversation with Chief Miller 

about his text message exchange with Claimant, the Borough Manager was not 

aware that Claimant had informed Chief Miller that he understood that he had been 

terminated. (H.T. at 38.) 

Following the hearing, the Referee issued a decision and order on 

December 4, 2014, concluding that Claimant voluntarily left his employment with 

Employer and that he had not proven cause of a necessitous and compelling nature

for doing so. (R. Item 11, Referee Decision and Order, Reasoning at 3.) However, 

the Referee determined that there was insufficient evidence to show that the 

overpayment of benefits was the result of any fault or fraud on behalf of Claimant 
6

and therefore modified the notices of determination issued by the Service Center to 

establish a non-fault overpayment pursuant to Section 804(b) of the Law, 43 P.S. § 

874(b), and to cancel the penalty weeks and penalty payment. (Id.)

Claimant appealed, and the Board affirmed the determination of the 

Referee. The Board found that Claimant had been suspended without pay and 

notified that a formal reprimand was forthcoming but that he resigned on 

September 18, 2014 prior to the receipt of formal discipline from Employer. (R. 

Item 16, Board Decision and Order, F.F. ¶¶8, 10-13, Discussion at 3.) The Board 

noted that an employee who resigns to avoid an imminent discharge, as opposed to 

the mere possibility of dismissal, will be treated as having been fired and eligible 

for unemployment benefits subject to eligibility under Section 402(e) of the Law, 

43 P.S. § 802(e), and other relevant provisions; however, the Board concluded that 

here Claimant did not face the threat of an imminent discharge when he signed the 

separation agreement and submitted his resignation letter on September 18, 2014. 

(R. Item 16, Board Decision and Order, Discussion at 3.) The Board further 

determined that Claimant had not shown that he had cause of a necessitous and 

compelling nature for resigning his employment, and the Board affirmed the 

Referee’s determination that Claimant was subject to a non-fault overpayment of 

$925 and that penalty weeks and a penalty payment were unwarranted in this case. 

(Id., Discussion at 3-4, Conclusion of Law.) Claimant thereafter petitioned this 

Court for review of the Board’s order.6

 

6 Our scope of review of the Board’s decision is limited to determining whether errors of law 

were committed, constitutional rights or agency procedures were violated, and necessary 

findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Wise v. Unemployment 

Compensation Board of Review, 111 A.3d 1256, 1261 n.5 (Pa. Cmwlth. 2015). 
7

Whether a claimant’s separation from employment constitutes a 

voluntary resignation or a discharge is a question of law subject to this Court’s 

plenary review and will be determined from the totality of the facts surrounding the 

separation. Wise v. Unemployment Compensation Board of Review, 111 A.3d 

1256, 1263 (Pa. Cmwlth. 2015); Middletown Township v. Unemployment 

Compensation Board of Review, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). The 

claimant bears the burden of demonstrating that the separation was a discharge. 

Middletown Township, 40 A.3d at 224; Pennsylvania Liquor Control Board v. 

Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth.

1994). If a claimant shows that he was discharged, then the employer has the 

burden to prove that the claimant engaged in willful misconduct; however, where 

the claimant cannot show that he was discharged, then the claimant must prove 

necessitous and compelling reasons for voluntarily separating from employment in 

order to obtain unemployment benefits. Middletown Township, 40 A.3d at 224.

A claimant who resigns to avoid an imminent discharge will be 

considered as having been discharged by the employer. Fishel v. Unemployment 

Compensation Board of Review, 674 A.2d 770, 773 n.2 (Pa. Cmwlth. 1996) (en 

banc); Pennsylvania Liquor Control Board, 648 A.2d at 126. On the other hand, a 

claimant who resigns only to avoid the possibility of being fired is deemed to have 

voluntarily quit. Fishel, 674 A.2d at 772-73; Pennsylvania Liquor Control Board,

648 A.2d at 126. “The degree of certainty in an employer’s language resulting in a 

[separation] has often been the difference between those cases in which the Courts 

have found that an employee’s [separation] was voluntary and those in which the 

employer’s...act was deemed to effect the [separation].” Fishel, 674 A.2d at 772 

(quoting Sweigart v. Unemployment Compensation Board of Review, 408 A.2d 
8

561, 563 (Pa. Cmwlth. 1979)). Thus, this Court has held that language from the 

employer suggesting that a claimant may be discharged following an investigation 

or that the claimant faces termination if her performance does not improve lacks 

the immediacy necessary to show a discharge under the Law. See Scott v. 

Unemployment Compensation Board of Review, 437 A.2d 1304, 1305 (Pa.

Cmwlth. 1981) (holding that a bus driver who resigned after being warned by her 

employer of possible dismissal if her account of an automobile investigation 

proved untrue had voluntarily quit); Rizzitano v. Unemployment Compensation 

Board of Review, 377 A.2d 1060, 1061 (Pa. Cmwlth. 1977) (holding that mechanic 

who was advised by his employer that he would be replaced if he did not increase 

his work output had voluntarily quit). Similarly, a recommendation of termination 

by a supervisor has been held to not constitute an imminent threat of discharge 

where the recommendation had not been approved by the party responsible for 

employment decisions. See Fishel, 674 A.2d at 772-73 (holding that teacher who 

resigned after being told by her principal that he would recommend termination to 

the school board but prior to a hearing before the board and the board’s vote had 

voluntarily quit); Goffi v. Unemployment Compensation Board of Review, 427 

A.2d 1273, 1274-75 (Pa. Cmwlth. 1981) (holding that professor who resigned after 

being told by the dean of the college that he would recommend the professor’s 

termination but prior to a definitive determination of the professor’s status by the 

board of trustees had voluntarily quit).

Upon review, we affirm the Board’s determination that Claimant 

voluntarily resigned from his position as a police officer with Employer. Evidence 

of record reflects that Employer notified Claimant on September 5, 2014 that he 

would face potential discipline for his failure to follow the orders of his supervisor 
9

in July 2014. However, Claimant did not wait for the resolution of the disciplinary 

process but instead submitted a resignation letter and signed a separation 

agreement that provided for a severance package in exchange for his general 

release of all claims against Employer except for his claim for unemployment 

compensation benefits. There was no evidence presented that Employer had ever 

made a final determination to terminate Claimant and Claimant admitted that no 

one at Employer formally notified him that he had been terminated. This evidence 

supports the Board’s conclusion that Claimant faced only the possibility of 

dismissal rather than an imminent dismissal when he submitted his resignation 

letter. The fact that Claimant entered into a separation agreement does not change 

our analysis; there is no indication in the agreement and there was no testimony 

presented to the Board that Claimant entered into the separation agreement under 

the threat of or to avoid imminent discharge. See Rosenberg v. Unemployment 

Compensation Board of Review, 560 A.2d 292, 293-94 (Pa. Cmwlth. 1989)

(holding that professor’s negotiation of separation agreement with college that 

included severance payment and a release of a potential tort claim by the professor 

against the college was evidence of the voluntariness of the professor’s separation); 

Gauntlett-Kirby v. Unemployment Compensation Board of Review, (Pa. Cmwlth. 

No. 340 C.D. 2014, filed November 10, 2014), slip op. at 2-4, 8-9, 2014 WL 

10298880 at *1, *4 (holding that claimant who entered into a separation agreement 

after being told by human resources that she “probably will be fired” voluntarily 

quit where she did not face the clear-cut choice of signing the agreement or being 

fired and the agreement did not contain a statement that it was entered into in lieu 

of claimant’s discharge).
10

Claimant argues that the Board failed to consider the totality of the 

circumstances regarding Claimant’s separation from Employer and that Claimant 

had not resigned, but in fact had been terminated by Employer. Specifically, 

Claimant contends that the Board failed to consider the text message conversation 

between Claimant and Chief Miller on August 26 and 27, 2014 and the 

advertisement placed in the September 18, 2014 edition of the Portage Dispatch, 

which would necessarily have to have been ordered prior to Claimant’s execution 

of the resignation letter and separation agreement.

However, contrary to Claimant’s arguments, the Board specifically 

considered Claimant’s evidence regarding the text message exchange with Chief 

Miller and rejected Claimant’s account that Chief Miller informed him that he had 

been terminated as not credible. (R. Item 16, Board Decision and Order, 

Discussion at 3 (“While the claimant testified that he was discharged on August 

26, 2014, the Board does not find the claimant’s testimony to be credible.”).) The 

Board is the ultimate arbiter of questions of witness credibility and evidentiary 

weight and therefore the Board’s determination that Claimant’s testimony that he 

learned he was terminated on August 26, 2014 was not credible may not be 

disturbed on appeal. Peak v. Unemployment Compensation Board of Review, 501 

A.2d 1383, 1385, 1388 (Pa. 1985); Collier Stone Co. v. Unemployment 

Compensation Board of Review, 876 A.2d 481, 483 (Pa. Cmwlth. 2005). 

Furthermore, the Board rejected Claimant’s argument that Employer’s decision to 

advertise for Claimant’s position prior to receipt of his resignation letter showed 

that Claimant had in fact been terminated. As the Board explained:

While the claimant’s counsel argues that discharge was 

imminent because the employer advertised for a full-time 

police officer position on September 18, 2014, the Board 

rejects this argument. Rather, the Board concludes that 
11

the employer was aware that the claimant was quitting 

and planned to accept his severance. As the claimant was 

under no threat of discharge at the time he quit, and the 

claimant only faced a mere chance of discharge, the 

Board rules under Section 402(b) of the Law accordingly.

(R. Item 16, Board Decision and Order, Discussion at 3.) 

Accordingly, we conclude that Claimant voluntarily separated from

Employer. Claimant has not argued that he had cause of a necessitous and 

compelling nature for his separation and therefore the order of the Board finding 

that Claimant was ineligible for unemployment compensation benefits under 

Section 402(b) is affirmed. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald J. Wyar, :

:

Petitioner :

:

v. : No. 865 C.D. 2015

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

ORDER

AND NOW, this 18th day of March, 2016, the Order of the 

Unemployment Compensation Board of Review in the above-captioned matter is 

hereby AFFIRMED.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge