IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Pollice, :

Petitioner :

:

v. : No. 384 C.D. 2015

: Submitted: October 23, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: November 16, 2015

Michael Pollice (Claimant) petitions for review of the order of the 

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

benefits under Section 402(b) of the Unemployment Compensation Law (Law)1

 

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

§802(b). Section 802(b) provides 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, irrespective of whether or not such work is in ‘employment’

as defined in this act[.]”
2

because he voluntarily quit his employment with Domenico’s Ristorante 

(Employer)2for cause that is not necessitous or compelling. We affirm.

Since 1998, Claimant was employed as a manager by Employer’s 

restaurant owned by his sister and brother-in-law, Patricia Lombardo and Dominic 

Lombardo. Claimant and his sister are next-door neighbors and Claimant lives 

with and cares for their mother who has dementia. Claimant had an argument with 

his sister because he told his nephews that their father, his brother-in-law, had 

“cheated” the IRS 20 years ago. During the argument, Claimant’s sister left his 

home. Claimant followed his sister outside, threw his work keys over the fence 

and into his sister’s swimming pool, and said, “I quit.” When Claimant went to the 

restaurant the next day, he was refused entrance by his brother-in-law.

Claimant filed a claim and the UC Service Center granted benefits, 

accepting Claimant’s assertion that he had been discharged and that Employer had

failed to show that he engaged in disqualifying willful misconduct under Section 

402(e) of the Law.3 Employer appealed and a hearing was scheduled before a 

Referee. However, there was an incorrect zip code on the hearing notice sent to 

Employer so neither Employer nor its counsel received the notice and did not 

appear at the hearing.

 

2

Employer intervened and filed a brief in support of the Board’s Decision and Order in 

Claimant’s appeal to this Court.

3

43 P.S. §802(e). Section 402(e) provides that “[a]n employe shall be ineligible for 

compensation for any week ... [i]n which his unemployment is due to his discharge ... from 

work for willful misconduct connected with his work....”
3

Claimant appeared and testified that he was fired because he got into a 

family argument with his sister and brother-in-law outside of work and was refused 

entry at the restaurant by his brother-in-law when he reported for work on the 

Friday following the argument. As a result, the Referee issued a decision affirming 

the UC Service Center’s determination.

Employer appealed to the Board and requested a remand alleging that 

it had not received notice of the Referee’s hearing. The Board remanded to the 

Referee to receive testimony and evidence on Employer’s reason for its 

nonappearance at the prior hearing and new or additional testimony and evidence 

on the merits.4 The evidence established that the notice of the prior hearing had the 

incorrect zip code, the Post Office returned the notice to the Board as

undeliverable, and Employer conceded that it did not receive proper notice of the 

hearing.

As to the merits, Claimant’s sister testified that following the 

argument, Claimant threw his work keys into their swimming pool, voluntarily quit 

his employment, and that he was never fired. Claimant’s brother-in-law testified 

that his wife told him that Claimant had quit following the argument; that Claimant 

 

4

See, e.g., Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 47 (Pa. 

Cmwlth. 2012) (“[W]e hold that the Board may not rely solely upon the sufficiency of statements 

made in a petitioner’s appeal document or request to reopen the hearing, but must provide the 

petitioner against whom the presumption of receipt is being asserted the opportunity to submit 

evidence to rebut that presumption and to support the asserted reasons believed to be proper 

cause for not appearing at the hearing before the Board determines whether the petitioner had 

proper cause for not attending the hearing....”) (emphasis in original and footnote omitted).
4

was never fired; that Claimant did not come to the restaurant the following day and 

that he did not refuse to let Claimant come in the restaurant that day.

Claimant rejected his sister’s and brother-in-law’s version of events, 

but conceded that he made negative comments to his nephews regarding his 

brother-in law and that he threw his keys into their swimming pool following an 

argument with his sister. However, he again testified that he never quit and that his 

brother-in-law prevented him from entering the restaurant when he reported to 

work the following day and told him that he did not work there anymore.

After finding that Employer’s failure to appear at the first hearing was 

due to administrative error, the Board reversed the award of benefits, explaining:

Based on the record before the Board, the Board 

concludes that the claimant had a fight with his 

employer/sister over comments he made to his nephews 

about their father. As a result of this fight, the claimant 

threw the keys over the fence adjoining the two homes 

into the swimming pool and abruptly quit his 

employment. The claimant is not credible that he was 

discharged during the fight on Thursday. The Board 

accepts as credible that the claimant attempted to return 

to work the following day but was refused entrance by 

his brother in law. However, as the claimant provided 

notice to the employer that he quit immediately the fact 

that he was subsequently refused entrance does not 

establish that he was discharged.

(Board 2/18/15 Decision and Order at 2-3).
5

In this appeal,5 Claimant argues that the Board6abused its discretion 

and its findings are not supported by fact or law because he never voluntarily quit 

or intended to quit his employment and he was not absent without leave because he 

was a partner in the business and could freely come and go. Rather, he asserts that 

 

5 Our review of the Board’s decision is limited to determining whether constitutional 

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

fact are supported by substantial evidence. Middletown Township v. Unemployment 

Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012). We have defined 

“substantial evidence” as such “relevant evidence that a reasonable mind might consider 

adequate to support a conclusion.” Palladino v. Unemployment Compensation Board of Review, 

81 A.3d 1096, 1100 n.3 (Pa. Cmwlth. 2013), appeal denied, 95 A.3d 278 (Pa. 2014).

6 While Claimant argues that the Referee erred in this regard, the record demonstrates 

that he is, in fact, appealing the Board’s Decision and Order denying benefits. Additionally, it is 

settled that the Board, and not the Referee, is the ultimate finder of fact in unemployment 

compensation proceedings. Peak v. Unemployment Compensation Board of Review, 501 A.2d 

1383, 1389 (Pa. Cmwlth. 1985); Chamoun v. Unemployment Compensation Board of Review, 

542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may either 

accept or reject a witness’ testimony whether or not it is corroborated by other evidence of record. 

This Court must examine the evidence in the light most favorable to the party who prevailed before 

the Board, and to give that party the benefit of all inferences that can be logically and reasonably 

drawn from that evidence. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 

831 (Pa. Cmwlth. 1977). Findings of fact are conclusive on appeal if the record contains substantial 

evidence to support the findings. Id. The fact that a witness has presented a version of the facts 

different from that accepted by the Board is not a basis for reversal if substantial evidence 

supports the Board’s findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 

650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). “It is irrelevant whether the record contains 

evidence to support findings other than those made by the fact-finder; the critical inquiry is 

whether there is evidence to support the findings actually made.” Ductmate Industries, Inc. v. 

Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citation 

omitted). As the burdened party with respect to establishing necessitous and compelling cause, 

Claimant had to meet both his burden of production and his burden of persuasion. See Kirkwood 

v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The 

Board was free to reject Claimant’s evidence regarding his purported necessitous and compelling 

cause even if it was unrebutted. Carriers Terminal Company v. Unemployment Compensation 

Board of Review, 449 A.2d 873, 874 (Pa. Cmwlth. 1982).
6

he properly returned to work after he had cooled down and that he was either 

discharged during the fight with his sister on Thursday or on Friday after he was 

refused entrance at the restaurant by his brother-in-law for reasons that do not 

constitute willful misconduct.

Where the claimant alleges that he did not quit but was fired, the 

claimant bears the burden to prove that he was discharged by the employer. Bell v. 

Unemployment Compensation Board of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 

2007). In order for a voluntary termination to be found, a claimant must have a 

conscious intent to resign from his employment. Monaco v. Unemployment 

Compensation Board of Review, 565 A.2d 127, 129 (Pa. Cmwlth. 1989). 

Additionally, when determining whether there has been a voluntary resignation, 

the totality of the circumstances must be considered. Philadelphia Parent Child 

Center, Inc. v. Unemployment Compensation Board of Review, 403 A.2d 1362, 

1363 (Pa. Cmwlth. 1979). Whether a termination of services is a voluntary quit or 

a discharge is a question of law to be determined by this Court based upon the 

findings of fact made by the Board. Goffi v. Unemployment Compensation Board 

of Review, 427 A.2d 1273, 1274 (Pa. Cmwlth. 1981). Moreover, an employee can 

revoke a resignation before its “effective date” and before an employer took steps 

to replace him is entitled to benefits. See PECO Energy Co. v. Unemployment 

Compensation Board of Review, 682 A.2d 40, 45 (Pa. Cmwlth. 1996).

Here, Claimant’s argument that he rescinded his resignation is based 

on the faulty premise that he did not immediately and effectively quit his 

employment when he told his sister “I quit” during their family argument and 
7

threw his work keys into her swimming pool. Additionally, those facts support the 

Board’s determination that Claimant voluntarily and effectively quit his 

employment that day before he attempted to revoke it by appearing at the 

restaurant on the following day. See Spadaro v. Unemployment Compensation 

Board of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004) (holding that the 

claimant’s resignation became effective when it was clearly accepted and his 

attempt to revoke it after the employer’s acceptance failed because it was too late); 

Centerville Clinics, Inc. v. Unemployment Compensation Board of Review, 445 

A.2d 1374, 1375 (Pa. Cmwlth. 1982); Porter v. Unemployment Compensation 

Board of Review, 434 A.2d 245, 246-47 (Pa. Cmwlth. 1981) (holding that a 

claimant’s departure from the employer’s premises without reclaiming her 

identification badge and orally proclaiming her resignation evidenced her 

immediate resignation notwithstanding the absence of a signed resignation form, 

and that she could not revoke the resignation where it was effective prior to the 

alleged act of revocation the following day).

Moreover, the Board properly found that the cause for Claimant’s 

voluntary quit, the argument with his sister over a personal matter, was not 

necessitous and compelling cause supporting the award of benefits. See Wert v. 

Unemployment Compensation Board of Review, 41 A.3d 937, 940 (Pa. Cmwlth. 

2012) (holding that personality conflicts, absent an intolerable work atmosphere, 

do not constitute necessitous and compelling cause to leaving one’s employment); 

Ann Kearney Astolfi DMD PC v. Unemployment Compensation Board of Review, 

995 A.2d 1286, 1289 (Pa. Cmwlth. 2010) (same). See also Rooney v. 

Unemployment Compensation Board of Review, 380 A.2d 957, 958-59 (Pa. 
8

Cmwlth. 1977) (holding that resentment of a reprimand, absent unjust accusations, 

abusive conduct or profane language, does not constitute necessitous and 

compelling reason for terminating employment).

In sum, we will not accede to Claimant’s request to reassess or 

reweigh the evidence presented to the Board, and the mere fact that he has 

presented a version of the facts different from that accepted by the Board is not a 

basis for reversal because substantial evidence supports the Board’s findings.

Accordingly, the Board’s order is affirmed.

__________________________________

DAN PELLEGRINI, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Pollice, :

Petitioner :

:

v. : No. 384 C.D. 2015

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 16th day of November, 2015, the order of the 

Unemployment Compensation Board of Review, dated February 18, 2015, at No. 

B-14-09-A-9766, is affirmed.

__________________________________

DAN PELLEGRINI, President Judge