IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David J. Taylor, :

Petitioner :

:

v. : No. 234 C.D. 2020

: Submitted: September 4, 2020

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: November 23, 2020

Daniel J. Taylor (Claimant), pro se, petitions for review of an 

adjudication of the Unemployment Compensation Board of Review (Board) holding 

that Claimant was ineligible for $547 in unemployment compensation benefits he 

had collected and, thus, liable for a non-fault overpayment of benefits pursuant to 

Section 804(b) of the Unemployment Compensation Law (Law).1In so holding, the 

Board affirmed the Referee’s determination that Claimant was ineligible for benefits 

under Section 402(b) of the Law, 43 P.S. §802(b),2 because he voluntarily terminated 

his employment without cause of a necessitous and compelling nature. The Board 

also affirmed the Referee’s determination that Claimant was not eligible for partial 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §874(b). 

2 Section 402(b) of the Law provides, in relevant part, 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[.]” 43 P.S. §802(b). 
2

benefits under Section 404(d) of the Law, 43 P.S. §804(d).

3

 Discerning no error by 

the Board, we affirm.

In August of 2019, Claimant submitted an online application for 

unemployment compensation benefits after his loss of employment with Riverbend 

Foods, LLC. He began to collect benefits as of July 28, 2019. On October 1, 2019, 

Claimant began employment with Bookminders Pittsburgh, Inc. (Employer) as an 

accountant. Claimant resigned after his first day. 

On October 6, 2019, Claimant reported to the Unemployment 

Compensation (UC) Service Center an estimated income of $50 for the claim week 

ending October 5, 2019, for deduction from his weekly unemployment benefit 

amount. On October 24, 2019, Claimant informed the UC Service Center that he

actually received $210 in wages for his single day of employment. On October 28, 

2019, Claimant further informed the UC Service Center that his employment with 

Employer had been full-time; intended to be permanent; and that he had voluntarily 

terminated his employment. The UC Service Center concluded that Claimant was 

ineligible for the $547 he received for the claim week ending October 5, 2019, 

because he was unemployed that week by his own choice. 

The UC Service Center then issued three Notices of Determination.

The first notice advised Claimant that he was ineligible for benefits under Section 

402(b) of the Law because he lacked a necessitous and compelling reason for leaving 

his job with Employer. The second notice established a $547 fault overpayment 

under Section 804(a) of the Law, 43 P.S. §874(a). The third notice advised Claimant 

3 Section 404(d)(1) of the Law provides, in part, that an eligible claimant will be paid 

“compensation in an amount equal to his weekly benefit rate less the total of ... the remuneration, 

if any, paid or payable to him with respect to such week for services performed which is in excess 

of his partial benefit credit....” 43 P.S. §804(d)(1). 
3

that he was ineligible for reduced compensation benefits under Sections 4(u), 401, 

401(c), and 404(d) of the Law.

4

 Claimant appealed, and a hearing was held before 

a Referee. 

Claimant, represented by counsel, testified that he worked for 

Employer as an accountant for one day, i.e., October 1, 2019, and left at the end of 

that day. Notes of Testimony, 12/9/2019, at 3-4 (N.T. __); Certified Record at 63-

64 (C.R. __). Claimant explained that this was the first of a four-day orientation

period, after which he and Employer would discuss “whether or not [the position] 

was a good fit for either party.” N.T. 10; C.R. 70. 

Claimant explained that he suffers from a medical condition that has 

caused facial paralysis, and it makes speaking difficult and meeting with others in 

person an uncomfortable experience. Claimant discovered on his first day that the 

position with Employer would require weekly face-to-face meetings with clients. 

Further, Claimant struggled to keep up with the pace of the training. Thus, at the

first day’s conclusion, he informed Employer that he would not return. Claimant did 

not ask Employer if other positions were available. 

The Referee held that Claimant was ineligible for unemployment 

compensation for the week ending October 5, 2019, because he lacked a necessitous 

and compelling reason for leaving his employment. The Referee also held that 

Claimant was at fault for the overpayment of his unemployment compensation 

because he did not report to the UC Service Center that he had quit his job. Finally, 

the Referee held that Claimant was not eligible for partial benefits under Sections

4 Section 4(u) of the Law defines which individuals qualify as “unemployed.” 43 P.S. §753(u). 

Section 401 of the Law provides for the payment of unemployment compensation to individuals 

who are unemployed. 43 P.S. §801. Section 401(c) of the Law provides, in part, that an individual 

must make “a valid application for benefits ... in the proper manner” to qualify for unemployment 

compensation benefits. 43 P.S. §801(c). 
4

4(u), 401, and 401(c) of the Law because he became unemployed the week ending 

October 5, 2019, without a necessitous and compelling reason. The Referee also 

found that Claimant intentionally underreported his earnings to be $50 for October

1, 2019; thus, Claimant was overpaid through his own fault. 

The Board adopted the Referee’s determination that Claimant was 

ineligible for unemployment compensation benefits under Section 402(b) of the Law

for voluntarily quitting. The Board rejected the Referee’s finding that Claimant 

purposely reported inaccurate employment information in his application for 

benefits. Thus, the Board concluded that the overpayment of benefits to Claimant 

was a non-fault overpayment governed by Section 804(b) of the Law, 43 P.S. 

§874(b). Claimant petitioned for this Court’s review.5

On appeal, Claimant raises two issues for our review. He first argues 

that the Board erred in concluding that he voluntarily terminated his employment 

without a necessitous and compelling reason, thereby rendering him ineligible for 

unemployment compensation under Section 402(b) of the Law.6 Claimant asserts 

that his activity with Employer did not constitute full-time employment and that he 

and Employer mutually agreed on Claimant’s departure his first day. Thus, Claimant 

argues that he is entitled to benefits for the claim week ending October 5, 2019.

7

 

5 This Court’s review determines whether an error of law was committed, whether constitutional 

rights were violated, and whether necessary findings of fact are supported by substantial evidence. 

Brown v. Unemployment Compensation Board of Review, 49 A.3d 933, 936 n.4 (Pa. Cmwlth. 

2012). 

6 The Board held in Claimant’s favor when it concluded that he was eligible for benefits under 

Sections 4(u), 401, and 401(c) of the Law, and Claimant does not challenge that conclusion on 

appeal. Nor does he argue that he would be eligible for partial benefits under Section 404(d) of 

the Law, despite his ineligibility under Section 402(b). Thus, with respect to his eligibility for 

benefits, Claimant’s challenge is based solely on Section 402(b) of the Law. 

7 Separately, Claimant appears to argue that, even if he was ineligible for benefits under Section 

402(b) of the Law for the claim week ending October 5, 2019, he should have become eligible for 
5

Second, Claimant challenges the calculation of his overpayment, which, he asserts, 

should have been calculated as $41, not $547. 

The Board responds that Claimant has not offered a necessitous and 

compelling reason for terminating his employment. Regarding Claimant’s second 

issue, the Board asserts that because Claimant was found ineligible for benefits 

under Section 402(b) of the Law, he was ineligible to receive the entire $547 in 

benefits Claimant received for the week of October 5, 2019. That is the amount

recoupable under Section 804(b) of the Law. 

We first address Claimant’s argument that his single day of training did 

not constitute “employment” under the Law. A claimant’s training with a new 

employer, for which he is compensated, constitutes employment within the meaning 

of the Law. See Kirk v. Unemployment Compensation Board of Review, 442 A.2d 

1234, 1236 (Pa. Cmwlth. 1982) (claimant’s attendance at an employer’s orientation 

session established an employment relationship); Haqq v. Unemployment 

Compensation Board of Review (Pa. Cmwlth., No. 1276 C.D. 2010, filed January

26, 2011), slip op. at 4-5 (training remuneration received from an employer 

constituted wages under the Act) (unreported).8 

Here, Claimant’s training concerned computer programming “that [he] 

would use to perform [his] job,” N.T. 6-7; C.R. 66-67, and Claimant received 

compensation. Moreover, Claimant conceded in an email to the Board that he was 

“perhaps ... technically in the employ of [Employer] for one day....” C.R. 95. He 

benefits in subsequent weeks. An issue is waived when a claimant fails to raise it before the 

Referee. Dehus v. Unemployment Compensation Board of Review, 545 A.2d 434, 436 (Pa. 

Cmwlth. 1988). Because Claimant did not raise this issue before the Referee, it is waived. 

8

“[A]n unreported panel decision of this Court issued after January 15, 2008,” may be cited “for 

its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code §69.414(a). 
6

believed that the four-day training period was to serve as a trial period of 

employment, after which he or Employer could choose “to continue or terminate 

employment based upon the results of the training.” Id. (emphasis added). In short, 

Claimant’s own evidence supports the Board’s finding of fact that Claimant was 

“employed” by Employer for a single day. 

Claimant maintains, however, that he and Employer “agreed that they 

were not mutually compatible.” Claimant Brief at 11. Claimant appears to be 

asserting that his separation from Employer was not wholly voluntary. 

Whether a claimant’s separation from employment is a voluntary 

resignation or a discharge is a question of law subject to appellate review. Nolan v. 

Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 (Pa. Cmwlth. 

2002). The claimant bears the burden of proving that his separation from 

employment was a discharge rather than a voluntary termination. Kassab Archbold 

& O’Brien v. Unemployment Compensation Board of Review, 703 A.2d 719, 721 

(Pa. Cmwlth. 1997). Likewise, a claimant bears the burden of proving a necessitous 

and compelling reason for leaving his job. Spadaro v. Unemployment Compensation 

Board of Review, 850 A.2d 855, 860 (Pa. Cmwlth. 2004).

When the Referee asked Claimant whether his separation from 

Employer was a discharge or whether he quit, Claimant testified: “I quit.” N.T. 5; 

C.R. 65. Claimant decided not to return to Employer for work because the training 

was “progressing terribly,” he “wasn’t keeping up with the pace of the training” set 

by Employer, and he began to “question [his] ability” to do the job. N.T. 8-9; C.R. 

68-69. Again, Claimant’s own testimony establishes that he quit his employment 

based on his own assessment of his potential performance and not because Employer 

asked him to leave. Claimant offered no evidence that his departure was a mutual 
7

decision between him and Employer. The Board did not err in concluding that 

Claimant voluntarily terminated his employment without cause of a necessitous and 

compelling nature, rendering Claimant ineligible for benefits under Section 402(b) 

of the Law.9 

We next address Claimant’s challenge to the calculation of the 

overpayment. Claimant explains that his weekly unemployment benefit of $561 

together with the $210 he earned during the claim week ending October 5, 2019, 

totals $771. He argues that, under Section 404(d) of the Law,10 his weekly benefit 

should be reduced only by income that exceeds his partial benefit credit (which is 

30% of his weekly benefit). Accordingly, he was allowed to receive up to $730 in 

combined benefits and income per week (or 130% of his weekly benefit rate). See

Section 4(m.3) of the Law, 43 P.S. §753(m.3) (defining “partial benefit credit” as 

“remuneration ... which is not in excess of [30%] of the individual’s weekly benefit 

rate....”). Claimant argues that the $771 he received is only $41 more than the $730 

in benefits and income to which he was entitled. Accordingly, Claimant insists that 

his overpayment should have been calculated to be $41. Claimant’s calculation 

assumes that he was entitled to unemployment compensation benefits for the week 

ending October 5, 2019. However, as we have explained, Claimant is ineligible for 

benefits, partial or otherwise, for the week ending October 5, 2019. His resignation 

rendered him ineligible for the entire week. 

Claimant received $547 in unemployment compensation benefits 

during the claim week ending October 5, 2019, just as he did in all claim weeks 

9 Claimant does not challenge the Board’s assessment of a non-fault overpayment. See Claimant 

Brief at 12. 

10 Although Claimant cites Sections 401 and 4(u) of the Law in support of this position, it appears 

that his calculation is actually based on Section 404(d) of the Law. 
8

during which he received benefits prior thereto.

11

 Claimant does not dispute that he 

received that amount. Claimant was paid $547 in benefits to which he was not 

entitled because he voluntarily left his job with Employer without a necessitous and 

compelling reason. Accordingly, he received an overpayment of $547.12 

Accordingly, we affirm the Board’s adjudication. 

 

 MARY HANNAH LEAVITT, President Judge

11 Claimant is correct that his weekly benefit rate is $561, not $547. However, Section 404(e)(4)(ii) 

of the Law, 43 P.S. §804(e)(4)(ii), provides, in relevant part: “[E]ach claimant shall have his 

weekly compensation ... reduced ... by the per centum redetermined under section 301.8 [of the 

Law, added by the Act of October 19, 1988, P.L. 818, 43 P.S. § 781.8 (relating to trigger rate 

redeterminations)], if and when applicable.” Section 301.8 of the Law provides a process through 

which the Secretary of Labor and Industry shall determine, inter alia, benefit reductions in any 

given year. Apparently, Claimant’s actual weekly benefit was reduced to $547 pursuant to that 

process. See Board Brief at 12 n.18.

12 Because the $547 is a non-fault overpayment subject to Section 804(b)(1) of the Law, Claimant 

will not be required to repay that amount, but that amount may be “deducted from any future 

compensation payable to him[.]” 43 P.S. §874(b)(1). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David J. Taylor, :

Petitioner :

:

v. : No. 234 C.D. 2020

: 

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 23rd day of November, 2020, the adjudication of the 

Unemployment Compensation Board of Review dated January 30, 2020, in the 

above-captioned matter is AFFIRMED.

 

 MARY HANNAH LEAVITT, President Judge