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 Unem ployment Compensation Law (Law). 1 In 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 nece ssitous 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 Pitt sburgh , Inc. (Employer) as a n
accountant

. Claimant resigned after his first day.

On October 6, 2019, Claimant reported to the U nemployment
C ompensation (UC) Service Center an estimated i ncome of $50 for the claim week ending October 5, 2019 , for deduction from his weekly unemployment bene fit

amount

. On Octobe r 24, 2019, Claimant informed the UC Service C enter t hat he actually received $210 in wages for his single day of employment

. On O ctober 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
ineli gible for the $547 he received f or 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 Se ction 80 4(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 eli gible 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 Section s 4(u), 401, 401(c) , and 404(d) of the Law

. 4 C laimant 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

- 6 4 (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 c ondition that has caused facial paralysis, and it make s 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 u p 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 Ref eree 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 Section s

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

co mpensation benefits. 43 P.S. § 801(c).4

4(u), 401 , and 401(c) of the Law because he became unemploy ed the week ending October 5, 2019, without a necessitous and compelling reason

. T he Referee also
found that C laimant intentionally underreport ed his earnings to be $50 for October 1, 2019 ; thus, Claimant was overpaid through his own fault

.

T he Board ad opted the Referee’s determination that C laimant was ineligible for unemployment compensation benefits under Section 402(b) of the Law for voluntarily quitting

. T he Board rejected the Referee’s finding that Claimant purposely report ed inaccurate e mployment information i n 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

a nd Employer mutually agreed on C laimant’s departure his first day

. Thus, Claimant argues that he is entitled to bene fits 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 9 33, 936 n.4 (Pa. Cmwlth. 2012).

6 The Board held in Claimant’s favor when it concluded that he wa s eligible for benefits under Section s 4(u), 401 , and 401(c) of the Law , and Claimant does not challenge that conclusion on appeal

. Nor does he argue that h e 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 for5

Second, Claimant challenges the calculation of his overpayment , which, he asser t s, 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 L aw, 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 L aw.

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

not c onstitute “ 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. 19 82) ( 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 remun eration rec eived from an employer constituted wages under the Act) (unreported). 8

Here, Claimant ’s training concerned computer programming “that [he] would use to perfor m [his] job, ” N.T. 6

- 7; C.R. 6 6

- 6 7 , and Claimant received compensation. Moreover, Claimant conceded in an email to the Board that he was “perhaps

... technically in the employ of [Employer] f or one day....” C.R. 95. He

benefits in subsequent weeks. A n 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 unrepo rt ed 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 Opera ting 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 maint ains , however, that he and Employer “agreed that they were not mutually compatible.” Claimant Br ief at 11. Claimant appears to be asserting that his se paration from Employer was not wholly voluntary.

W hether 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 employme nt 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 ne cessitous 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 testif ied: “I quit.” N.T. 5;
C.R. 65. C laimant dec ided 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 evidenc e that his departure was a mutual7

decis ion 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 O ctober 5, 2019,
total s $771

. He argues that , un der 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 1 30% of his weekly benefit rate )

. See
Secti on 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 sho uld have been calculated to be $41. C laimant’s calculation assumes that he was entitled to unemployment compensation be nefits 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 ineligi ble 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 ass essment 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. Claima nt 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 redeterm ined 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 a nd 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 23 rd 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 Judg e