IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan M. Hartman, : Petitioner :

:

v. : No. 985 C.D. 2019

: Submitted: May 12, 2020 Unemployment Compensation Board : of Review, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CROMPTON FILED: August 14, 2020

Susan M. Hartman (Claimant) petitions for revie w from an order of the

Unemployment Compensation Board of Review (Board), finding her ineligible for

unemployment compensation (UC) benefits pursuant to Section 402(b) of the

Unemployment Compensation Law (Law). 1 C laimant argues that the Board

capriciousl y disregarded competent, critical evidence in rendering its decision and

that it failed to explain its reasoning in sufficient detail to allow for meaningful

review. Claimant acknowledges s he provided evidence at he r hearing before the UC

referee that was contrary to statements made to the UC s ervice c enter

, but claims

that she adequately explained the inconsistency

. Claimant adds that the Board

disregarded a separation agreement between her and Pennsylvania Messenger

Solutions, Inc. (Employer) and offered no explanation as to why it found her

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §802(b).2

statements to the UC s ervice c enter to be credible while not crediting the statements

she made under oath before the UC referee

. For the reasons that follow, we affirm

the order of the Board.

I. Background

On or about February 4, 2019, Claimant , who had been a trainer for

Employer, applied for UC benefits. On February 19, 2019, the local service center

denied UC benefits pursuant to Section 402(b) of the Law

. 2 C laimant appealed

, and

a UC r eferee conducted a hearing that was attended only by Claimant and her legal

counsel , as Employer did not participate. Certified Record ( C. R. )

, Item No. 8

. Relevant here, the hearing notice stated , in pertinent part :

SPECIFIC ISSUES to be considered in this appeal

- See attached list of issues for additional information.

# 15

- Se ction 402(b)

- Whether claimant’ s unemployment was due to voluntarily leaving work without cause of necessitous and compelling nature.

OTHER ISSUES that may be considered

- See attached list of issues for additional information.

# 17

- Se ction 402(e)

- Whether claimant’ s unemployment was due to discharge or temporary suspension from work for willful misconduct connected with employment. # 1

- Section 3

- Whether claimant’ s suspension or dischar ge was the result of non

- work related conduct and was due to the claimant's own fault.

. . .

2 On her “Internet Initial Claim s ” form, Claimant stated that she quit her position with Employer due to personal reasons. Specifically, Claimant noted that she quit because she

“ need [ed] to help care for [her] mother/ [a] nd help [her] daughter with children .” Certified Record ( C.R. ) , Item No. 2.3

C.R., Item No. 7.

Prior to the hearing, Claimant had served subpoena s on representatives

of Employer to appear at the hearing and to bring “Claimant’ s statemen t to the

Employer explaining why she was resigning dated 1 / 25/19.” C. R

. , Item No. 7, Ex s

.
R9 and R10

. Employer supplied the subpoenaed document but explained that it was
not contesting Claimant’s appeal of the UC service center’s determination and that

the subpoenaed employees were unable to attend the hearing. C. R.

, Item No. 7, Ex

.
R12

.

At the hearing, Claimant testified that she last worked for Employer on

January 25, 2019

, 3 and that her employment had been “ terminated .” C.R., Item No.

8, Hearing Transcript, Notes of Testimony ( N.T. ) at 6. She further testified that

Employer’s president, Michael Heim, told her the reason for her termination was

because she was “ dishonest.” Id

. She acknowledged signing a separa tion

agreement, because she was goi ng to be terminated anyway and that Mr. Heim told

her he was “going to put down that [she] resigned.” Id

. Claimant testified that she

was “confused” and that was why she stated something different w hen she made her

initial claim for UC benefits. C.R., I tem No. 8 , N.T. at 8

. Claimant further testified

that Employer’s of

fice m anager came to her home to have her sign th e separation

agreement and to inform her that she

, i.e. , Claimant, needed to write a resignation

statement. C.R., Item No. 8 , N.T. at 9.

3 Later in her testimony, Claimant stated that the last date she was physically in the office was January 7, 2019. However, she received paid time off after that. She testified to receiving $4,160.00 as part of a “ separation agreement ” with Employer. C.R., Item No. 8

, Hearing Transcript

, Notes of Testimony ( N.T. ) at 9

- 10.4 Claimant’s counsel noted that Employer did not appear for the hearing

“to prove their [ sic ] burden that they [ sic ] fired [Claimant] for willful misconduct [ 4 ]

and therefore they [ sic ] [had] not met their [ sic ] burden. ” C.R.

, Item No. 8, N.T. at

10. The referee responded to this point as follows :

I usually don’ t comment on closing statements, but I do want to make it clear for the record that because the Employer didn’ t provide any information, the only information the Department [of Labor and Industry] had was [Claimant’s] information saying she voluntarily quit. So the specific issue before me today is Section 402 (b) which is [sic] burden on the Claimant. There is no indication that there was a discharge. And so that issue is not before me in today’ s h earing becau se this is the first that there’ s any indication about a discharge. So when you say that the Employer didn’ t meet their [sic] burden, I can’ t even consider that section of law because it’ s not listed as a specific issue.

Id

.

Subsequently, the following exchange 5 ensued between Claimant’s

legal counsel and the UC referee:

[ Claimant’ s A ttorney : ] Respectfully, Referee, it is listed as an issue. The willful misconduct is listed as an issue.

[ Referee : ] As other issues which may be considered; however, the Board requires that the specific issues to be considered in the

4 Section 402(e) of the Law states, in pertinent part, that “an employe shall be ineligible for compensation for any week

— [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, ir respective of whether or not such work is ‘employment’ as defined in this act.” 43 P.S. §802(e).

5 Reproduced verbatim, or essentially verbatim

, from the UC referee hearing transcript. C.R., Item No. 8.5 hearing that the only issues I can literally rule on, are the specifics [sic] issues that are listed. And that gives notice to the partie s that these are the issues that will be considered. Others that may be considered, there are several others, however, if both parties are not here to grant me to agree, to allow me to consider those sections

, they are not before [me] . And I have tried it before where I had other issues that may be considered and ruled on those and one party is not there, the Board has actually sent them back with directions saying they must be listed as a specific issue in order for the Referee to cons ider that section of law. So it’ s just standard practice in most of the Referee’ s [sic] Offices to list the other separation sections as other issues that may be considered in case it comes up at the hearing. If it does come up at the hearing, I still have to have both parties gr ant me permission to rule if it’ s not listed as a specific issue.

[ Claimant’ s A ttorney : ] Okay, that is not my understanding of the law and I do believe that you can consider those issues and I wish I had the case in front of me, but it also one of th e reasons that when the Referee’ s Office sends out a List of Issues, they also (inaudible) and hear [ sic ] are all the other issues.

. . . In this case we had a Claimant who was confused about what she had to say and what she had to do because of the separa tion agreement. However, she has come in and testified truthfully tha t she was fired and so that she’ s the only evidence that we have to present.

[ Referee : ] Okay. At this

-- that I just wanted to put it on the record that I’ m only allowed to rule under specific issues to be considered in the appeal.

. . . [W] e, as Referees have been told from our Board and from our direction that unless it’ s listed as a specific issue we must

-- the other issues may be considered but that means that we have to get permi ssion from both parties. The Employer is not h ere to allow me to conside r 402 (e). Had I had any indication that that was a potential issue, I could have assessed the specific issue and I could have addressed it regardless of whether the Employer appeared or not appeared.

C.R., Item No. 8, N.T. at 10

- 11.6 Claimant’s counsel requested a continuance so that the issue of

Claimant’s termination could be listed as a “specific issue” in a subsequent hearing

notice. C.R.

, Item No. 8, N.T. at 11. In response, the UC referee stated:

I’ m not going to grant that c ontinuance at this time. There’ s nothing in the appeal that eve n references termination. So, I’ m going to rule with what I have. I mean I have a couple options; one is I can rule with what I have or I c an send it back to the Service Center for them [sic] to consider 402 (e). But I believe that it would probably be in the best interest of [Claimant] for me to make a Decision because if I send it back to the Service Center to give them [sic] the opportunit y to rule on that, it could take longer. But your request for continuance at this time, because I had no

-- to me that’ s not a cause for continuance, so that request is denied.

. . .

C.R.

, Item No. 8, N.T. at 11

- 12.

The referee issued a decision in whi ch she made the following

finding s 6 :

2. On January 25, 2019, the Claimant signed a Confidential

Separation Agreement and General Release and received $4,160 separation payment.

3. On January 25, 2019, the Claimant provided a written resignation letter addressed to Michael Hei m, President of [Employer] , which stated, “ I regretfully need to inform you that I will need to depart working at [Employer] . There has been an unforeseen event in my family and am needed to help c are for a family member.”

4. On February 4, 2019

. . . the Claimant filed an Application for Benefits through the internet and provided that she quit fo r

6 These findings are re produced verbatim, or essen tially verbatim

, from the UC referee’s decision. C.R., Item No. 9.7 personal reasons, explaining “ I need to help care for my mother/ [a] nd help daughter with children

. ”

5. The Claimant further provided on the int ernet initial claims document “ My sister needs help caring for my mother. Also, my daughter needs help with her children as she went back to college. As soon as a schedule is worked out I w ill be able to seek employment.”

6. The Altoona UC Center issued a Notice of Determination finding the Claimant to be ineligible for benefits under Section 402(b) of the Pennsylvania UC Law beginning with waiting week ending February 9, 2019, finding the Claimant quit because she needed to take care of her mother.

7. The Claimant filed a timely Petition for Appeal which stated, in part, “

. . . [t] he Claimant endured a family emergency which required her attention in another st ate (NJ). The family situation requires the Claimant to be aware [sic] from h er employer for extended periods of time as she must care for her ailing mother.

. . . ”

C.R., Item No. 9, UC Referee’s Dec

., 4/16/19 , Findings of Fact (F.F.) Nos. 2

- 7

.

The referee added:

Section 402(b) of the [ Law ] provides that a claimant shall be ineligible for compensation for any week in which the claimant’ s unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. The Pennsylvania Courts have held that an employee wh o claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve the employment. The Pennsylvania Courts have consistently held that good faith requires a claimant to show that prior to terminating the employment, the problem which necessitated the8 quit was communicated to the employer. Once the employee has informed the employer of the problem, however, the burden shifts to the employer to offer a suitable accommodation. In the present case, at th e hearing the Claimant testified that she was terminated after her Employer accused her of being dishonest. There was nothing in the documents the Claimant provided to the UC Service Center to indicate the Employer initiated the separation. The Claimant of fered a separation agreement which she and the Employer signed. However, the document indicates there was a separation. Counsel for the Claiman t requested a subpoena for the “Claimant’ s statement to the Employer explaining why she was resigning dated 1/25 /19

. ” The Employer’ s counsel provid ed the statement to the Referee’ s Office. The statement indicates the Claimant voluntarily quit for personal reasons. The Claimant did not provide testimony regarding quitting her employment. The Referee cannot find tha t the Claimant has established a necessitous and compelling reason for leaving employment at the time the Claimant did or that the Claimant acted with ordinary common sense and made a good faith effort to preserve the employment. Accordingly, benefits must be denied under Section 402(b) of the Pennsylvania UC Law

. . . .

The determination of the UC Service Center is AFFIRMED; the Claimant is INELIGIBLE for benefits under Section 402(b) of the

. . . Law.

. . .
C.R., Item No. 9, UC Referee’s Dec., 4/16/19.

Claimant appealed to the Board which , after reviewing the record

without an additional hearing, issued the following order :

The [ Board ] , after considering the entire record in this matter, concludes that the determination made by the Referee is proper under the [ Law ] . Therefore, the Board adop ts and incorporates the Referee’ s conclusions. The Board adds a finding, which shall read, “ The claimant volunta rily quit for personal reasons.” The Board adopts and incorporat es the remainder of the Referee’ s f in dings.9 In her appeal, the claimant argues that she was fired and did not quit. The Referee c learly discredited the claimant’ s testimony and the Board finds no reason to disturb this credibility determination. The Board specifically discredits the claimant's testimony that she was disch arged, and credits the claimant’ s Petition for Appeal and Internet Initial Claims form, where the claimant clearly stated she quit and did not say she was fired. The claimant also argues that the Referee should have g ranted her a continuance to allow a new hearing notice to be provided to all parties to include the issue of willful misconduct. The Referee explained that she was not going to grant such a continuance because there was nothing in the claimant’ s appeal tha t even referenced termination. The Referee permitted the claimant to testify about discharge, but the Referee did not credit the claimant on this, and neither does the Board. The claimant quit due to personal reasons, and she has not proven that she explor ed alternative and less drastic solutions than quitting her job for her family situation before quitting.

. . . .

The decision of the Referee is affirmed.

C.R., Item No. 12.

II. Petition for Review

Claimant filed a petition for review 7 with this Court ar guing that the

Board capriciously disregarded competent, critical evidence in rendering its

7 Our review is limited to determining whether the Board’s findings were supported by substantial evidence, whether the Board committed an error of law, or whether constitutional rights

we re violated. Dep’t of Corr. v. Unemployment Comp. Bd. of Review , 943 A.2d 1011 (Pa. Cmwlth. 2008). The Board’s findings of fact are conclusive on appeal as long as they are supported by

substantial evidence. Grieb v. Unemployment Comp. Bd. of Review , 82 7 A.2d 422 (Pa. 2003). “Substantial evidence is defined as evidence a reasonable mind might accept as sufficient to support the conclusion reached.” Frimet v. Unemployment Comp. Bd. of Review , 78 A.3d 2 1, 26 n.7 (Pa. Cmwlth. 2013). In determining whethe r there is substantial evidence to support the Board’s findings, this Court must examine the testimony in the light most favorable to the10

de termination and asserting that the Board failed to sufficiently explain the reasons

for its determination in order to allow for meaningful review. As noted previously,

Claimant adds that the Board disregarded the separation agreement that was in

evidence and offered no explanat ion as to why it found Claimant’ s statements to the

service center to be credible but did not find her statements made under oath

, at the

hearing before the UC referee

, to be credible.

A. Applicable Law and the Positions of the Parties

“[T]he [Board] is the ultimate factfinder in [UC] matters

. . . . ” Sipps

v. Unemployment Comp. Bd. of Review , 181 A.3d 479, 484 (Pa. Cmwlth. 2018 )

(quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review , 949 A.2d

338, 342 (Pa. Cmwlth. 2008)). As the factfinder, the Board is entitled to make its

own credibility determinations regarding witnesses. Serrano v. Unemployment

Comp. Bd. of Rev iew , 149 A.3d 435 (Pa. Cmwlth. 2016). These credibility

determinations are not questioned on appellate review. Id . “It is irrelevant whether

the record contains evidence to support findings other than those made by the

factfinder ; the critical inquiry i s whether there is evidence to support the findings

actually made.” Ductmate Indus.

, Inc.

, 949 A.2d at 342.

Claimant a ver s that the Board issued a n order adopting the UC referee’ s
conclusions, adding the finding of fact : “ Claimant voluntarily quit for personal

reasons.” Pet’r’s Br. at 8; C.R., Item No. 12. Claimant argues that this was based

on statements she made to the UC s ervice c enter but that the Board disregarded her

prevailing party, giving that party the benefit of any inferences which can logically and reasona bly
be drawn from the evidence. Johnson v. Unemployment Comp. Bd. of Review , 502 A.2d 738 (Pa. Cmwlth. 1986).11

testimony and the s eparation a greement admitted into evidence at the hearing before

the UC referee

. C.R., Item No. 8; N.T. 6

- 7 , Claimant’s Ex. 1

. Citing this Court’s

opinion in Bertram v. Unemployment Comp ensation Board of Review , 206 A.3d 79

(Pa Cmwlth. 2019 ), 8 Claimant asserts that the Board

, in th e present case , failed to

acknowledge critical, relevant evidence and failed to explain its decision in enough

detail to permit meaningful review. 9

Claimant maintains that t he separation agreement to which she refers

notably states that Employer “ ha s decided to end its employment relationship with

[ Claimant ] for legitimate business reasons

, ” will on ly provide neutral references to

potential employers

, and will “ not release information regarding [Claimant’s]

termination or eligibility for rehire, provid ed Claimant directs all requests for

references to Michael Heim.” C.R., Item No. 8, Claimant’s Ex. 1

. Claimant asserts

that t he a greement further provide s that the employment relationship between

Claimant and Employer is to be permanently ended. Pet’r’s Br. at 13. Claimant also

contends that the Board ignored the fact that E mployer disregard ed the subpoenas to

appear at the hearing before the UC referee

, and that h ad the subpoenaed employe es
appeared as required, they could have either disputed

, or confirmed

, Claimant’s

testimony she was fired. Pet’r’s Br. at 13

.

8 A capricious disregard of evidence occurs where the factfinder completely ignores overwhelming evidence without comment. Bertram v. Unemployment Comp. Bd. of Revie w , 206
A.3d 79 , 83 (Pa. Cmwlth. 2019) (citing Wise v. Unemployment Comp. Bd. of Review , 111 A.3d 1256 (Pa. Cmwlth. 2015) )

. “I mplicit credibility determinations do not resolve the conflicts
between

. . . testimonial and documentary evidence. ” Be r tram

, 206 A.3d at 84

- 85.

9 W hile the Board is the ultimate finder of fact, it must explain its decision in sufficient detail to permit meaningful review. Peak v. Unemployment Comp. Bd. of Review , 501 A.2d 1383 (Pa. 1985).12 C laimant argues that, in Bertram

, the UC r eferee did not make any

credibility findings

, and the Board affirmed the r eferee without making any

credibility findings of its own , determi ning

, instead , that by disregarding t he

testimony of a witness, the UC r eferee had actually made an implicit credibility

determination

. Pet’r’s Br. at 13. Claimant argues that, in Bertram , t his Court

rejected th e Board’s argument about an implicit credib ility finding and stated that

silence by the UC r eferee on the credibility of a witness does not imply a credibility

determination , further noting that an implicit credibility determination does not

resolve a conflict between testimony and documentary evidence. Pet’r’s Br. at 13,

( citing Bertram )

.

Claimant maintains that, in the present matter , the UC r eferee did not

make any credibility determinations but that the Board did , relying on an implicit

credibility determination by the r eferee to do so. Claimant states:

I n fact, it wasn’ t that the r eferee indicated in any way that she thought Claimant was not credible, she did not believe she could consider the issue of discharge and willful misconduct and was bound by law to consider only the issue cons idered below.

Pet’r’s Br. at 14.

Claimant asserts that the Board found she

v oluntarily quit for personal reasons, discredited her testimony that she was discharged, and ignored all other evidence including the separation agreement and the fact that [E] mployer did not participate at any phase of th e proceeding and disobeyed the

r eferee’ s order that [ Employer’s witnesses appear at the hearing ]

. The Board has not resolved conflicts in evidence, has not13 explained why it has found [ Claimant’s ] representations to the

s ervice c enter credible but not her testimony under oath, has ignored documentary evidence which supports a finding that [ Claimant ] was fired, and has found

. . . in favor of a party which failed to participate even after being issue d a subpoena and which sent to the r eferee a statement that it did not contest [ Claimant ’ s ] appeal.

Pet’r’s Br. at 16.

In response to Claimant’s assertions, t he Board contends it made

explicit credibility determinations regarding conflicting evidenc e in the record as to

whether Claimant quit or was discharged and that the evidence the Board credited is

substantial competent evidence which supports its determination that Claimant quit

her employment. Resp’t’s Br. at 5. The Board notes that s tatements by parties

reflected on Department 10 records constitute party admissions and are competent to

support a finding of fact. 11 Resp’t’s Br. at 7. The Board further asserts that

Claimant’ s admissions in documents in the record support the finding that Claimant

quit her employment.

To support its contention that Claimant’s admissions support the

Board’s findings, the Board notes that Claimant filed an application for UC benefits

through the internet and indicated she quit for personal reasons, explaining, “ I n eed

10 The term “Department” as used here, and throughout this Opinion and Order, is a
reference to the Pennsylvania Department of Labor & Industry

.

11 The Board references Havrilchak v. U nemployment Comp ensation Board of Review , 133 A.3d 800, n. 3 (Pa. Cmwlth. 2015) (stat ements in submissions like the “claimant questionnaire,”

the “internet claim form,” and the “initial interview form,” constitute party admissions that are
admissible as an exception to the hearsay rule)

, and Sargent v. U nemployment Comp ensation
Board of Review , 630 A.2d 534 ( Pa. Cmwlth. 1993) (the claimant’ s statements reflected on a summary of interview form constitute party admission). Resp’t’s Br. at 7.14

to help care for my mother/ [a] nd help daughter with children” and that Claimant

further stated on the form that she quit because “ [m] y sister needs help caring for my

mother. Also, my daughter needs help with her children as she went back to college.

A s soon as a schedule is worked out I wi ll be able to seek employment.” C.R., Item

No. 2 . The Board asserts that t his evidence is competent and was spe cifically

credited by the Board . The Board further asserts that it credited Claimant’ s p etition

for a pp eal from the Department’ s determination which states : “ Claimant endured a
family emergency which required her attention in another state (NJ). The family

situation requires

. . . Claimant to be away from her employer for extended periods

of time as she mu st care for her ailing mother

. . . .” Resp’t’ s Br. at 8. The Board

maintains that additional evidence that C laimant quit her employment is found in

her January 25, 2019 hand written

, and signed, resignation

, in which she stated : “ I

regretfully need to inform you that I will need to depart working

. . . . There has

been an unforeseen event in my family and am needed to help care for a family

member.” C.R., Item No. 8, Claimant’s Ex

. C2. The Board argue s that a ll of the

above statements constitute admi ssions by Claimant that she quit and are substantial

competent evidence support ing the Board’ s determinati on

. Resp’t’s Br. at 8

- 9.

In addition, t he Board contends it did not capriciously disregard

Claimant’ s testimony she was discharged . Instead, it c onsidered Claimant’ s
testimony to that effect and specifically discredited it. Resp’t’s Br. at 9.

In response to Claimant ’s argument that the Board refused to enforce

the subpoena( s ) which would have given Claimant the opportunity to question

Employer ’s representatives about whether she was discharged

, the Board asserts that15

Claimant did not request it to enforce the subpoena s , thus, it did not refuse to enforce

them

. 12 The Board notes Claimant submitted a brief to the Board but that she did

not mention Employer’ s non

- appearance at the hearing or request enforcement of

the subpoenas

. Resp’t’s Br. at 9, n.1.

In addition, t he Board argues that Claimant ’s reliance on Bertram is

misplaced because that case is distinguishable from the present matter

. The Board

contends that the Court

, in Bertram

, held the Board capriciously disregarded relevant

competent evidence when “ the highly relevant testimony of a disinterested third

party did not elicit a sing le comment from the factfinder.” Bertram

, 206 A.3d at 84

.
The Board adds that the Court , in Bertram

, also held that the implicit credibility

determinations the Board argued it made through its findings of fact did not resolve

the conflicts between the testimonial and documentary evidence in th e case. Id. at

84

- 85

. The Board argues, here

, that its o rder allows for meaningful appellate review

12 Section 101.34 of the Board’s regulations , 34 Pa. Code § 1 01.34

, states in pertinent part :

(a) When a person refuses, fails or neglects to comply with a subpoena
issued under the [Law] , or refuses, fails or neglects to produce books, papers, correspondence, memoranda or other records and documents, a party to the appeal proceedings may request the B oard to petition a Court of Common Pleas having jurisdiction to require the person subpoenaed to appear and give testimony and to produce the books, papers, correspondence, memoranda or other records and documents described in the subpoena. (b) The reque st to the Board shall be in writing and shall set forth the facts as to the issuance and service of the subpoena

. . . . The Board will give notice by mail to the person alleged to have refused, failed or neglect ed to comply with the subpoena . . . the

Boa rd may proceed to compel such compliance as provided in this part.

34 Pa. Code §101.34 (emphasis added)

.16

because the r eferee specifically acknowledged the s eparation a greement in her

d ecision and ultimately concluded Claimant quit her employment. The Board adds

that

, u nlike in Bertram

, the Board ack nowledged Claimant’ s argument she had been

terminated and made an explicit credibility determination . Th us , by considering the

s eparation a greement

, and crediting documentary evidenc e that conflicted with

Claimant’ s testimony and the a greement itself, the Board resolved the conflic t in

evidence against Claimant, providing sufficient expla nation of why Claimant’s

benefits were denied and allowing f or meaningful appellate review.

The Board argues that Claimant did not prove she ha d a necessitous and

compelling reason for quitting because she consistently maintained at the hearing

that she did not quit and offered no alternative reason for quitting. In sum, the Board

argues its findings of fact are based on the substantial competen t evidence of record

and support the conclusion that Claimant quit her employment.

B. Analysis

In its opinion, t he Board states “the [r] eferee clearly discredited the

claimant’s testimony and the Board finds no reason to disturb this credibility

determination.” C.R., Item No. 12. T he Board add s that it “specifically discredits

the claimant’s testimony that she was discharged, and credits the claimant’s Petition

for Appeal and Internet Initial Claims for m , where [she] clearly stated she quit and

did not say she was fired

. ” Id

. “ T he [r] eferee permitted the claimant to testify about

discharge, but the [r]e feree did not credit the claimant on this, and neither does the

Board.” Id

.17 Claimant , here, did not raise the issue of discharge prior to her hearing

before the UC referee . In fact , she made a number of assertions about voluntarily

quitting her position, including statements in some of the earliest filed document s in

th e case. We agree with the Board’s position that Claimant’s statements on her

Initial Internet Claims form and other documentation

, in which she stated she was

quitting her job for personal reasons

, constitute a dmissions and are competent to

support a finding of fact that Claimant voluntarily quit her employment . Weighing

these admissions against Claimant’s later contentions that her employment was

terminated, the Board made explicit credibility determinations r egarding the

conflicting evidence

, and t he evidence the Board credited is substantial competent

evidence supporting its determination that Claimant quit her employment. In

addition, and as both the referee and the Board determined, Claimant never satisfied

her burden of establishing that her voluntary quit was due to necessitous and

compelling reasons and that she made a reasonable effort to preserve her position

with Employer.

We acknowledge that the UC referee, as evidenced in the hearing

trans cript, limited her evaluation of Claimant’s case to Section 402(b) of the Law

because she believed she was constrained to do so. To this point, we believe the

referee could have addressed the issue of discharge as Employer was on notice of

the hearing and was on notice that discharge, under Section 402(e) of the Law

, was
a potential issue. 13 See C.R., Item No. 7. However, the Board did not ignore the

13 We note here that, i n Michael v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 998 C.D. 2015, filed March 9, 2016 ) , a case in which the UC r eferee determined that the claimant left work voluntarily

, and, therefore, the case should be reviewed in accordance with Section 402(b) of the Law, and not Section 402(e) of the Law

, 43 P.S. §802(e), this Court18

issue as Claimant asserts. In its opinion, the Board specifically stated that the referee

permitted Claim ant to testify about discharge but that the referee did not credit

Claimant on the matter and neither did the Board. In fact, the Board stated it

specifically discredited Claimant’s testimony that she was discharged and credited

Claimant’s “ Petition for A ppeal and Internet Initial Claims form ” where she “clearly

stated she quit and did not say she was fired.” C.R., Item No. 12.

As for whether Employer’s witnesses should have been compelled to

attend, we disagree with Claimant that the Board should have required same, as

Claimant did not request the Board to petition a c ourt of c ommon p leas having

jurisdiction to require the person subpoenaed to appear and give testimony

, as
required by 34 Pa. Code § 101.34 . Thus, we discern no error by the Board in this

regard.

III. Conclusion

Upon review, we affirm t he Board’s opinion that Claimant was not

un reasonably denied UC benefits under Section 402(b) of the Law

. T he Board’s

findings, including its credibility det erminations, are sufficiently supported by the

record.

T he referee determined, and the Board concurred, that Claimant did not

provide testimony regarding quitting her employment and did not establish a

stated that “ [t] he hea ring notice indicated Section 402(b) was another issue that could be considered at the referee hearing,” (emphasis added)

, and the matter was ultimately decided under Section 402(b) of the Law. Id . at n.9.19

necessitous and compelling reason for leaving employment and making a good faith

effort to preserve that employment. Claimant’s appeal is an attack on the Board’s

findings and credibility determinations. However, we reiterate here that “ [i] t is well

settled that the Board is the ultimate finder of f act in unemployment compensation

proceedings.” Chapman v. Unemployment Comp. Bd. of Review , 20 A.3d 603, 607

(Pa. Cmwlth. 2011). “[I]ssues of credibility are for the Board which may either

accept or reject a witness’ testimony whether or not it is corrobo rated by other

evidence of record.” Id

. These credibility determinations are not questioned on

appellate review. Serrano

, 149 A.3d 435.

As the Board is the ultimate finder of fact, the Board’s opinion was

based on the substantial competent evidence o f record, and there was no error of law

or abuse of discretion, there is no basis for us to disturb the outcome in the present

matter

. Thus, the opinion of the Board is affirmed.

______________________________ J. ANDREW CROMPTON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan M. Hartman, : Petitioner :

:

v. : No. 985 C.D. 2019

: Unemployment Compensation Board : of Review, : Respondent :

O R D E R

AND NOW

, this 14 th day of August 2020, the order of the

Unemployment Compensation Board of Review is AFFIRM ED

.

______________________________ J. ANDREW CROMPTON, Judge