IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Ackley, :

Petitioner :

:

v. : No. 1885 C.D. 2016

: SUBMITTED: March 31, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

JUDGE HEARTHWAY FILED: July 13, 2017

William Ackley (Claimant) petitions for review of the November 1, 

2016 order of the Unemployment Compensation Board of Review (Board) which 

reversed the referee’s decision, and thereby denied Claimant unemployment 

compensation (UC) benefits under section 402(b) of the UC Law (Law),

1

because 

his unemployment was due to voluntarily leaving work without cause of a 

necessitous and compelling nature. We affirm.

Claimant was employed full-time by Express Employment 

Professionals (Employer) from May 2, 2016 through May 27, 2016, when he 

terminated his employment. (Board’s Findings of Fact (F.F.) Nos. 1, 3.) On May 

 

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

802(b). 
2

26, 2016, Claimant had accepted an offer of employment from Walmart and began 

working there part-time on June 1, 2016. (Certified Record (C.R.) Item No. 8, 

8/18/16 Notes of Testimony (N.T.) at 2.) Claimant subsequently applied for UC 

benefits, stating that when he accepted the job at Walmart, it was full-time and he 

was told after he was hired that it was part-time. (C.R. Item No. 2, Exhibit 5.) The 

Altoona UC Service Center granted Claimant benefits. 

Employer appealed and a hearing was held before a referee, at which 

Claimant and a witness for Employer testified. The referee then issued a decision 

and order affirming the UC Service Center’s determination. Employer appealed to 

the Board, and the Board remanded the matter to a referee to further develop the 

record to allow the Board to properly rule on the matter. 

At the remand hearing, Claimant stated that when he applied for and 

accepted the job at Walmart, he believed it was full-time. (C.R. Item No. 14, 

10/12/16 N.T. at 1-2.) Claimant testified that it was not until the initial training 

period that he was informed the job would be part-time for a period of time until he 

satisfied requirements. (C.R. Item No. 14, 10/12/16 N.T. at 2.) Claimant also

testified that “[i]t was just assumed on my part, and I believe on theirs that it was 

full-time with a probation.” (C.R. Item No. 14, 10/12/16 N.T. at 2.)

 

After the hearing, the Board issued a decision and order reversing the 

referee’s decision and finding Claimant ineligible for benefits under section 402(b) 

of the Law. The Board found that Claimant voluntarily terminated his full-time 

employment with Employer to begin part-time employment with Walmart. (F.F. 
3

Nos. 1 & 3, Board’s decision at 2.) Although Claimant asserted that the offer from 

Walmart was for full-time employment and only later did he learn that it was parttime, the Board did not find Claimant credible, noting that Claimant also admitted 

that he assumed the employment with Walmart was full-time. (Board’s decision at 

2.) Thus, the Board found that Claimant failed to establish that the offer from 

Walmart was actually for full-time employment. (Board’s decision at 2.) The 

Board further concluded that Claimant’s voluntary termination of full-time 

employment to accept part-time employment did not constitute necessitous and 

compelling cause to terminate employment, and accordingly, the Board denied 

Claimant benefits.

Claimant now petitions this Court for review of the Board’s order,

2

arguing that the Board erred in denying him benefits. Claimant first argues that he 

unknowingly accepted a part-time job. He also argues that he quit his job with 

Employer because he was offered and accepted a new job, and that this alone 

constitutes a “necessitous and compelling reason” precluding the Board and this 

Court from considering the new job’s lower pay and part-time status. In other 

words, Claimant contends that the part-time status of his subsequent job should not 

be considered in determining whether he had a necessitous and compelling reason 

to quit his full-time job with Employer. Claimant cites Brennan v. Unemployment 

Compensation Board of Review, 504 A.2d 432 (Pa. Cmwlth. 1986) and Solar 

 

2 Our scope of review is limited to determining whether constitutional rights were 

violated, whether the adjudication is in accordance with the law, and whether necessary findings 

of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 

Pa. C.S. § 704.
4

Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051 

(Pa. Cmwlth. 2012) as support for this argument. 

Initially, we note that although Claimant argues that he quit his job 

because he believed he accepted a full-time job with Walmart, this is contrary to 

the Board’s findings. The Board did not find Claimant credible with respect to his 

assertion that the offer from Walmart was for full-time employment and only later 

did he learn that it was part-time. Rather, the Board relied on Claimant’s own

testimony and found that Claimant merely assumed the job was full-time.3 The 

Board is the arbiter of credibility and is free to accept or reject the testimony of any 

witness in whole or in part. McCarthy v. Unemployment Compensation Board of 

Review, 829 A.2d 1266 (Pa. Cmwlth. 2003). We are bound by those findings.4 See

Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492 (Pa. 

Cmwlth. 2000).

Thus, we must now determine whether Claimant, who voluntarily 

terminated his full-time employment in order to work part-time employment, had 

necessitous and compelling cause to do so.

5

 Whether a claimant had necessitous 

and compelling cause to terminate his employment is a question of law fully 

 

3

Thus, Claimant’s belief also was not well-founded. Cf. Wright-Swygert v. 

Unemployment Compensation Board of Review, 16 A.3d 1204 (Pa. Cmwlth. 2011) (stating that 

relevant inquiry surrounding voluntary quit when accepting a voluntary early retirement package 

must include whether claimant’s belief that her job is threatened is well-founded).

4 Notably, Claimant does not argue that the Board’s findings are not supported by 

substantial evidence. Instead, he simply presents his version of the facts.

5

It appears this Court has not addressed this question under the specific circumstances 

presented here, although we have addressed analogous situations.
5

reviewable by this Court. Morgan v. Unemployment Compensation Board of 

Review, 108 A.3d 181 (Pa. Cmwlth. 2015). The claimant “has the burden of 

showing such cause, demonstrating that his conduct was consistent with ordinary 

common sense and prudence, being based on real, substantial, and reasonable 

factors, not on factors which are imaginary, trifling or whimsical.” Unemployment 

Compensation Board of Review v. Pennsylvania Power & Light Company, 351 

A.2d 698, 699 (Pa. Cmwlth. 1976). In determining whether a claimant had 

necessitous and compelling cause to terminate employment, we must examine the 

circumstances surrounding each claimant's departure on an individual basis. 

PECO Energy Company v. Unemployment Compensation Board of Review, 682 

A.2d 49, 55 (Pa. Cmwlth. 1996). 

As Claimant argues, Brennan does stand for the principle that 

acceptance of a firm offer of employment can be necessitous and compelling cause 

to terminate employment.

6

 Additionally, we acknowledge that in Brennan, this 

Court stated that “[o]nce the referee determined that a valid offer had been made 

and accepted he erred in going further and considering Claimant's reasons for 

accepting the other job and in considering the conditions of the employment ....” 

Brennan, 504 A.2d at 433. However, Brennan is distinguishable, and Claimant’s 

reliance on Brennan is misplaced. 

 

6 A firm offer of employment includes terms and conditions of employment, including

wages and hours. Baron v. Unemployment Compensation Board of Review, 384 A.2d 271 (Pa. 

Cmwlth. 1978).
6

In Brennan, the claimant was employed full-time in eastern 

Pennsylvania and, after purchasing a home with her husband in western 

Pennsylvania, she applied for and was offered part-time employment in western 

Pennsylvania. After terminating her full-time employment but prior to 

commencing work with the new employer, the new employer informed her that the 

new job was no longer available. The claimant applied for unemployment 

benefits, and the referee denied benefits under section 402(b) of the Law because 

the new position paid less and was part-time. The Board summarily affirmed. On 

appeal to this Court, we reversed and found the claimant eligible for benefits. We 

stated that the claimant had necessitous and compelling reasons for quitting 

because “[c]ertainly Claimant could not perform the two jobs at two ends of the 

state simultaneously.” Id. at 433. Significantly, the new employment 

unexpectedly became unavailable before the claimant actually started the job. 

Thus, the unavailability of the new position was through no fault of the claimant. 

Notably, in cases where the claimant terminated employment and 

actually commenced employment elsewhere, this Court has considered the 

conditions of that other employment, as well as the claimant’s reasons for 

accepting other employment. For example, in Solar Innovations, we held that the 

claimant did not have cause of a necessitous and compelling nature to terminate 

employment where he quit full-time non-temporary employment to accept a 

temporary job. Solar Innovations, 38 A.3d at 1058. We determined that the 

claimant’s actions were imprudent and that the ultimate unavailability of work for 

the claimant was the result of his personal choice. We also stated that the offer and 

acceptance of known temporary work was different from situations such as 
7

Brennan, where the work becomes unexpectedly available. Moreover, contrary to 

Claimant’s assertion, our holding in Solar Innovations was not that the Board 

should consider only the reason for the quit. Rather, when we made that statement, 

we were simply summarizing the Board’s position, which we rejected under the 

circumstances of that case. 

Similarly, in Empire Intimates v. Unemployment Compensation Board 

of Review, 655 A.2d 662 (Pa. Cmwlth. 1995), we concluded that a claimant did not 

establish cause of a necessitous and compelling nature to terminate her full-time 

employment where she was working two available jobs currently and terminated 

the full-time job in favor of the part-time job. Again, we distinguished Brennan

because Empire Intimates did not involve a situation where the accepted job 

ultimately was unexpectedly unavailable. In deciding the question presented, we 

considered—

whether a claimant voluntarily left job number one with a 

reasonable expectation of maintaining a source of income 

from employment at job number two. Where that 

expectation falls short through no fault of her own, i.e., 

the job becomes unavailable, the courts have held that the 

claimant had good cause for quitting job number one, 

thus entitling the claimant to benefits.

 

Empire Intimates, 655 A.2d at 664. However, we stated that under the 

circumstances, where the claimant was working two available jobs and chose one 

over the other, “her assessment of the benefits and disadvantages of each job is still 

relevant,” as there was “no unknown external factor suddenly limiting her source 

of income.” Id. at 664-65. We concluded that the claimant’s reduction in income 

was derived solely from a personal decision to accept an alternatively available 
8

job, which was not necessitous and compelling cause. In other words, because it 

was a personal choice, she was not unemployed through no fault of her own, and 

therefore, was not eligible for benefits.

We are mindful that “[t]he legislature has declared that unemployment 

reserves are ‘to be used for the benefit of persons unemployed through no fault of 

their own.’” Id. at 665 (quoting Section 3 of the Law, Act of December 5, 1936, 

Second Ex. Sess., P.L. (1937) 2897, 43 P.S. § 752.) Thus, where one leaves 

employment for other employment that is available and yet the claimant still seeks 

benefits, we must necessarily examine the reasons for accepting the other job and 

consider the conditions of that other employment to determine if the claimant is 

unemployed through no fault of his or her own. 

Here, Claimant accepted a part-time position by choice and 

commenced that employment. There was no external factor that subsequently 

unexpectedly limited Claimant’s source of income. Moreover, quitting a full-time 

job in exchange for a part-time job that Claimant assumed was full-time is not 

consistent with common sense and prudence. Cf. Solar Innovations (concluding 

that the claimant’s actions were imprudent where he quit his regular, nontemporary job in exchange for a temporary job of fixed duration). Claimant simply 

is not “unemployed” through no fault of his own. Thus, Claimant did not satisfy 

his burden to establish that he had cause of a necessitous and compelling nature to 

voluntarily terminate his employment with Employer. 
9

Accordingly, we affirm the Board’s order finding Claimant ineligible 

for benefits under section 402(b) of the Law.

__________________________________

JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Ackley, :

Petitioner :

:

v. : No. 1885 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 13th day of July, 2017, the order of the 

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

hereby affirmed.

__________________________________

JULIA K. HEARTHWAY, Judge