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Rita Spence v. Unemployment Compensation Board of Review

September 23, 2011

RITA SPENCE, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Robert Simpson, Judge

Submitted: August 5, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY JUDGE SIMPSON

Rita Spence (Claimant), a former employee of Verizon (Employer) who accepted a voluntary termination incentive plan offer, petitions for review from the Unemployment Compensation Board of Review's (Board) denial of benefits. Claimant asserts the Board erred when it found her ineligible for unemployment benefits under Section 402(b) of the Unemployment Compensation Law (Law)*fn1 (voluntary quit) because its order contained a fact wholly inapplicable to her case. We agree with Claimant that the erroneous finding in the Board's order calls into question whether the Board's decision pertained to Claimant. Therefore, we vacate and remand.

Claimant separated from her Employer after accepting an Enhanced Income Security Plan and One-Time Enhanced Incentive Offer (Incentive Package) that set forth financial payments to encourage voluntary termination.

Claimant applied for unemployment compensation (UC) benefits. In her questionnaire, Claimant stated Employer told employees the office would close and it would not guarantee her position. Claimant's office closed after her separation. The UC Service Center determined she voluntarily quit and denied her application.

Claimant appealed to a referee, asserting her office closed, and she did not think she would be transferred. She also complained of disparate treatment because others in the same situation received UC benefits. The referee held a hearing at which Claimant and an Employer witness testified. Claimant did not have counsel represent her at the hearing. The referee found Claimant did not face imminent and involuntary separation and did not find a necessitous and compelling reason for her leaving.

Claimant appealed to the Board, arguing that she had good cause to accept the Incentive Package and that she should have been treated as others similarly situated. The Board affirmed the Referee's decision and set forth 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]. The Board specifically finds the claimant incredible that the father of her two young children could not watch the children while the claimant worked. Therefore, the Board adopts and incorporates the Referee's findings and conclusions ..

Bd. Op., 12/28/10 (emphasis added).

Claimant filed a Petition for Review (PFR) to this Court.*fn2 In her PFR and her brief, Claimant objects to the Board's Order because it includes language "wholly unrelated to the appeal at issue."*fn3 PFR, ¶5; see generally Petitioner's Br. at 7-9.

It is well-settled that, in unemployment cases, the Board is the ultimate fact-finder, empowered to determine the credibility of witnesses and resolve conflicts in evidence. Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938 (Pa. Cmwlth. 2000). The Board is thus empowered to add to or modify any referee's decision. Section 504 of the Law, 43 P.S. §824; Unemployment Comp. Bd. of Review v. Leonhart, 353 A.2d 925 (Pa. Cmwlth.1976).

In this case, the Board elected to make a specific finding of fact in addition to the referee's findings. The Board's finding, however, ...


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