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Morgan v. Unemployment Comp. Bd. of Review

Commonwealth Court of Pennsylvania

January 14, 2015

Brian K. Morgan, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted October 8, 2014

Page 182

Appealed from No. B-556078. State Agency: Unemployment Compensation Board of Review.

Martin J. Clancy, Pittsburgh, for petitioner.

Jacqueline Wolfgang, Harrisburg, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 183

COHN JUBELIRER, JUDGE

Brian K. Morgan (Claimant) petitions for review of the September 20, 2013, Order of the Unemployment Compensation (UC) Board of Review (Board) denying Claimant UC benefits pursuant to Section 402(b) of the UC Law (Law).[1] On appeal, Claimant argues that the Board's denial was improper because: (1) two of the Board's findings are not supported by substantial evidence; and (2) Coal Innovations, LLC's (Employer) decision to stop paying for commuting expenses was a substantial and unilateral change in the terms of Claimant's employment that constituted a necessitous and compelling reason to resign. Discerning no error, we affirm.

Following Claimant's resignation from Employer, Claimant filed a claim for UC benefits with the UC Service Center. The UC Service Center denied Claimant UC benefits, finding that Claimant failed to meet his burden of proof under Section 402(b) of the Law. (Notice of Determination, R. Item 7.) Claimant appealed to the UC Referee. After an evidentiary hearing, at which Claimant and Employer, with two witnesses, appeared and testified, the UC Referee also determined that Claimant

Page 184

was ineligible for UC benefits because he failed to satisfy his burden of proof under Section 402(b) of the Law. Claimant appealed the UC Referee's decision to the Board.

Upon review, the Board made the following findings of facts:

1. The claimant was last employed as a foreman by [Employer] from October 18, 2010, at a final rate of $22 per hour, and his last day of work was March 28, 2013.
2. When the claimant first began working for the employer, the claimant commuted to and from work with the employer's director of processing (Director).
3. In approximately July of 2011, the claimant began using the employer's vehicle, gas, and EZ pass to travel to and from the workplace.
4. In approximately September of 2012, [Employer] was purchased by another company.
5. On March 28, 2013, the employer informed the claimant that he was no longer permitted to use the employer's vehicle, gas, and EZ pass to travel to and from work.
6. In response to the employer, the claimant said he was quitting his employment.
7. The employer suggested that the claimant reconsider his decision to resign and informed him that he could commute with the employer's [Director].
8. The claimant personally owns two vehicles.
9. The claimant quit his employment because he did not have affordable transportation to the employer's workplace.

(Board Decision, Findings of Fact (FOF) ¶ ¶ 1-9.)

Based on its findings, the Board concluded that:

Here, the employer credibly testified that immediately after it informed the claimant that he would no longer be permitted to use the employer's company vehicle, gas, and EZ pass to travel to and from the employer's workplace, the claimant quit his employment. Prior to quitting the claimant did not search for or investigate other means of transportation. The employer also credibly testified that it informed the claimant he could commute with the employer's [Director], which he had done in the past. Nevertheless, the claimant did not accept the employer's offer of transportation and did not attempt to preserve his employment. Additionally, the claimant presented insufficient credible ...

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