SUBMITTED: March 31, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,
HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN
PELLEGRINI, Senior Judge.
K. HEARTHWAY, JUDGE
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),
because his unemployment was due to voluntarily leaving work
without cause of a necessitous and compelling nature. We
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 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
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
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.)
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. 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
part-time, 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.
now petitions this Court for review of the Board's order,
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
Innovations, Inc. v. Unemployment Compensation Board of
Review, 38 A.3d 1051 (Pa. Cmwlth. 2012) as support for
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. 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. See Gibson v.
Unemployment Compensation Board of Review, 760 A.2d 492
(Pa. Cmwlth. 2000).
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. Whether a claimant had necessitous and
compelling cause to terminate his employment is a question of
law fully 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).
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. 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.
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.
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
Brennan, where the work becomes unexpectedly
available. Moreover, contrary to Claimant's assertion,
our holding in S ...