Unemployment Compensation : Submitted: October 18, 2013 Board of Review, : : Respondent

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jeffery E. Eakle, Sr., : : Petitioner : : v. : No. 874 C.D. 2013 : Unemployment Compensation : Submitted: October 18, 2013 Board of Review, : : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: December 6, 2013 Jeffrey E. Eakle, Sr. (Claimant), representing himself, petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) that affirmed the Decision of the UC Referee (Referee) finding Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law (Law).1 The Board 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that an employee is ineligible for compensation for any week “[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.” Id. concluded that Claimant did not establish that he had cause of a necessitous and compelling nature for voluntarily quitting his employment. On appeal, Claimant argues that he should not have been denied UC benefits because: (1) his employer, Staffmark, did not appear at the UC Referee’s hearing to prove that his employment was temporary; and (2) continuing in his present job with Staffmark created a greater financial hardship because his wages were less than his weekly UC benefit rate. Unfortunately, although heart-wrenching, we can discern no error by the Board and, accordingly, must affirm. After separation from employment with RM Thornton, Inc. on May 18, 2012, at which he earned $35.00 per hour, and while receiving UC benefits with a weekly benefit amount of $573.00, Claimant accepted an indefinite job assignment through Staffmark as a laborer earning $10.50 per hour. (Referee Decision, Findings of Fact (FOF) ¶¶ 1-2.) Claimant accepted the position through Staffmark, which began on November 12, 2012, (Hr’g Tr. at 6), because he wanted some extra money for the holidays and was having difficulty paying his bills while receiving UC benefits. (FOF ¶ 3.) During the first week with Staffmark, Claimant attended orientation for forty hours and worked 7.5 overtime hours voluntarily on the weekend. (FOF ¶ 5.) Claimant’s gross earnings for this first week with Staffmark totaled $538.13, with a net pay of $368.67. (FOF ¶ 6.) Claimant was scheduled to work at the laborer position the following week. (FOF 8.) On November 19, 2012, Claimant contacted a UC Service Center representative to file his bi-weekly claim for UC benefits and to report his employment/earnings with Staffmark. (FOF ¶ 9.) At that time, Claimant 2 discovered that he was not permitted to file a claim for benefits for any week in which he was employed full-time. (FOF ¶ 10.) As a result, Claimant contacted Staffmark and quit the laborer job because it was affecting his receipt of UC benefits. (FOF ¶ 11.) Claimant then filed a claim for UC benefits in which he listed Staffmark as his last employer. The UC Service Center determined that Claimant quit his new job because his UC benefits were greater than his income working as a laborer through Staffmark. (Notice of Determination, R. Item 5.) The UC Service Center stated that it was Claimant’s burden to show that he exhausted all alternatives prior to voluntarily quitting if there were any and, not having done so, Claimant did not show a necessitous and compelling reason to quit his job. (Notice of Determination, R. Item 5.) Claimant appealed and a hearing was held on March 1, 2013 before the UC Referee at which Claimant appeared and testified. Staffmark did not attend the hearing. Based on Claimant’s testimony, in addition to the facts stated above, the UC Referee found that Claimant “understood the job conditions when he accepted the assignment.” (FOF ¶ 4.) The UC Referee concluded that, despite Claimant’s belief that he could collect partial UC benefits based on full- time work, Claimant’s dissatisfaction with his pay did not constitute a necessitous and compelling reason to quit pursuant to Section 402(b) of the Law because Claimant was aware of the job conditions at the time he accepted employment through Staffmark. (Referee Decision at 2.) Claimant appealed to the Board. In his appeal, Claimant argued that he: (1) believed the job with Staffmark was temporary; (2) accepted the job to fulfill his 3 obligation to seek gainful employment; (3) received $10.50 per hour, or $1,600 per month gross, even though he previously earned $35.00 per hour in the position from which he was separated and had been receiving UC benefits in the amount of approximately $2,000 monthly; and (4) resigned from the job after realizing that he would be in a worse financial position by remaining because his weekly UC benefit rate was higher than his pay with Staffmark. (Petition for Appeal, R. Item 11.) Upon review, the Board adopted and incorporated the Referee’s findings of fact and conclusions of law, and entered an Order affirming the Referee’s Decision. (Board Order at 1.) Claimant now petitions this Court for review.2 Claimant first argues that he should not have been denied UC benefits because his employer, Staffmark, did not appear at the UC Referee’s hearing when doing so would have “cleared up” whether his employment was temporary or permanent.3 (Claimant’s Br. at 6.) Claimant believes that the laborer position was 2 “The Court’s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record.” Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Because the Board is the ultimate fact finder and entitled to make its own determinations as to witness credibility and evidentiary weight, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1388 (1985), this Court will not disturb those findings if they are supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Moreover, the prevailing party below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id. at 343. 3 Staffmark intervened in this matter and has filed a brief in opposition to Claimant’s appeal. The Board has not filed a brief. 4 temporary and, when it ended, he would be entitled to a reinstatement of his UC benefits with his previous employer.4 It is the claimant, not the employer, who has the burden to prove a claimant’s eligibility for UC benefits. Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810, 815 (Pa. Cmwlth. 1996). “In other words, in order to be eligible for unemployment compensation benefits, the claimant bears the burden of proving separation from employment, whether voluntary or involuntary.” Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013). In a case involving a voluntary quit, the claimant has the burden to prove that he had cause of a necessitous and compelling nature for the voluntary quit. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). As the burdened party, a claimant must meet both his burden of production and his burden of persuasion in order to prevail on his claim for UC benefits. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). Thus, Staffmark’s absence at the Referee’s hearing did not affect Claimant’s burden. It was Claimant’s burden, not Staffmark’s burden, to show that he was eligible for UC benefits, including whether the alleged temporary nature of the laborer position had an effect on Claimant’s entitlement to UC benefits. Moreover, 4 Claimant states that he did not file this UC claim against Staffmark; rather, his UC claim was filed against RM Thornton, Inc., his previous employer from whom he was separated and had been receiving UC benefits. (Claimant’s Br. at 6.) 5 even if the Board had found that the position was temporary, Claimant would not have been eligible to receive UC benefits for the week that he was employed through Staffmark in the laborer position. Whether a claimant is eligible for UC benefits during a week in which the claimant is employed does not turn on whether the position is temporary. Instead, eligibility is determined by whether the employment is full-time or part-time. Section 4(u)(II) of the Law provides that a claimant is eligible for UC benefits “with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.”5 43 P.S. § 753 (emphasis 5 The Board’s regulations set forth how a claimant’s full-time work for purposes of Section 4(u) is to be determined: (a) A claimant’s full-time work for purposes of section 4(u) of the law (43 P. S. § 753(u)) shall be determined in accordance with the following: (1) Except as provided in paragraphs (4) and (5), a claimant’s full-time work is determined by reference to the claimant’s base year, as follows: (i) The total number of hours the claimant worked in the base year for all employers is divided by the number of weeks in the base year in which the claimant worked to determine the claimant’s full-time work.

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