Friday, April 13, 2012

UC - vol. quit, childcare; overpayment - non-fault

Favero v. UCBR - Cmwlth. Court - unpublished memorandum opinion





VQ - Child care - In Truitt v. UCBR, 509 Pa. 628, 589 A.2d 208 (1991), our Supreme Court addressed the issue of child care as a necessitous and compelling reason to quit. In Truitt, the claimant quit her job working a late night shift after making inquiries of her sisters, former babysitters, and a daycare center in an effort to find replacement care for her two children, who had been previously cared for by her then-ailing mother. The Supreme Court, in granting benefits, held that in light of all of claimant’s efforts, "[t]here is nothing more that we can or should ask of an employee before that employee terminates his or her employment." Truitt, 527 Pa. at 143, 589 A.2d at 210.


This Court determined, in Shaffer v. UCBR, 928 A.2d 391 (Pa. Cmwlth. 2007), that a claimant’s child care issues did not constitute a necessitous and compelling reason to terminate her employment where the Board found that although she investigated one daycare facility, which proved not to be cost effective, she failed to present evidence regarding additional efforts made to address the child care problems after her employer relocated, "such as securing alternative childcare for her daughter with other daycare facilities...or having her son enroll in an after school activity or stay with a relative or neighbor before or after school." Id. In Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we noted that this Court has consistently required that claimants prove that they explored alternative child care arrangements before terminating employment in order to care for small children, and claimants must establish that they exhausted all other alternative child care arrangements, such as a concerted effort to find another babysitter or find a suitable daycare center. Id. at 71-72.


We find, sub judice, that substantial evidence exists to support the Board’s finding that once her child started public school, Claimant wanted to be available to put her child on the school bus, and meet her child at the bus stop after school, and therefore did not want to put her child in wrap around daycare.7 Here, the Referee questioned Claimant about relatives who might be available to help her, but failed to inquire about babysitters, neighbors, or daycare services that might be available. Indeed, the Referee characterized Claimant’s testimony as to why she left her employment as "her need to take her daughter to the bus stop in the morning and pick her up again in the afternoon." There is simply no evidence that Claimant exhausted alternative child care arrangements, or made any effort at all to explore other possibilities besides securing the services of a family member.


Conversely, Employer asserted, in its appeal from the Referee’s decision, that at least three viable daycare options existed, and Claimant’s child had previously been in daycare. We find that the Board did not err in concluding that Claimant made a decision that once her child started public school, she would undertake to care for the child before and after school, and properly found that Claimant left work without cause of a necessitous and compelling nature.


Overpayment - non-fault - We have stated that the word "fault" within the meaning of Section 804(a) of the Law connotes "an act to which blame, censure, impropriety, shortcoming or culpability attaches...." Greenawalt v. UCBR, 543 A.2d 209, 211 (Pa. Cmwlth. 1988) (quoting Cruz v. UCBR, 531 A.2d 1178, 1180 (Pa. Cmwlth. 1987). Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment. Greenawalt.



Our review of the record finds no basis for concluding that Claimant’s statements were knowingly or intentionally misleading, and no other evidence supporting the Board’s finding of a fault overpayment. At every opportunity, Claimant explained her reason for claiming "lack of work" on her online application, and clearly stated that she had voluntarily resigned her full-time position after Employer failed to offer part-time employment.


Accordingly, we affirm the Board’s decision as to the denial of benefits, but we reverse as to the finding of fault on the part of Claimant. Benefits paid to Claimant for the weeks following her voluntary quit are a nonfault overpayment subject to recoupment under Section 804(b) of the Law, 43 P.S. §874(b)(1)


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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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