Gosner, Sr. v. UCBR – June 30, 2020 – reported opinion
Claimant a) did not voluntarily quit his job, nor b) was he at fault where
-he was arrested in 2-18 and incarcerated until 11-18
-his criminal case was non prossed
-he attempted to return to work upon his release
-everyone at his job had been laid off in the interim because of loss of a contract
From the opinion:
There was no substantial evidence to support finding that claimant voluntarily quit his job
Claimant intended to return to work upon his release from prison. He did not voluntarily quit his employment. “When an employee is absent from work without permission, such absenteeism may constitute just cause for his dismissal, but it does not constitute ‘voluntarily leaving work’ under Section 402(b)[] of the Law.” Hutt v. UCBR 367 A.2d 390, 391 (Pa. Cmwlth. 1976).
The phrase ‘voluntarily leaving work’ in Section 402(b)[] [of the Law] means that ‘he left of his own motion; he was not discharged. It is the opposite of a discharge, dismissal or layoff by the employer or other [a]ction by the employer severing relations with [its] employees . . . .’ Dept. of Labor & Industry v. UCBR, . . . 3 A.2d 211, 213 ([Pa. Super.] 1938). . . . Hutt, 367 A.2d at 391.
Case law has established ‘a finding of voluntary termination is essentially precluded unless the claimant had a conscious intention to leave his employment.’ . . . Roberts v. UCBR, . . . 432 A.2d 646[, 648] ([Pa. Cmwlth.] 1981). Leaving the premises is not enough to determine intent to voluntarily terminate employment. However, where an employee without any action of the employer resigns, leaves or quits employment that action amounts to a voluntary leaving. In all cases the totality of the circumstances surrounding the incident must be considered when determining the intent to quit. Monaco v. UCBR, 565 A.2d 127, 129 (Pa. 1989) (emphasis added; citations omitted).
Here, Employer did not appear at the hearing, there was no evidence to counter claimant’s testimony that he had no intention of leaving work. Moreover, contrary to the Supreme Court’s directive in Monaco, the UCBR made no finding that Claimant had a conscious intention to leave his employment. Consequently, there is no record evidence to support the UCBR’s conclusion that Claimant voluntarily left his employment.
There was no evidence of “fault” on claimant’s part - A nolle pros of the criminal case negated “fault” on part of claimant – Citing Gonzalez v. UCBR, 510 A.2d 864 (Pa. Cmwlth. 1986), the court noted that while a claimant may not qualify where his unavailability is due to incarceration through his own fault, Smith v. UCBR, . . . 370 A.2d 822 ([Pa. Cmwlth.] 1977), a nolle pros negates such a finding, since it “is a favorable outcome” and thus negates any finding of fault under sec. 3 of the UC Law.
