Procito v. Unemployment Compensation Board of Review

945 A.2d 261, 2008 Pa. Commw. LEXIS 125, 2007 WL 5004925

• Court: Commonwealth Court of Pennsylvania
• Decided: March 17, 2008
• Docket: 2402 C.D. 2006
• Status: Published

Opinions

OPINION BY

Judge SMITH-RIBNER.

Joan Procito petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a Referee to deny Procito’s request for benefits under Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that a claimant is ineligible for benefits for any week in which his or her unemployment is due to voluntarily leaving work without a necessitous and compelling cause. Procito questions whether the Board erred in its construction of Section 402(b) as categorically excluding same-sex families; whether its construction violated the Equal Protection and Due Process Clauses of the Pennsylvania Constitution; and whether Procito was entitled to benefits if proper legal standards were applied. She additionally, or alternatively, questions whether the Board erred by failing to remand for further proceedings under 34 Pa.Code § 101.104(c).

I

After a hearing at which Procito and her domestic partner participated by telephone from Florida, the Referee issued a decision finding that Procito worked as a full-time financial manager and that she voluntarily resigned her job to follow her domestic partner to Florida because Procito was not financially able to maintain two separate households in two states. Her domestic partner moved to Florida to be near her son, who has a learning disability, and to seek a less stressful environment. The Referee stated that in order to receive benefits under the Law an individual must be legally married and that a domestic partner is not recognized within the definition of Section 402(b) of the Law. The Referee ruled that Procito had not proved that her voluntary separation was due to a necessitous and compelling cause. On review, the Board concluded that the Referee’s decision was proper under the Law, adopted and incorporated his findings and conclusions, denied Procito’s request for a remand and determined that she left her employment for personal reasons that were not necessitous and compelling under the Law.¹

Procito first argues that the Referee and the Board articulated only one reason for denying benefits, i.e., that Procito was not married to her life partner. Under Sections 1102, as amended, and 1704 of the Marriage Law, 28 Pa.C.S. §§ 1102 and 1704, however, same-sex couples are categorically prohibited from marrying or from having a marriage performed elsewhere recognized as valid in Pennsylvania. She notes, nonetheless, that the courts have recognized a need to make individualized determinations as to whether claimants had a necessitous and compelling cause for leaving their employment, citing cases including Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa.Cmwlth.2000) (approving benefits where father left his job in the South to move to Pennsylvania to provide needed emotional support to his troubled eleven-year-old son).

Procito maintains that the Board failed to make an individualized determination by holding that she was categorically prohibited from qualifying for benefits by virtue of her unmarried status. In addition, the Board appeared to apply precedent holding that unmarried heterosexual couples did not qualify for compensation under Section 402(b) of the Law to the context of unmarried same-sex couples. She refers to Nimitz v. Unemployment Compensation Board of Review, 699 A.2d 822 (Pa.Cmwlth.1997) (refusing to apply the “following the spouse” doctrine because there was no marriage, where a woman and child left to join a roommate or paramour who was transferred), and to Kurtz v. Unemployment Compensation Board of Review, 101 Pa.Cmwlth. 299, 516 A.2d 410 (1986) (refusing to apply the doctrine where there was no “family unit” because a woman left her job shortly before her marriage and, in any event, made no showing that circumstances required making a home elsewhere). Procito submits that the assumption that no family unit exists in the absence of marriage is simply erroneous in the context of same-sex couples, who may have true “family units” with all proper indicia.²

Extending Nimitz and Kurtz to same-sex families would violate the Equal Protection Clauses of the Pennsylvania Constitution, Article I, Sections 1 (“All men are born equally free and independent _”) and 26 (“Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”). A facially discriminatory action such as the exclusion of unemployment benefits for same-sex families must be at least rationally related to some legitimate governmental purpose. See Kelley v. State Employees’ Retirement Board, 593 Pa. 487, 932 A.2d 61 (2007), cert. denied, — U.S. —, 128 S.Ct. 1260, 170 L.Ed.2d 69 (2008). The policy of the Law is to provide benefits to employees whose job is terminated through no fault of their own. See Section 3 of the Law, 43 P.S. § 752; Savage Unemployment Compensation Case, 401 Pa. 501, 165 A.2d 374 (1960). Moreover, Pennsylvania’s public policy does not favor the general non-recognition of same-sex relationships. See Devlin v. City of Philadelphia, 580 Pa. 564, 862 A.2d (2004) (upholding validity of local ordinance requiring certain employers to provide employee benefits to employees’ life partners on the same basis as those offered to employees’ dependents, while emphasizing that life partnership is not the functional equivalent of a “marriage”).³

Procito states that she left her job for a necessitous and compelling cause under the general standard. The Court repeated in Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa.Cmwlth.2001), the general standard to be met for showing necessitous and compelling cause: the claimant must establish that “circumstances existed which produced real and substantial pressure to terminate the claimant’s employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment.” See also Beaehem.

In Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561 (Pa.Cmwlth.1995), the Court stated the standard to show necessitous and compelling cause for leaving employment to follow a spouse: (1) the spouse elected to move for reasons beyond his or her control, and the decision to move was reasonable and made in good faith, and (2) the couple would face an economic hardship in maintaining two residences or the move has resulted in an insurmountable commuting problem. In her petitions for appeal, Procito elaborated that her partner’s son has special needs and that he was starting college in the fall. In Beaehem the Court recognized that providing emotional support for a child may be a compelling reason for a parent to relocate. Also, Procito satisfies the condition of showing economic hardship in maintaining two residences or an insurmountable commuting problem.

In the alternative, Procito argues that the Board should have remanded her case for further factual development. Under 34 Pa.Code § 101.104(c) the Board should remand whenever the appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous or where it appears that there may have been a denial of a fair hearing. A Referee will be found to have denied a fair hearing to an unrepresented party where the Referee failed to “advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of [the tribunal’s] official duties.” 34 Pa.Code § 101.21(a). This includes assisting pro se claimants in developing the facts necessary for a decision. Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829 (Pa.Cmwlth.2003). Procito maintains that the Referee did not assist but in fact obstructed Procito’s efforts by stating that the Referee was “not concerned with” facts Procito was attempting to develop, Notes of Testimony (N.T.) p. 6, and that the Referee “wasn’t going to get into” an issue that Procito was discussing. Id. p. 7. The Referee advised that he was not there to make new law and failed to explore the nature of the relationship.

The Board first argues that it properly ruled that Procito was ineligible for benefits under the following the spouse doctrine because she was not legally married to her domestic partner. In multiple cases since the doctrine was adopted in Bliley Elec. Co. v. Unemployment Compensation Board of Review, 158 Pa.Super. 548, 45 A.2d 898 (1946), the courts have consistently ruled that the doctrine applies only to legally married couples. Most recently this Court restated that proposition in Nimitz, which did not turn on a finding of no “family unit” but rather on a finding of no marriage. The Board states that it properly complied with recent legislative intent as expressed in Section 1704 of the Marriage Law not to take an expansive approach to marriage. It challenges Pro-cito’s characterization of Devlin, arguing that the Supreme Court held that municipalities may confer limited benefits upon same-sex couples that do not begin to reflect the rights and obligations of marriage.

The Board also disputes the argument that it violated equal protection by applying the Nimitz and Kurtz precedent to same-sex couples. In Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corp.), 584 Pa. 309, 888 A.2d 518 (2005), the Supreme Court stated that legislative classifications are permissible if they are reasonable rather than arbitrary and bear a relationship to the object of the legislation. The rational basis test is properly employed in an equal protection analysis of social legislation. Id. As in Bievenour v. Unemployment Compensation Board of Review, 42 Pa.Cmwlth. 616, 401 A.2d 594 (1979), the state has a legitimate interest in protecting the limited assets of the Unemployment Compensation Fund and the prohibition advances that interest as well as furthering administrative convenience and finality. Procito was afforded due process in that she received notice and an opportunity to be heard through established adjudicatory procedures.

With regard to the denial of a remand, the Board notes that although 34 Pa.Code § 101.21(a) requires rendering assistance to an uncounseled claimant, a referee should not become a claimant’s advocate. The Court will reverse a decision to grant or to deny remand only for an abuse of discretion. Fisher v. Unemployment Compensation Board of Review, 696 A.2d 895 (Pa.Cmwlth.1997). The Referee questioned Procito about her reasons for quitting and gave her the opportunity to call and to question her witness. Testimony and proposed testimony about why her partner quit her job was irrelevant. Finally, Procito would not be entitled to benefits even if the following the spouse doctrine were applied because the necessity to relocate must be caused by circumstances beyond the control of the spouse and must not be a matter of personal preference. A personal preference is not necessary or compelling. Hammond v. Unemployment Compensation Board of Review, 131 Pa.Cmwlth. 166, 569 A.2d 1013 (1990) (holding that wife’s move to Oregon was a matter of personal preference, and husband’s leaving work and following to preserve the family was not for necessitous and compelling cause).⁴

II

Several standard principles govern the Court’s disposition of this case. First, the burden of proof is on a claimant who voluntarily terminates employment to prove that the termination was for a necessitous and compelling cause, and whether the claimant has such cause is a question of law subject to review by the Court. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa.Cmwlth.2005). If an employer fails to offer evidence regarding availability of continuing work, for example, the claimant is not automatically granted benefits because the claimant still must establish necessitous and compelling cause. Id. Second, when faced with a case raising constitutional and non-constitutional grounds, a court must decide the matter on non-constitutional grounds and avoid constitutional questions if possible. Dauphin County Social Services for Children and Youth v. Department of Public Welfare, 855 A.2d 159 (Pa.Cmwlth.2004).

Based on the foregoing principles, the Court must reach the question of whether the Board unconstitutionally denied benefits to Procito based upon the absence of a marriage only if, assuming that the following the spouse doctrine applies, Procito otherwise meets its requirements. Moreover, the rule is firmly established that this Court may affirm the tribunal below on different grounds if the Court agrees with the result reached below. See City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 777 A.2d 1206 (Pa.Cmwlth.2001).

Under Glen Mills Schools, Hammond and numerous other cases, in a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference. In this case, as the Referee correctly perceived, the circumstances of Procito’s partner’s separation from her employment are irrelevant. That is the topic as to which the Referee expressed no interest, and his comments did not obstruct presentation of relevant evidence. The case of whether the partner had necessitous and compelling cause to quit is not before the Court, and the mere fact of her separation from employment in Pennsylvania did not constitute reason beyond her control to move to Florida. Once the partner separated from her job, she decided to move to Florida to seek work in a less stressful environment and to be near her son. These admitted facts show that the partner did not originally decide to leave work and move to Florida because the son needed her, and Procito offered no such proof.

Procito testified that the main reason her partner left her job was the ongoing stress, and they then decided to coordinate moving to Florida to a less stressful environment “and as an additional reason” to be closer to the son. N.T. p. 10. The son, however, was an adult starting at a college of his choice. This is not a case such as Beachem where a young son’s behavioral problems had been shown to be improved markedly by his father’s presence. Proci-to’s partner left her job primarily because of ongoing stress, and she and Procito decided to move to a less stressful environment in Florida and to be closer to the partner’s son who was to attend school there. The partner’s decision to relocate to Florida was a matter of personal preference, which would preclude a determination by the Board or this Court that Proci-to had a necessitous and compelling cause to follow. Hammond.

The Court’s review establishes that Pro-cito simply failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause, i. e., that existing circumstances produced real and substantial pressure to quit, that like circumstances would compel a reasonable person to do the same, that she acted with ordinary common sense and that she made a reasonable effort to preserve her job. Brown. As a consequence, and based on this record, the Court need not address any constitutional issues that Procito raised inasmuch as this case certainly can be decided on non-constitutional grounds. Dauphin County Social Services for Children and Youth. The facts are straightforward, and the law is clear. In addition, the Court finds no merit to Procito’s argument that the Board erred in denying a remand when there is no indication in the record that the Board abused its discretion in this regard. Fisher. The Referee allowed Procito to testify and otherwise performed the duties required of the Referee under 34 Pa.Code § 101.21. Under these circumstances, the Court must affirm the order of the Board.

ORDER

AND NOW, this 17th day of March, 2008, the decision of the Unemployment Compensation Board of Review is affirmed.

1 . The Court’s review is to determine whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed and whether necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169 (Pa.Cmwlth.2007). In unemployment compensation proceedings, the Board is the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence and to determine the credibility of witnesses. Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841 (Pa.Cmwlth.2005).

2 . Procito points out that other courts have recognized in comparable contexts that the prohibition on marriage fundamentally distinguishes cases involving unmarried heterosexual and same-sex couples. She cites, among others, Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005) (recognizing this distinction and holding that "spousal limitations” in state and local programs such as employee life and health insurance and death benefits could not survive even minimum scrutiny under Alaska’s Equal Protection Clause and were invalid).

3 . Similarly, Procito argues that extending Nimitz and Kurtz to same-sex families would violate the Due Process Clauses of Article I, Sections 1 and 11 of the Pennsylvania Constitution. She argues that adopting a construction of Section 402(b) of the Law that categorically excludes same-sex couples from being able to establish the “necessitous and compelling” nature of their reasons for leaving employment would create an "irrebuttable presumption,” which would deprive them of the "meaningful opportunity to be heard” guaranteed by Due Process. See Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996) (holding that one-year license suspension based on single epileptic seizure, without opportunity to present evidence of fitness, created irrebuttable presumption in violation of due process rights).

4 . In a reply brief Procito asserts that absence of marriage was the sole reason for the Board’s decision. She states that the text of Section 402(b) of the Law does not mention marital status of a claimant, and Section 1704 of the Marriage Law does not apply because Procito and her partner are not seeking recognition of a marriage. After restating equal protection and due process arguments, she contends that the Board made no alternate holding, when in fact the Board did determine that Procito failed to prove that she quit due to a necessitous and compelling cause. She asserts, as well, that the Court should conclude that any arguments concerning the adequacy of the reasons for Procito’s partner's relocation were waived by virtue of the employer’s failure to raise the issue. She cites Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981) (holding that an employer’s theory of termination for willful misconduct rather than voluntary quit, raised for the first time before the Commonwealth Court, was waived). Procito’s argument lacks merit as it is her burden to prove this point; it is not something that the employer may waive.