             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeannette M. Holman,                          :
                             Petitioner       :
                                              :
              v.                              :    No. 890 C.D. 2015
                                              :    Submitted: November 20, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: March 2, 2016



              Petitioner Jeannette M. Holman (Claimant), acting pro se, petitions
for review of an order of the Unemployment Compensation Board of Review
(Board).    The Board affirmed a decision of an unemployment compensation
referee (Referee), denying Claimant unemployment compensation benefits
pursuant to Section 402(b) of the Unemployment Compensation Law (Law),2

       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature. Whether a claimant had cause of a
necessitous and compelling nature for leaving work is a question of law subject to this Court’s
(Footnote continued on next page…)
because Claimant voluntarily quit her employment without cause of a necessitous
and compelling nature. For the reasons set forth below, we affirm the Board’s
order.
              Claimant filed for unemployment compensation benefits after she
ceased employment with Metro Auto Sales—Philadelphia (Employer).                       The
Lancaster UC Service Center (Service Center) issued a determination finding
Claimant eligible for benefits. (Certified Record (C.R.), Item No. 4) The Service
Center, having received no information from Employer, found that Claimant was
discharged from employment for refusing to move to a sales position. Employer
appealed the Service Center’s determination, and the matter was assigned to the
Referee.
              The Referee conducted an evidentiary hearing on May 8, 2014, at
which Claimant did not appear.          During the hearing, Employer presented the
testimony of Joanne Klotz, Employer’s Controller, and Oleg Shtutman, Director of
Operations.
              Ms. Klotz testified that Claimant began working for Employer on
August 13, 2012, as a salesperson and was later moved to the parts department.
(C.R., Item No. 9 at 3.) She remained in the parts department until March 2014.




(continued…)

review. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985).
A claimant who voluntarily quits his employment bears the burden of proving that necessitous
and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of
Review, 714 A.2d 1126 (Pa. Cmwlth. 1998), 794 A.2d 364 (Pa. 1999).




                                             2
(Id.) Ms. Klotz initially testified that her rate of pay was $7.25 per hour, but she
subsequently testified that it was $11.00 per hour. (Id.)
             Mr. Shtutman testified that he decided to take the parts department in
a different direction and offered her a job in sales. (Id. at 4.) He told her that they
would keep her pay the same and her hours would be similar. (Id.) During that
discussion, she told him that she had some sort of medical condition and could not
stand for long periods of time.       (Id.)       He told her to bring in the medical
documentation, and they would honor it. (Id.)           Mr. Shtutman also testified that
when working in the parts department, one stands all the time and there is no
sitting. (Id.) He offered to accommodate her if she needed accommodation in the
sales position. (Id. at 5.) Mr. Shtutman initially testified that Claimant went to
work in the sales department sometime in March, but she left on April 1 and did
not come back or communicate with Employer. (Id. at 6.) Mr. Shtutman testified
that continuing work was available to her.            (Id.)   He further explained that
Claimant told him that she had a doctor’s appointment on Saturday, but that she
would be in by noon. (Id.) She never showed up for work on Saturday. (Id. at 7.)
She came into work the following Monday, which was March 31, with a doctor’s
note saying that she could return to work on Saturday. (Id.) He clarified that she
left work at 5:00 on March 31 (not April 1) and did not return to work on April 1.
(Id.)
             Following the hearing, the Referee issued a decision, which reversed
the Service Center’s determination, thereby denying Claimant unemployment
compensation benefits.     (C.R., Item No. 10.)          The Referee determined that




                                              3
Claimant was ineligible for benefits under Section 402(e) of the Law,3 relating to
willful misconduct.4 Claimant appealed to the Board, which remanded the matter
to the Referee for another hearing to receive evidence and testimony regarding
Claimant’s failure to appear at the earlier hearing and the merits of her claim. The
Referee scheduled a second hearing.
               Only Ms. Klotz appeared at the second hearing, as Claimant again
failed to appear. The Referee received additional testimony from Ms. Klotz in
response to a question from the Board as to whether Claimant was demoted. Ms.
Klotz testified that Claimant was not demoted. (C.R., Item No. 15 at 2.) She
explained that Claimant was going to receive the same salary and have an
opportunity to make commissions. (Id.) The change was made because the parts
department was losing money. (Id.) She described the change as more like a
promotion. (Id.)
               Following the second hearing, the Board issued a decision and order,
affirming the Referee’s decision with modification. The Board concluded that
Claimant was ineligible for benefits under Section 402(b) of the Law, because she


       3
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e). Section 402(e) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to “willful misconduct
in connection with his work.”
       4
         The Referee found that Claimant quit her job, and he stated that, “[n]ormally, this would
require the Referee to decide the case under Section 402(b)” of the Law, relating to voluntary
resignation, which places the initial burden of proof on a claimant. (C.R., Item No. 10 at 1.)
Because Claimant did not appear at the hearing, the Referee determined that “[i]t would be
inappropriate for the Referee to rule under Section 402(b) because that would place the initial
burden of proof on a party who was not present at the hearing.” (Id.) The Referee, therefore,
analyzed the matter under Section 402(e) of the Law, relating to willful misconduct, and
concluded that Claimant engaged in willful misconduct by failing to show up for work.



                                                4
had voluntarily quit her employment without cause of a necessitous and
compelling nature. In so doing, the Board made the following findings of fact:
            1.     The claimant was last employed as a full-time
                   sales person with Metro Autosales from
                   August 13, 2012 through March 31, 2014 at a final
                   rate of pay of $11.00 an hour.
            2.     The claimant was originally in the sales
                   department, was moved to the parts department
                   and was returning to the sales department.
            3.     The claimant’s pay was changed from $11.00 an
                   hour to $7.25 an hour plus commission.
            4.     The employer believed that the claimant would
                   make more money in sales.
            5.     The employer told the claimant that if she did not
                   want to work in sales, work was no longer
                   available to the claimant.
            6.     The claimant was scheduled to work on April 1,
                   2014, in sales, and failed to show up for work on
                   that day and thereafter.
            7.     The claimant severed all contact with the employer
                   after March 31.
            8.     The claimant abandoned her employment in sales.
            9.     Continuing work was available to the claimant in
                   sales.
            10.    The claimant did not give the company medical
                   notes indicating that she could not work in sales.

(C.R., Item No. 13.). The Board noted that Section 402(b) of the Law provides
that a claimant shall be ineligible for compensation for any week in which
unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature. The Board reasoned that because Claimant voluntarily left
her employment, the burden rested upon her to show cause of a necessitous and
compelling nature for so doing, which she did not do. The Board also noted that


                                        5
Claimant’s job in the sales department was suitable work. Claimant petitioned this
Court for review of the Board’s order.
              On appeal,5 Claimant argues that substantial evidence of record does
not exist to support the Board’s findings of fact. She also argues that the Board
erred in concluding that she did not have necessitous and compelling reasons for
quitting her job.
              With regard to Claimant’s argument that substantial evidence does not
exist to support the Board’s findings of fact, Claimant appears to focus on findings
of fact numbers 1, 2, and 3, to the extent that those findings state her rate of pay as
$11.00 per hour and fail to acknowledge that she worked in the service department
after she worked in the parts department for a short period of time immediately
prior to Employer transferring her to the sales department. Claimant contends that
her rate of pay was only $9.00 per hour. In support of her argument, she sets forth
a narrative of her version of the circumstances that led to her separation from
employment with Employer.
              Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in the light most favorable to the prevailing party, giving that party the

       5
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704. Review for capricious disregard of material evidence is an appropriate component for
appellate review in every case in which such question is properly brought before the court. Leon
E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478 (Pa. 2002).



                                               6
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The
Board’s findings of fact are conclusive on appeal only so long as the record, taken
as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984).
               The facts set forth in Claimant’s narrative, however, are not part of the
record in this matter. As noted above, our review is limited to whether substantial
evidence of record exists. Thus, our review is limited to the evidence presented by
Employer during the hearing, and we may not consider Claimant’s narrative
asserting different facts. Employer’s testimony, summarized above, which the
Board found to be credible, constitutes substantial evidence of record to support its
findings of fact.6
               With regard to Claimant’s argument that the Board erred in
concluding that she did not have necessitous and compelling reasons for quitting
her employment, Claimant argues that, based upon her version of the facts, she had
“good cause and an unreasonable employer.” (Petitioner’s br. at 9.) She maintains
that she was subject to disrespect and verbal abuse and that she initially left work


       6
           We acknowledge that Employer’s testimony regarding Claimant’s wages was
confusing, and the Board’s findings may not accurately reflect Employer’s testimony as to her
rate of pay. Regardless, whether Claimant was being paid $11.00 per hour or $7.25 per hour
plus commissions is irrelevant to the Board’s analysis. Because that particular finding of fact
was not material to the Board’s analysis, any error that may be contained in that finding is not a
ground for reversal. Moreover, no evidence of record exists to support Claimant’s contention
that her rate of pay was $9.00.



                                                7
as a salesperson because the hours and conditions affected a medical condition
(i.e., herniated discs) that she had. She claims to have provided a doctor’s note at
some point in time regarding her condition. She claims that she did not abandon
her job; rather, she removed herself “from a [h]ostile, [d]isrespectful, and
[d]emeaning place.” (Petitioner’s br. at 11.)
               Generally, when a claimant voluntarily leaves work, the claimant
bears the burden to establish that she left work for cause of a necessitous and
compelling nature in order to be entitled to benefits.7 Wasko v. Unemployment
Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Intolerable working
conditions may constitute necessitous and compelling reasons to terminate
employment.8 First Fed. Savings Bank v. Unemployment Comp. Bd. of Review,
953 A.2d 811 (Pa. Cmwlth. 2008). Similarly, an employee’s medical condition or
health reason may create cause of a necessitous and compelling nature to terminate
(or leave) employment voluntarily.9 Deiss v. Unemployment Comp. Bd. of Review,
381 A.2d 132 (Pa. 1977).

       7
          In order to establish cause of a necessitous and compelling nature, a claimant must
establish that: (1) circumstances existed that produced real and substantial pressure to terminate
employment; (2) like circumstances would compel a reasonable person to act in the same
manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a
reasonable effort to preserve her employment. Procito v. Unemployment Comp. Bd. of Review,
945 A.2d 261, 264 (Pa. Cmwlth. 2008.)
       8
         In First Federal Savings Bank v. Unemployment Compensation Board of Review,
953 A.2d 811 (Pa. Cmwlth. 2008), this Court held that a claimant who had demonstrated that she
was unjustly reprimanded with abusive language, exposed to intolerable working conditions, and
subjected to “uncalled for and incorrect” criticism and ridicule had cause of a necessitous and
compelling nature. First Federal, 953 A.2d at 817.
       9
         To establish health problems as a reason to quit, the claimant must offer competent
testimony that adequate health reasons existed to justify the voluntary termination, have
informed the employer of the health problems, and be available to work if reasonable
(Footnote continued on next page…)

                                                8
              Here, Claimant’s argument could be interpreted as asserting that she
had necessitous and compelling reasons to quit based upon intolerable working
conditions, her medical condition, and/or a substantial change in the terms and
condition of her employment. Her arguments, again, however, are based upon her
narrative of the circumstances surrounding her separation from employment, which
is not part of the record. The Board, based upon the record before it, found that
Claimant abandoned suitable and available work. The Board made no findings that
Claimant’s working conditions were intolerable.                With regard to Claimant’s
medical condition, the Board found that Claimant did not give Employer any
medical notes indicating that she could not work in sales. None of the Board’s
findings support a conclusion that Claimant had necessitous and compelling
reasons for quitting her employment. Thus, we must conclude that the Board did
not err in concluding that Claimant failed to establish necessitous and compelling
reasons for voluntarily terminating her employment.10


(continued…)

accommodations can be made. Ann Kearney Astolfi DMD PC v. Unemployment Comp. Bd. of
Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010).
       10
          An employer’s unilateral imposition of a substantial change in the terms and conditions
of employment also may provide a necessitous and compelling reason for an employee to leave
work. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth.
2003). For instance, “a reduction in compensation, if substantial enough, will constitute the
requisite cause to quit employment contemplated by Section 402(b).” Steinberg Vision Assocs.
v. Unemployment Comp. Bd. of Review, 624 A.2d 237, 239 (Pa. Cmwlth. 1993). The impact that
the employer’s changes have upon the employee, not the employer’s reasons for instituting the
changes, is the focus of the inquiry. McCarthy, 829 A.2d at 1271.
       Claimant, however, does not appear to argue that she had a necessitous and compelling
reason to quit her employment as a result of a change in the terms and conditions of her
employment, except to the extent any change may affect her medical condition. Moreover,
(Footnote continued on next page…)

                                               9
               Accordingly, the order of the Board is affirmed.11




                                     P. KEVIN BROBSON, Judge




(continued…)

although the Board found that Employer reduced her hourly compensation, thereby changing the
terms and conditions of her employment, it also found that Employer believed that Claimant
would actually make more money in sales.
       11
          Claimant also mentions that she was unaware of the hearing dates. She explains that
due to the financial strain of losing her job, she lost her home and “inadvertently missed a lot of
mail.” (Petitioner’s br. at 6.) She provides no other details regarding her circumstances at the
time of the mailing of the notice of the first hearing (at which she did not appear), the Referee’s
decision, (which she appealed), and the notice of the second hearing (at which she did not
appear). All of those items appear to have been mailed to the same address. (See C.R., Item Nos.
8, 10, and 14.) She does not provide any information as to whether she ever notified
unemployment compensation authorities about a change of her address. We observe, however,
that the Board’s order was mailed to a different address than the hearing notices and Referee’s
decision, although we see nothing in the file that indicates when or under what circumstances the
address was changed. (See C.R., Item No. 17.) Claimant, however, does not argue that the
Board erred or abused its discretion in failing to schedule a third hearing date to consider
whether she had good cause for missing the first two hearing dates. For those reasons, we do not
address such issues in this opinion.



                                               10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeannette M. Holman,                  :
                       Petitioner     :
                                      :
           v.                         :   No. 890 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER


           AND NOW, this 2nd day of March, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                             P. KEVIN BROBSON, Judge
