            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


ABA Support Services, LLC,                :
                Petitioner                :
                                          :
              v.                          : No. 929 C.D. 2017
                                          : Submitted: March 9, 2018
Unemployment Compensation                 :
Board of Review,                          :
                 Respondent               :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                   FILED: April 5, 2018


              ABA Support Services, LLC (Employer) petitions for review of the
Unemployment Compensation Board of Review’s (Board) decision finding Judith
Herrera (Claimant) eligible for unemployment compensation (UC) benefits because
she had a necessitous and compelling reason for leaving her employment due to fear
for her personal safety pursuant to Section 402(b)1 of the Unemployment
Compensation Law (Law). For the following reasons, we affirm.


       1
          Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b), provides that an employee is
ineligible for benefits for any week “[i]n which her unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature.”
                                           I.
             The facts are not in dispute. Employer provides therapeutic services to
children with special needs, including those with acute to moderate behavioral issues.
Claimant began working for Employer as a full-time biller on December 27, 2016.
When she was first hired, Employer informed Claimant that she would not deal with
clients directly. Claimant worked in the administrative offices, located in the front of
the building away from the classroom in the back where clients received services. At
some point during Claimant’s employment, she began to feel unsafe when a teenage
female client grew increasingly volatile. This particular client required two-to-one
services, meaning that two adults were required to care for her at all times. The client
would regularly run out of the classroom to the administrative offices, including
Claimant’s own office, where she would bang on the office door and scream while
therapists attempted to restrain her.


             Claimant voiced her concerns to Employer. Employer instructed her to
lock herself in her office when the client became volatile and assured her that it
would attempt to obtain approval for three-to-one care for the client. However,
Employer was ultimately unable to obtain such approval.           One of the client’s
therapists, Rebecca Sutton (Sutton), allowed Claimant to take photos of several large
bruises on Sutton’s arms that she sustained during one of the client’s outbursts. On
another occasion, Claimant used her cell phone to record the client’s outburst when
she banged loudly on Claimant’s door.


             On January 23, 2017, the client had an outburst that required five of the
staff to restrain her. Afterwards, the police were called and they wrote a report to



                                           2
establish the aggressive behavior. Upset over the incident, Claimant left work and,
the following day, voluntarily quit her job.


             Claimant then applied for UC benefits, citing both personal reasons and
health reasons for her voluntarily leaving employment. When the UC Service Center
(Service Center) called Claimant to determine whether she left employment for
personal or health reasons, Claimant answered:

             I quit because it was an unsafe work environment that
             affected my health. I was injured there, had to go to urgent
             care and had to keep my door locked. I was never made
             aware when hired how the work environment was.


(Reproduced Record (R.R.) at 11a.)         The Service Center issued a Notice of
Determination finding Claimant eligible for UC benefits for leaving her employment
because of the unsafe work environment. Employer appealed.


             Before the Referee, Claimant recounted that at the beginning of her
employment, Employer informed her that she would have no direct contact with
clients. Employer then asked her how she felt the client was a direct threat to her if
she did not work directly with the client. She answered:

             Because when the client comes from the back of the
             classroom and literally ends up inches from my door
             banging and beating up her therapist as well as our boss, as
             well as a male therapist, that becomes a problem and that
             becomes a safety issue to myself.


(R.R. at 35a.)

                                           3
              Claimant also submitted into evidence photos of the bruising on Sutton’s
arm, compact discs containing audio recordings of Employer’s client violently
banging on Claimant’s door, her resignation letter and a statement written by Sutton
regarding the unsafe nature of Employer’s work environment. Employer did not
object to the introduction of any of this evidence on the basis of hearsay.2


              Dulce Taveras, Employer’s Director of Human Resources, testified that
when Claimant began working, she was aware that Employer was a provider of
services to children with “behaviors under the spectrum” and that the workplace was
not just an administrative office. (R.R. at 38a.) When asked why Employer called
the police on January 23, 2017, after the client’s violent outburst, Employer
responded:

              [W]hen they had four or five people restraining her and she
              would not subdue out of her behavior, due to Pennsylvania
              laws the police had to be called to write a report because we
              were in the process of proving to the State that the child has
              such aggressive behaviors that we needed more care than
              two-to-one. She was in – we were entering a pilot program
              with that client so that we can help other clients with similar
              aggressive behaviors and for the State to approve four-to-
              one care versus one-on-one or two-to-one for . . . our
              children in the State of Pennsylvania.


(R.R. at 37a.)

       2
          The only objection Employer made was to the recordings on the basis that they violated the
client’s confidentiality under the Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub.L. 104 – 191, 110 Stat. 1936. The Referee overruled this objection, as the recordings
failed to provide any identifiable information about the client.




                                                 4
               The Referee found Claimant eligible for benefits because her reason for
leaving work – that she had a valid concern for her personal safety – was of a
necessitous and compelling nature.            The Referee also found that Claimant had
properly raised her concerns with Employer and it was reasonable for her to believe
that her safety concerns would not be addressed, leaving her no other alternative but
to resign. Employer appealed to the Board, which affirmed. In addition to adopting
the Referee’s findings, the Board also found that “When hiring [Claimant],
[Employer] informed [Claimant] that she would not be dealing with the clients
directly.” (R.R. at 62a.) This petition for review followed.3


                                                II.
               Employer contends the Board’s finding that Claimant had a necessitous
and compelling reason to quit her employment is not supported by substantial
evidence because Claimant did not establish that she was in danger and her fear of
harm was to others’ safety rather than her own.




       3
          Our scope of review is limited to determining whether the findings of fact are supported by
substantial evidence, whether an error of law was committed, or whether any of the parties’
constitutional rights were violated. Feinberg v. Unemployment Compensation Board of Review,
635 A.2d 682 (Pa. Cmwlth. 1993). Substantial evidence is relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Compensation Board of
Review, 502 A.2d 738 (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 benefit of any inferences which can logically and
reasonably be drawn from the evidence. Id. 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. Taylor
v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).




                                                 5
             Under Section 402(b) of the Law, a claimant is ineligible for benefits for
any week in which her unemployment is due to voluntarily leaving work without
cause of a necessitous and compelling nature. 43 P.S. § 802(b).

             To prove a necessitous and compelling reason for leaving
             employment, a claimant must demonstrate the following:
             (1) circumstances existed that produced real and substantial
             pressure to terminate employment; (2) such 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.


Havrilchak v. Unemployment Compensation Board of Review, 133 A.3d 800, 804
(Pa. Cmwlth. 2015). A reasonable fear for one’s safety can constitute necessitous and
compelling cause to voluntarily terminate employment. Howell v. Unemployment
Compensation Board of Review, 501 A.2d 718 (Pa. Cmwlth. 1985).


             Moreover, that reasonable belief does not have to be based upon a direct
threat of harm, but only a reasonable perceived threat. In Hoy v. Unemployment
Compensation Board of Review, 391 A.2d 1144 (Pa. Cmwlth. 1978), claimants quit
their positions at a store around the time when two murder/robberies were committed
in the county at retail stores similar to their employer’s. The suspect was believed to
be in the area. After voicing their concerns with their manager, claimants were
instructed that they were not to close the store early without permission, and, if they
feared for their safety, they were to lock the doors and wait for the police to arrive. In
that case, we held that claimants’ fear for their personal safety was reasonable and
their reason for leaving employment was of a necessitous and compelling nature.



                                            6
               In this case, Claimant had a necessitous and compelling reason for
leaving her employment – fear for her personal safety because Employer was unable
to control the client’s violent tantrums, which were growing progressively worse.
Claimant informed Employer about her safety concerns, yet Employer was unable to
prevent the client from repeatedly assaulting and injuring staff, escaping her
classroom, running through the building, damaging furniture, and running to
Claimant’s office where she would scream, and pound on Claimant’s locked office
door and try to break the glass window before being forcibly subdued by up to five
staff members. Furthermore, the only reason that Claimant had not been directly
harmed is because the client had not yet succeeded in breaking down Claimant’s
office door. Given these facts, Claimant has shown that the danger was real and not
merely perceived as dangerous, and that she gave Employer adequate opportunity to
address her safety concerns.4




       4
           Employer contends that the Board impermissibly relied upon hearsay, specifically, a
written statement by Sutton recounting the dangers posed by the client, as well as photos taken by
Claimant showing the injuries Sutton sustained while dealing with that client. While hearsay
evidence, properly objected to, is not competent evidence to support a finding of the Board,
“hearsay evidence admitted into evidence without objection will be given its natural probative effect
and may support a finding of the Board if it is corroborated by any competent evidence in the
record.” Bailey v. Unemployment Compensation Board of Review, 597 A.2d 241, 243 (Pa. Cmwlth.
1991). The photos are not hearsay evidence. Aside from the fact that Claimant herself took them,
Claimant also, without objection, testified that she possessed “pictures of one of [the client’s]
therapists who gave [her] permission to submit [pictures] of her injuries [Sutton] sustained because
of that client.” (R.R. at 31a.) While Sutton’s statement that the client caused her injuries is hearsay,
it was admitted without objection and corroborated by Employer’s apparent admission that the
pictures did reflect injuries sustained by Sutton at the hands of the client. When asked by the
Referee about Sutton’s injuries depicted in the photographs, Employer's witness responded, “And
that is what -- those are the therapists . . . who work with aggressive children and anyone who
works with aggressive children has training, knows what . . . can happen. . . .” (R.R. at 37a.)



                                                   7
             Despite these facts, Employer contends this case is analogous to Green
Tree School District v. Unemployment Compensation Board of Review, 982 A.2d 573
(Pa. Cmwlth. 2009). In that case, the claimant, the director of education of a school
for autistic children, resigned because the school’s elimination of one “behavior
coordinator” position rendered her unable to ensure the safety of the students and the
staff. We held that the claimant was ineligible for benefits because she did not testify
that she was personally in danger, only that others may be in danger. We also found
her ineligible because for the danger to be “real,” the test is not whether a claimant’s
belief is a genuine one but, rather, whether the claimant has demonstrated that the
workplace environment has placed “real,” i.e., actual and extreme pressure on the
claimant to leave her employment. Id. at 578.


             Unlike in Green Tree, as previously recounted, Claimant, in this case,
demonstrated that she was personally in danger because the violent behavior
repeatedly occurred right outside her office door, and was directed at her personally,
and she was compelled to take refuge from the violent client by locking her office
door.


             Based on the findings made by the Board, which were supported by
substantial evidence, it was reasonable for Claimant to fear for her personal safety
and leave her employment. Accordingly, the Board’s decision is affirmed.



                                       _________________________________
                                       DAN PELLEGRINI, Senior Judge




                                           8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


ABA Support Services, LLC,          :
                Petitioner          :
                                    :
            v.                      : No. 929 C.D. 2017
                                    :
Unemployment Compensation           :
Board of Review,                    :
                 Respondent         :




                                   ORDER


            AND NOW, this 5th day of April, 2018, the Unemployment
Compensation Board of Review’s order dated June 9, 2017, is affirmed.



                                    _________________________________
                                    DAN PELLEGRINI, Senior Judge
