                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert F. Spagna,                             :
                     Petitioner               :
                                              :   No. 1200 C.D. 2016
              v.                              :
                                              :   Submitted: January 13, 2017
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                 FILED: May 25, 2017


              Robert Spagna (Claimant) petitions for review of the June 27, 2016,
order of the Unemployment Compensation Board of Review (Board) affirming a
referee’s decision holding that Claimant was ineligible for benefits under Section
402(b) of the Unemployment Compensation Law (Law).1




       1
          Section 402(b) of the Law, 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 that a claimant “shall be
ineligible for compensation for any week. . . [i]n which his unemployment is due to voluntarily
leaving work without cause of a necessitous and compelling nature.” Id.
                            Facts and Procedural History
               Claimant was a supervisor for Philadelphia Truck Lines (Employer),
having begun employment with Employer on July 17, 2012. In 2014, Claimant was
off work due to heart bypass surgery. (Board’s Findings of Fact Nos. 1-2.)
               Claimant returned to work with Employer on January 12, 2015, as a
second shift warehouse supervisor. Employer accommodated Claimant’s medical
restrictions, which included no excessive use of steps, no standing for long periods of
time, no working in extremes of weather, no lifting more than twenty pounds, and no
working more than forty hours weekly.      On January 13, 2016, Employer informed
Claimant he would be working a different shift time, starting at midnight and ending
at 8:00 a.m. (“third shift”), as opposed to Claimant’s shift at the time, 8:00 p.m. to
4:00 a.m. (“second shift”). (Board’s Findings of Fact Nos. 2-5.)
               Claimant’s job duties would not have changed if he had taken the move
to third shift from second shift and his medical restrictions would continue to be
accommodated. (Board’s Findings of Fact Nos. 6, 7.)
               “The [C]laimant had not presented the [E]mployer any medical
documentation after July 2015 regarding whether his restrictions had changed, or
whether he could not work third shift.” (Board’s Finding of Fact No. 8.)
               “The employer,” as found by the Board, “informed the claimant that if
he did not agree to a change in schedule he could no longer continue working for the
employer and the employer would consider him to have quit.” (Board’s Finding of
Fact No. 9.)
               Further, the Board found, “The claimant refused the shift change and
quit his employment, alleging he could not work on third shift due to medical




                                          2
restrictions. . . . The claimant did not attempt to work the third shift before ceasing to
work for the employer.” (Board’s Findings of Fact Nos. 10-11.)
              Claimant’s last day of work was January 13, 2016, when he declined to
attempt to work the third shift. Claimant filed a claim for benefits with the local
service center, asserting, “They told me if I did not accept the shift change I had to
quit. I told them I would not quit and they told me I was fired.” (Record at Item No.
4.) The local service center determined that Claimant was ineligible for benefits
under Section 402(e) of the Law, finding that “[t]here was insufficient information
provided to indicate whether Claimant had good cause for his actions,” which it
deemed willful misconduct justifying a discharge by Employer.                 (Notice of
Determination at 1.)
              Claimant appealed and the case was assigned to a referee for a hearing.
              Claimant testified that his medical restrictions and medications
prevented him from working third shift, relying on doctors’ statements from medical
appointments from the preceding summer (or earlier). (Notes of Testimony (N.T.) at
6-9, 11, and Claimant’s Exhibit 1.) Claimant submitted Exhibit 1, which consisted of
a series of medical notes and handwritten scrips ranging from January 5, 2015, up to
July 31, 2015, nearly six months before he ceased working. The January 5, 2015,
scrip contained restrictions and read as follows: “To whom it may concern. Mr.
Robert Spagna is cleared to go back to work on 1/12/15. He has been told not to
work over 40 [hours] [illegible].    In addition, he has sleep apnea and should be on
day shift.”   The other parts of the exhibit included office visits and notes, and
contained a July 31, 2015, note which stated, “Follow up in six months.               No
excessive use of steps, no standing for long periods of time or working in extremes of
weather, no lifting greater than 20 pounds, no working over 40 hrs/week. Get plenty



                                            3
of rest.” (Claimant’s Exhibit 1.) Employer had no objection to admission of this
exhibit. (N.T. at 11.)
                Based on this release by his cardiologist in January of 2015, Claimant
returned to work as supervisor on the second shift (8:00 p.m. to 4:00 a.m.). Claimant
testified that on March 28, 2015, Employer sought to have him start working the third
shift (midnight to 8:00 a.m.), but when Claimant cited health concerns, Employer
filled the third shift with someone else. Claimant testified that after his release to
return to work, he was supposed to follow up with his cardiologist every six months.
Claimant saw his cardiac doctor after his last day of work. However, although this
was prior to the referee’s hearing, Claimant did not ask his doctor for any slip
regarding current medical restrictions. (N.T. at 8-13.) According to Claimant, that
was not important because, “Well, they knew about my limitations.” (N.T. at 27-28.)
When the referee asked Claimant specifically whether the workplace restrictions
continued after the 2016 appointment with his cardiologist, Claimant replied that he
did not bother asking for such a slip “because I wasn’t working so there wasn’t any
reason. . . to give me a restriction.” (N.T. at 8.)
                When the referee asked the Employer whether Claimant could have
continued working if he had accepted the shift change, the Employer answered
affirmatively. (N.T. at 19.) Employer testified that the job duties would not have
changed upon Claimant moving from second to third shift. (N.T. at 17-18.)
                Following the hearing, the referee issued a decision and order dated
April 1, 2016, finding Claimant ineligible for benefits under section 402(b) of the
Law because she held Claimant to have voluntarily quit his job while lacking a reason
of a necessitous and compelling nature.       (Referee’s Decision at 2.) Moreover, the
referee held:



                                             4
             Specifically, based on the claimant’s own evidence, the
             restrictions in place were put there in July of 2015, and
             the claimant f[a]iled to offer any competent evidence as to
             what his specific restrictions were on or at the time he
             stopped working. Even if the Referee considered the
             claimant’s restrictions as of July 2015 in considering
             whether the claimant had good cause for his failure to
             accept employer’s shift change, nothing in the claimant’s
             restrictions as presented prevent the claimant from
             changing his shift.

Id. at 2.
             The referee also found that even if she had considered Claimant’s
eligibility under section 402(e) of the Law, dealing with willful misconduct, Claimant
would remain ineligible because he “would not be able to establish that he had a good
cause reason for failing to accept the employer’s shift change on the same basis as his
alleged medical restrictions and/or a lack of desire to work this certain shift.” Id.
             Claimant appealed to the Board, which affirmed in a decision and order
dated June 27, 2016. Moreover, the Board found that Claimant’s real objection to the
change to third shift was “that he would not see his wife, [and] the change would
disrupt his eating and sleeping habits, and would affect his medical restrictions.”
(Board’s decision at 3.) At no point on January 13, 2016, did Claimant ever provide
current medical documentation to support his allegations concerning any medical
restrictions. The Board concluded that Claimant “was given a choice, i.e., change
shifts or cease employment and [Claimant] chose not to remain employed.” The
Board found that Claimant had not met his burden of proving a compelling reason to
quit. Id. at 2-3.   Further, the Board did not “credit [C]laimant’s testimony that he
could not properly perform that job [third shift] as he provided no doctor’s note to
that effect.” Id. at 3. The Board rejected Claimant’s testimony that he would not be



                                            5
able to perform the job duties of third shift as “speculation.” Id. Accordingly, the
Board determined that the proper focus was Section 402(b), dealing with voluntary
quits, and not 402(e), dealing with willful misconduct, as the basis for finding
Claimant ineligible for unemployment compensation benefits. Id. at 2.
              Claimant filed a timely appeal to this Court.
              On appeal to this Court,2 Claimant argues that the Board erred because
his separation was due to a necessitous and compelling reason. More specifically,
Claimant argues that he adduced competent testimony that adequate health reasons
existed to justify his resignation. Next, he argues that he showed that his continued
work would have aggravated his existing medical condition.                    Finally, Claimant
argues that he made a reasonable effort to maintain his employment. We disagree
with Claimant’s arguments.


                                           Discussion
              Section 402(b) of the Law provides that a claimant shall be ineligible for
benefits for a period “[i]n which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.” 43 P.S. §802(b). A claimant
who voluntarily terminates employment has the burden to prove that a necessitous
and compelling cause existed. Petrill v. Unemployment Compensation Board of
Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). An employee who claims to have
left employment for a necessitous and compelling reason must prove that:                       (1)


       2
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).




                                                6
circumstances existed which 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 his or her employment. Brunswick
Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006).
             Moreover, Pennsylvania courts have been clear in their direction when a
claimant seeks to establish health issues as a compelling reason to quit. Specifically,
to prevail under Section 402(b), a claimant has the burden to “(1) offer competent
testimony that adequate health reasons existed to justify the voluntary termination, (2)
have informed the employer of the health problems and (3) be available to work if
reasonable accommodations can be made.”           Ann Kearney Astolfi DMD PC v.
Unemployment Compensation Board of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth.
(2010), citing, Genetin v. Unemployment Compensation Board of Review, 451 A.2d
1353, 1356 (Pa. 1982).
             An employee who leaves work for medical reasons is rendered ineligible
for benefits “if the employer provides alternative work which is compatible with the
employee’s disability.”    Leonarczyk v. Unemployment Compensation Board of
Review, 397 A.2d 49, 50 (Pa. Cmwlth. 1979). Moreover, a claimant “must attempt to
perform alternative work before becoming unemployed.” Id. Finally, “unless the
requirements of the job being offered are so obviously beyond the physical
capabilities of the claimant as to involve an unreasonable risk of injury, then the
claimant must make a reasonable effort before declaring he or she cannot perform the
duties.” Id., citing Kownacki v. Unemployment Compensation Board of Review, 335
A.2d 868, 870 (Pa. Cmwlth. 1975).



                                           7
              In this case, Claimant quit without attempting to work the third shift as
requested by Employer. The record reflects that Claimant provided two notes from
his cardiologist for Employer. The January 5, 2015, note cleared Claimant for work,
albeit limited to forty hours weekly and day shift only. However, beginning on
January 12, 2015, Claimant worked the second shift, which encompassed the hours of
8:00 p.m. to 4:00 a.m.          Claimant never complained that his second shift was
inconsistent with his doctor’s restrictions. Also, even though Claimant provided a
note from his cardiologist dated July 31, 2015, it did not contain the restriction to day
shift that had been noted in the January 5, 2015, scrip. Moreover, the Board found
that the duties of the third shift were no different from the duties of the second shift.
Although Claimant alleged that he was unable to work this shift due to medical
restrictions, and introduced Claimant’s Exhibit 1 at the referee hearing, which
included a series of medical notes and handwritten scrips, there is nothing in the
record to support Claimant’s argument that he was unable to work a night shift,
which involved the same duties as the second shift (8:00 p.m. to 4:00 a.m.) he had
been working since he returned to work in January of 2015.3

3
  The dissent suggests that “it was Employer’s burden to show that Claimant no longer had sleep
apnea or that his sleep apnea did not prevent him from working the third shift.” Assuming
arguendo that Employer has the burden of disproving Claimant’s problems with sleep apnea,
Employer met that burden with undisputed evidence that Claimant worked the second shift (8:00
p.m. to 4:00 a.m.) without complaint or problem. It is important to look at the sequence of events.
After Claimant first returned to work and provided Employer with the January 12, 2015, doctor’s
letter, he proceeded to work the second shift, also a night shift (from 8p.m. to 4 a.m.) without
making any objection to Employer. Employer accommodated Claimant’s medical restrictions,
which included no excessive use of steps, no standing for long periods of time, no working in
extremes of weather, no lifting of more than twenty pounds and no working more than forty hours
weekly. Hence, Claimant was working, and continued to work a night shift even after submitting
the January 12, 2015, note to Employer. Claimant never made any objection to working the night
shift.

(Footnote continued on next page…)

                                                8
               Claimant failed to present any evidence of adequate health restrictions
preventing him from working the third shift as of his last day of work, January 13,
2016, and the referee and Board found Claimant not credible concerning his ability to
work third shift. (Board op. at 3.) The slips and scrips in Exhibit 1 addressed his
medical condition and restrictions between January and July of 2015. Claimant had
an appointment with his cardiac doctor between his last day of work and the date of
the referee’s hearing, yet specifically declined to even ask his physician for any note
regarding his current medical restrictions.
               Claimant did not make himself available for the work that was available
from Employer for the third shift, which, as found by the referee and the Board,
differed in no material respect from his prior work except it was “third shift”
(midnight to 8:00 am) instead of “second shift” (8:00 pm to 4:00 am). Claimant

(continued…)


On March 28, 2015, Employer requested that Claimant work a different night shift, the third shift
(12 midnight to 8 a.m.), instead of the second shift, with no change in job duties and a continuation
of accommodating his medical restrictions. Claimant did not ask his doctor for another note saying
he could not now work a night shift. Instead, Claimant merely voiced objection and refused to work
the shift.

The Board found that Claimant’s real objection to the change to third shift was “that he would not
see his wife, and the change would disrupt his eating and sleeping habits, and affect his medical
restrictions.” The Board did not credit Claimant’s testimony that he could not properly perform the
third shift as he provided no doctor’s note to that effect and the Board found that he did not meet his
burden to prove he had a necessitous and compelling reason for leaving work. Moreover, when
Claimant saw his doctor on July 31, 2015, the doctor’s office notes did not contain any restrictions
on working a night shift, even though the other medical restrictions, which Employer had
accommodated, were still listed.


       Clearly, there was not any inappropriate shifting by the Board of Employer’s burden to rebut
evidence of a reason of a necessitous and compelling nature,



                                                  9
made no effort to preserve his employment, and was not found credible by the Board.
As such, Claimant did not meet his burden under Section 402(b) of proving that his
voluntary resignation was for a reason that was necessitous and compelling.
            Accordingly, the order of the Board is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert F. Spagna,                  :
                    Petitioner     :
                                   :    No. 1200 C.D. 2016
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                 ORDER


            AND NOW, this 25th day of May, 2017, the order of the
Unemployment Compensation Board of Review dated June 27, 2016, is hereby
affirmed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Robert F. Spagna,                         :
                         Petitioner       :
                                          :
                    v.                    :   No. 1200 C.D. 2016
                                          :   Submitted: January 13, 2017
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION BY
SENIOR JUDGE COLINS                                      FILED: May 25, 2017


            I dissent. The acceptance of the note of January 12, 2015 that Robert
F. Spagna (Petitioner) had sleep apnea and should be on the dayshift was unrefuted
by the Philadelphia Truck Lines (Employer). Therefore, it was Employer's burden
to show that Petitioner no longer had sleep apnea or that his sleep apnea did not
prevent him from working the third shift. Employer is now the burdened party,
and Employer did not introduce any evidence to show that there were changed
circumstances.



                                      ______________________________________
                                      JAMES GARDNER COLINS, Senior Judge
