           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna Horvath,                 :
                               : No. 1940 C.D. 2015
                    Petitioner : Submitted: April 15, 2016
                               :
                 v.            :
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: June 16, 2016



              Donna Horvath (Claimant) petitions pro se for review of the order of
the Unemployment Compensation Board of Review (Board), which affirmed a
Referee’s determination and held that Claimant was ineligible for benefits under
Section 402(b) of the Unemployment Compensation Law (Law).1 We affirm.
              Claimant was employed full-time by Univest Corporation of PA
(Employer) from April 21, 2014 through December 20, 2014, when she voluntarily


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.
quit her employment. The Service Center found that Claimant had resigned via a
text message sent to Employer and determined that she did not show necessitous
and compelling cause for leaving her employment. As a result, the Service Center
denied benefits under Section 402(b) of the Law.2
                 Claimant appealed the determination, alleging that she did not
voluntarily leave her employment. The Referee’s hearing was continued at
Claimant’s request and neither Claimant nor Employer appeared at the rescheduled
hearing. The Referee noted that “[n]othing in the Referee’s folder suggests that
either of the parties called to say they were going to be late or to request a
continuance,” and “[n]othing here shows that the Notice of Hearing that was
mailed to both parties was returned [as] undeliverable by the postal authorities.”
N.T. 6/9/153 at 1. Accordingly, based on the documents in the claim file,4 the
Referee found that Claimant quit her employment and determined that she failed to
sustain her burden of proving that she had a necessitous and compelling cause to
quit under Section 402(b) because she failed to offer competent evidence
supporting her claim of necessitous and compelling cause.
                 Claimant appealed to the Board alleging that she did not quit, but was
discharged and not promoted due to ethnic and gender discrimination. The Board

       2
          The Service Center noted a conflict regarding whether Claimant had quit or was
discharged for willful misconduct. However, based on its finding that Claimant had initiated the
separation from employment, the Service Center determined that Section 402(e) of the Law, 43
P.S. §402(e), relating to a claimant’s ineligibility for benefits where employment has been
terminated due to willful misconduct, is inapplicable in this case.

       3
           “N.T. 6/9/15” refers to the transcript of the Referee’s hearing.

       4
          See 34 Pa. Code §101.51 (“If a party notified of the date, hour and place of a hearing
fails to attend a hearing without proper cause, the hearing may be held in his absence. In the
absence of all parties, the decision may be based upon the pertinent available records.”).


                                                   2
adopted the referee’s findings and conclusions and determined that Claimant failed
to sustain her burden of proof or challenge the application of Section 402(b) by
failing to appear at the hearing. The Board also found that there is no evidence that
Claimant requested a postponement or continuance of the rescheduled hearing. As
a result, the Board affirmed the Referee’s determination that Claimant is ineligible
for benefits under Section 402(b).
                 On appeal to this Court,5 Claimant again argues that she did not
voluntarily leave her employment, but was forced out of her position due to her
nationality and that she was not promoted due to gender discrimination.6 However,
the burden of proof rested on Claimant to demonstrate the purported necessitous
and compelling cause for her voluntarily quit.                   Speck v. Unemployment
Compensation Board of Review, 680 A.2d 27, 29 (Pa. Cmwlth. 1996).7 Because


       5
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, and whether necessary findings of fact are
supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843-44 (Pa. Cmwlth. 1987). “Substantial evidence is such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion.” Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).

       6
           The Board did not file an appellate brief.

       7
           As this Court explained:

                 To meet that burden, the claimant must demonstrate circumstances
                 which placed real and substantial pressure upon him or her to
                 terminate employment, such as would also compel a reasonable
                 person to act in the same manner. Whether a termination of
                 employment was for necessitous and compelling reason is a
                 conclusion of law to be made based upon the underlying facts and
                 is reviewable by this Court.

Speck, 680 A.2d at 29 (citations omitted).


                                                   3
she failed to provide any competent evidence to meet her burden of proof, the
Board did not err in concluding that Claimant did not establish the claimed ethnic
and gender discrimination and that she is ineligible for benefits under Section
402(b) of the Law. See, e.g., Anker v. Unemployment Compensation Board of
Review, (Pa. Cmwlth. No. 434 C.D. 2010, filed December 10, 2010), slip op. at 5
(“Unfortunately for Claimant, her failure to appear at the Referee’s hearing meant
that she failed to provide any competent evidence to meet her burden of proof on
the ultimate legal issue. Accordingly, the Board did not err in deciding the case
based upon the available records and denying benefits under Section 402(b) of the
Law, 43 P.S. §802(b).”) (footnote omitted).8
              Accordingly, we affirm the Board’s order.




                                            MICHAEL H. WOJCIK, Judge




       8
         Anker, as an unreported panel decision of this Court, has persuasive value, but it does
not constitute binding precedent. Internal Operating Procedure 414(a), 210 Pa. Code §69.414(a).


                                               4
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna Horvath,                 :
                               : No. 1940 C.D. 2015
                    Petitioner :
                               :
                 v.            :
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


                              ORDER


           AND NOW, this 16th day of June, 2016, the order of the
Unemployment Compensation Board of Review, dated August 17, 2015, is
AFFIRMED.




                                __________________________________
                                MICHAEL H. WOJCIK, Judge
