           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marcia L. Minnig,                            :
                     Petitioner              :
                                             :
              v.                             :
                                             :
Unemployment Compensation                    :
Board of Review,                             :   No. 756 C.D. 2018
                 Respondent                  :   Submitted: October 19, 2018


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                          FILED: February 8, 2019


              Marcia L. Minnig (Claimant), pro se, petitions for review of the May
3, 2018 order of the Unemployment Compensation Board of Review (Board)
affirming the referee’s decision to deny Claimant unemployment compensation
benefits under Section 402(b) of the Pennsylvania Unemployment Compensation
Law (Law),1 which provides that a claimant shall be ineligible for benefits in any
week in which her unemployment is due to voluntarily leaving work without cause
of a necessitous and compelling nature. Upon review, we affirm.




       1
       Section 402(b) of the Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
amended, 43 P.S. § 802(b).
             Claimant was employed by Alcon Research Ltd. (Employer) as a
training compliance specialist from September 22, 2008 until December 13, 2017.
Certified Record (C.R.) Item No. 13, Referee’s Decision/Order, 3/2/18, Findings of
Fact (F.F.) 1. Claimant voluntarily left her employment due to alleged health
reasons. F.F. 2. Claimant subsequently submitted a claim for unemployment
compensation benefits, listing “health” as her reason for quitting employment and
specifically citing “highblood [sic] pressure due to stress.” C.R. Item No. 2, Internet
Initial Claims at 2-3. The Pennsylvania Department of Labor and Industry Office of
Unemployment Compensation Benefits (Office of UC Benefits) mailed Claimant a
Notice of Determination, finding that Claimant was ineligible for unemployment
compensation benefits under Section 402(b).           C.R. Item No. 6, Notice of
Determination at 1.
             Claimant timely appealed the determination of the Office of UC
Benefits to a referee. Referee’s Decision/Order at 1. On March 1, 2018, the referee
held a hearing at which Employer presented the testimony of Sheila Scola (Scola),
Employer’s Human Resources Site Tech. C.R. Item No. 12, Referee’s Hearing,
3/1/18, Notes of Testimony at 1. Claimant did not attend the hearing. Id. Scola
testified that the morning of December 13, 2017, she, Claimant, Claimant’s manager
and Employer’s Quality Site Head attended a meeting during which they “ha[d] an
active dialogue and discussion regarding [Claimant’s] workload and capacity”
which “focus[ed] on what [Claimant’s] concerns were about her job[.]” Id. Scola
testified that Claimant did not indicate during this meeting that she intended to quit.
Id. at 4. A follow-up meeting was set to take place the next day. Id. Scola further
testified that continuing work would have been available to Claimant if she had
returned. Id.


                                          2
              Following the hearing, the referee affirmed the Office of UC Benefits’
determination, noting that although “[C]laimant admit[ted] in the Internet Initial
Claims document that she voluntarily quit her job . . . for health reasons, . . . she did
not appear at the hearing . . . to offer essential testimony to establish necessitous and
compelling reason to quit the job for health reasons.” C.R. Item No. 13, Referee’s
Decision/Order at 2. The referee also found that continuing work remained available
at the time of separation. F.F. 3.
             Claimant timely appealed to the Board, contending that she “was unable
to attend the hearing due to time constraints with a family wedding on the [w]est
coast,” and that she “would like to present [her] testimony.” C.R. Item No. 14,
Appeal to Board, 3/6/18 at 1 & 4. The Board thereafter issued an order “adopt[ing]
and incorporat[ing] the [r]eferee’s findings and conclusions” and affirming the
referee’s decision and order. C.R. Item No. 15, Board’s Order, 5/3/18 at 1. The
Board denied Claimant’s request for an additional opportunity to provide testimony,
“because [Claimant] did not request a continuance or contact the [r]eferee’s office
in an attempt to preserve her rights,” and also because “the Board [did] not consider
her given reason good cause for missing a hearing without contact.” Id. Further, the
Board noted that “when [Claimant] called about the hearing being continued, she
indicated she would be out of town from February 24-28, 2018, and the hearing was
scheduled for March 1, 2018.” Id.
             Before this Court, Claimant presents one issue for our review, namely,
whether the Board “erred in concluding that the [C]laimant is ineligible for benefits
under the provisions of Section 402(b)” of the Law.            Claimant’s Brief at 6.
Claimant asserts that the “essential testimony to establish necessitous and
compelling reason to quit the job for health reasons[] . . . is presented within the


                                           3
contents of this brief.” Id. In her brief, Claimant argues that she “satisfied the
requirement to prove good cause for quitting with no other alternative.” Id. at 14.
Claimant contends that she “informed [] [E]mployer of her health limitations prior
to quitting so that [] [E]mployer could offer suitable work within [her] limitations[,]”
but asserts that “[E]mployer failed to offer suitable work at [her] request.” Id. at 15.
Claimant contends that “[t]he suitability of [her] work will be determined by
considering factors such as the degree of risk involved to the Claimant’s health,
safety and morals.” Id. Claimant maintains that “[t]he [E]mployer created a stressful
work environment (health) and demanded [that she] . . . participate in external audits
while Quality Management ignored training non-conformances (morals)[,]” and also
that her “request to be removed from external audits was denied.” Id.
             Initially, we note that Claimant does not challenge the Board’s decision
to deny her request for an additional opportunity to provide testimony. Instead, she
attempts to provide that testimony for the first time to this Court in her brief.
However, the averments and allegations contained in Claimant’s brief do not
constitute testimonial evidence. See Black’s Law Dictionary 1704 (10th ed. 2014)
(defining “testimony” as “[e]vidence that a competent witness under oath or
affirmation gives at trial or in an affidavit or deposition”). Further, and more
importantly, this Court cannot consider “testimony” or other “evidence” that was not
part of the record below. See Correa v. Unemployment Comp. Bd. of Review, 374
A.2d 1017, 1020 (Pa. Cmwlth. 1977) (stating that this Court cannot consider
evidence not offered before the factfinder below).
             “A claimant who voluntarily terminates his employment has the burden
of proving that a necessitous and compelling cause existed.” Solar Innovations, Inc.
v. Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012).


                                           4
“It is well established that medical problems can create necessitous and compelling
cause to leave employment.” Lee Hosp. v. Unemployment Comp. Bd. of Review, 637
A.2d 695, 698 (Pa. Cmwlth. 1994) (citing Deiss v. Unemployment Comp. Bd. of
Review, 381 A.2d 132 (Pa. 1977)).

             To establish health problems as a compelling reason to
             quit, the claimant must (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. Genetin v. Unemployment
             Comp[.] B[d.] of Review, . . . 451 A.2d 1353 ([Pa.] 1982).
             Failure to meet any one of these conditions bars a claim
             for unemployment compensation . . . .

Ann Kearney Astolfi DMD PC. v. Unemployment Comp. Bd. of Review, 995 A.2d
1286, 1290 (Pa. Cmwlth. 2010) (quoting Lee Hosp., 637 A.2d at 698; see also
Watkins v. Unemployment Comp. Bd. of Review, 65 A.3d 999, 1004–05 (Pa. Cmwlth.
2013) (stating that a claimant may establish the three elements outlined above
“through competent and credible evidence”). “[A] claimant does not necessarily
have to present expert medical evidence in order to establish that he had compelling
medical reasons for terminating his employment, but instead may establish that fact
by any competent evidence.” Cent. Data Ctr. v. Unemployment Comp. Bd. of
Review, 458 A.2d 335, 337 (Pa. Cmwlth. 1983). “This evidence may consist of the
claimant’s own testimony and/or documentary evidence.” Id. “Whether a claimant
had cause of a necessitous and compelling nature to quit a job is a conclusion of law
subject to review by this Court.” Warwick v. Unemployment Comp. Bd. of Review,
700 A.2d 594, 596 (Pa. Cmwlth. 1997).



                                         5
             Here, Claimant, the party with the burden of proof, failed to provide
competent evidence to support her claim. The Board, in adopting the referee’s
decision, stated that Claimant admitted that she voluntarily quit her job. C.R. Item
No. 13, Referee’s Decision/Order, 3/2/18 at 2. However, the Board noted that
although Claimant stated in her Internet Initial Claims form that she quit for health
reasons, “she did not appear at the hearing to offer essential testimony to establish
necessitous and compelling cause to quit the job for health reasons.” C.R. Item No.
13, Referee’s Decision/Order, 3/2/18 at 2. Although the referee admitted Claimant’s
Internet Initial Claims form into the record during the hearing, this document alone
does not constitute competent evidence because it is uncorroborated hearsay. In
administrative proceedings, “[h]earsay evidence, [a]dmitted without objection, will
be given its natural probative effect and may support a finding of the Board, [i]f it is
corroborated by any competent evidence in the record, but a finding of fact based
[s]olely on hearsay will not stand.” Walker v. Unemployment Comp. Bd. of Review,
367 A.2d 366, 370 (Pa. Cmwlth. 1976). Claimant did not appear at the hearing to
corroborate the statements contained in her Internet Initial Claims form.
Consequently, there was no competent evidence in the record to corroborate this
hearsay evidence and, therefore, no competent evidence of record to establish that
Claimant quit for health reasons. See Singletary v. Unemployment Comp. Bd. of
Review (Pa. Cmwlth., No. 845 C.D. 2010, filed Nov. 19, 2010), slip op. at 6 (holding
that a claimant could not rely on two signed questionnaires to establish that she had
a health issue constituting necessitous and compelling cause to quit her employment
when the claimant did not appear at the hearing to testify regarding her statements
in the questionnaires, such that there was no competent evidence in the record to



                                           6
corroborate the hearsay documentation).2 Thus, because Claimant failed to provide
competent evidence to establish that adequate health reasons existed to justify her
voluntary quit, Claimant cannot sustain her burden to establish that she had
necessitous and compelling cause to quit her employment. See Ann Kearney, 995
A.2d at 1290. Therefore, the Board did not err in affirming the referee’s decision to
deny Claimant unemployment compensation benefits.
              Accordingly, we affirm.




                                          __________________________________
                                          CHRISTINE FIZZANO CANNON, Judge




       2
         Although not binding, this Court’s unreported memorandum opinions may be cited for
persuasive value. Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code
§ 69.414(a).
                                            7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcia L. Minnig,                    :
                    Petitioner       :
                                     :
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 756 C.D. 2018
                 Respondent          :


                                 ORDER


           AND NOW, this 8th day of February, 2019, the May 3, 2018 order of
the Unemployment Compensation Board of Review is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
