                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Margaret Mazur,                                :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Unemployment Compensation                      :
Board of Review,                               :   No. 291 C.D. 2018
                    Respondent                 :   Submitted: July 27, 2018


BEFORE:       HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COVEY                                        FILED: September 7, 2018

              Margaret Mazur (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) February 28, 2018
order affirming the Referee’s decision denying Claimant UC benefits under Section
402(b) of the UC Law (Law).1 Claimant essentially presents one issue for this
Court’s review: whether the UCBR erred by determining that Claimant did not have a
necessitous and compelling reason for leaving her job.2 After review, we affirm.




       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
        2
          Claimant’s “Questions Presented” are as follows: (1) what evidence did the Erie UC
Service Center representative rely upon to determine that Claimant failed to exhaust her efforts to
retain her employment; (2) why did the Referee fail to address whether Claimant exhausted efforts
to maintain her employment; (3) why did the Referee fail to require Employer’s witnesses to testify
regarding whether Claimant exhausted efforts to maintain her employment; and (4) on what
evidence did the UCBR affirm the Referee’s determination that Claimant failed to exhaust efforts to
maintain her employment. See Claimant’s Amended Br. at 7. Because these issues are subsumed in
the analysis of whether the UCBR properly determined that Claimant did not have a necessitous and
compelling reason for leaving her job, we have combined the issues herein.
              Claimant was employed full-time as an accounting assistant by the
Pennsylvania Department of Military and Veterans Affairs (Employer) from July 9,
2007 to April 26, 2017, when she resigned. See Certified Record (C.R.) Item 9,
Notes of Testimony, August 8, 2017 (N.T. 8/8/17) Ex. C-1.                      The underlying
circumstances that led to Claimant’s resignation stem from Employer accusing
Claimant of theft resulting in Employer suspending Claimant without pay from May
26, 2016 through June 12, 2016.
              On June 1, 2016, while Claimant was on suspension, her collective
bargaining representative, Council 13, American Federation of State, County and
Municipal Employees, AFL-CIO (Union), filed a grievance on her behalf concerning
the suspension. On June 8, 2016, the Union and Employer entered into a last-chance
settlement agreement (Agreement), pursuant to which Claimant received a final
warning for a work rule violation and was notified that any further misconduct of a
similar nature would result in her discharge.             See N.T. 8/8/17 Ex. C-2.           The
Agreement specified: “Acceptance of this [Agreement] will dispose of all issues
associated with the [] grievance.” Id. Claimant returned to work on June 13, 2016
pursuant to the Agreement.3            Claimant acknowledged that she received the
Agreement upon her return to work that day.
              Due to Claimant’s persistent and interruptive lobbying of Employer to
have the discipline removed from her record, and contacting co-workers about the
settled matter, Claimant’s direct supervisor warned her that she may be subject to a
disciplinary conference and instructed her to go home. Claimant did not follow her
supervisor’s instructions to go home. On April 27, 2017, Claimant resigned her


       3
         Claimant received a copy of the Agreement, but disagreed with it and contacted her union
representative and others regarding her options. Because she did not receive a response, and was
not certain of her alternatives, she nevertheless returned and continued to work for approximately
ten months thereafter.
                                                2
employment, asserting she could no longer do her job because of extreme emotional
distress caused by ongoing harassment and discrimination.
              Thereafter, Claimant applied for UC benefits. On July 13, 2017, the Erie
UC Service Center (UC Service Center) concluded: “[A]lthough [Claimant] had a
necessitous and compelling reason for quitting, there were alternatives to resolve the
situation. Since [she] did not exhaust all alternatives prior to quitting, she has not
sustained her burden of proof and benefits must be denied under Section 402(b) [of
the Law].” UC Service Center Determination at 1. Claimant appealed, and Referee
hearings were held on August 8 and 23, 2017. On September 1, 2017, the Referee
affirmed the UC Service Center’s determination, holding that Claimant did not have a
necessitous and compelling reason for quitting, and she did not make a reasonable
effort to preserve her employment. Claimant appealed to the UCBR. On February
28, 2018, the UCBR adopted the Referee’s findings and conclusions, and affirmed
the Referee’s decision. Claimant appealed to this Court.4
              Claimant argues that the UCBR erred by concluding that she failed to
prove she had a necessitous and compelling reason for voluntarily quitting her job.
She also claims that since she only appealed from the portion of the UC Service
Center’s determination that she failed to exhaust all of her alternatives before
resigning, the Referee and the UCBR erred by re-examining and overturning the UC
Service Center’s conclusion that she had a necessitous and compelling reason for
quitting in the first instance.
              As an initial matter, Section 101.87 of the UCBR’s Regulations specifies
that, “[i]n hearing the appeal [from the UC Service Center’s determination,] the
tribunal shall consider the issues expressly ruled upon in the decision from which the

       4
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
                                                 3
appeal was filed.”5 34 Pa. Code § 101.87. This Court has specifically declared that
although the UC Service Center concludes in a claimant’s favor that she voluntarily
left her employment with cause of a necessitous and compelling nature and the
claimant did not intend to reopen that issue, it remains a proper area of inquiry for the
referee. Lenz v. Unemployment Comp. Bd. of Review, 432 A.2d 1149 (Pa. Cmwlth.
1981). Moreover, Section 101.107(b) of the UCBR’s Regulations further specifies,
in relevant part: “The [UCBR] shall consider the issues expressly ruled upon in the
decision from which the appeal was filed.” 34 Pa. Code § 101.107(b). Based
thereon, this Court has held that when a referee expressly rules on an issue, the
UCBR has jurisdiction to rule on it. Jordan v. Unemployment Comp. Bd. of Review,
547 A.2d 811, 813 (Pa. Cmwlth. 1988). Accordingly, the Referee in the instant
matter properly considered whether Claimant had a necessitous and compelling
reason for quitting, and the UCBR properly reviewed the Referee’s decision.
              Regarding the merits of Claimant’s appeal, Section 402(b) of the Law
states that an employee shall be ineligible for compensation for any week “[i]n which
h[er] unemployment is due to voluntarily leaving work without cause of a necessitous
and compelling nature[.]” 43 P.S. § 802(b). This Court has explained:

              Whether a claimant had cause of a necessitous and
              compelling nature for leaving work is a question of law
              subject to this Court’s review. A claimant who voluntarily
              quits h[er] employment bears the burden of proving that
              necessitous and compelling reasons motivated that decision.
              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

       5
          “[A]s long as [the UC Service Center] expressly ruled upon the issue, and the issue is
delineated in the [UC Service Center’s] determination notice, the referee may consider and rule
upon it even though [the appealing party] did not, by its appeal, intend to reopen inquiry into this
particular issue.” Wilder & Miller, P.C. v. Unemployment Comp. Bd. of Review, 525 A.2d 852, 855
(Pa. Cmwlth. 1987).

                                                 4
             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.

Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 227-28 (Pa.
Cmwlth. 2012) (citations omitted).
             Workplace harassment may be a circumstance that produces real and
substantial pressure to terminate employment. Danner v. Unemployment Comp. Bd.
of Review, 443 A.2d 1211 (Pa. Cmwlth. 1982). However, Pennsylvania law is clear
that “[m]ere dissatisfaction with one’s working conditions does not constitute cause
of a necessitous and compelling nature for terminating one’s employment.”
Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006). Moreover, “[p]ersonality conflicts, absent an
intolerable work atmosphere, do not amount to a necessitous and compelling cause
for leaving one’s employment.” Wert v. Unemployment Comp. Bd. of Review, 41
A.3d 937, 940 (Pa. Cmwlth. 2012).           This Court has ruled that resentment of
reprimand, personality conflicts or yelling may make a work environment
uncomfortable, but not necessarily intolerable. Ann Kearney Astolfi DMD PC. v.
Unemployment Comp. Bd. of Review, 995 A.2d 1286 (Pa. Cmwlth. 2010).
             At the Referee hearings, Claimant agreed that she voluntarily left her
employment, but “had extenuating circumstances to do so,” N.T. 8/8/17 at 9, and
claimed she tried to work with Employer to resolve her issues and exhausted her
alternatives. Claimant explained: “I didn’t want to stay at work with the conditions
of [the disciplinary] letter . . . I disagreed with the whole letter.” C.R. Item 12, Notes
of Testimony, August 23, 2017 (N.T. 8/23/17) at 6.
             Claimant admitted that, although she worked for approximately ten
months after receiving the disciplinary letter on June 13, 2016, she persisted in



                                            5
challenging the terms of the Agreement that resulted in her final warning. Based
upon the evidence presented at the hearings,6 the Referee concluded:

              [Claimant] argues that she quit employment due to a hostile
              work environment. [Claimant] failed to provide any
              competent evidence to demonstrate that she was subjected
              to a hostile work environment or intolerable working
              conditions.     [Claimant’s] testimony concerning her
              allegations that she was subjected to hostile working
              conditions including harassment and discrimination is
              not found credible. [Claimant] has failed to demonstrate
              cause of necessitous and compelling nature for leaving
              employment and has further failed to demonstrate that she
              made a reasonable effort to preserve her employment prior
              to resignation.

Referee Dec. at 3 (emphasis added). On appeal, the UCBR adopted the Referee’s
findings and conclusions, and affirmed the Referee’s decision, stating:

              [T]he determination made by the Referee is proper under
              the [Law]. The [UCBR] does not find [Claimant’s]
              testimony credible that she was experiencing
              harassment. [Claimant] testified that by her receiving
              instructions to stop requesting to reopen an already closed
              personnel issue, this amounted to harassment. [Claimant’s]
              disagreement with her [E]mployer amounted to mere
              dissatisfaction. [Claimant] did not have a necessitous and
              compelling reason to voluntarily leave work.

UCBR Order at 1 (emphasis added).

              All credibility determinations are made by the [UCBR].
              The weight given the evidence is within the discretion of
              the factfinder. The [UCBR] is the ultimate factfinder. The
              [UCBR] determined that Claimant voluntarily left h[er]
              employment [without a necessitous and compelling reason].

       6
         Claimant asserts that the Referee erred by not requiring Employer’s witnesses to produce
evidence that she failed to exhaust efforts to retain her employment. However, in order to prove
that she had a necessitous and compelling reason to quit her job, it was incumbent upon Claimant,
not Employer, to establish that she made reasonable efforts to preserve her employment. See
Middletown Twp. Accordingly, the Referee did not err in not requiring Employer’s witnesses to
produce such evidence.
                                               6
               A review of the record reveals that the [UCBR’s] findings
               were supported by substantial evidence.

Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 860 (Pa.
Cmwlth. 2004) (citations omitted). Here, because Claimant did not produce credible
evidence that “circumstances existed that produced real and substantial pressure [for
Claimant] to terminate [her] employment,” neither the Referee nor the UCBR needed
to further determine whether, inter alia, “[she] made a reasonable effort to preserve
her employment.”7 Middletown Twp., 40 A.3d at 228. In light of Claimant’s failure
to prove that intolerable circumstances existed in the first instance, she did not have a
necessitous and compelling reason to resign her employment and, thus, pursuant to
Section 402(b) of the Law, she is ineligible for UC benefits.8




       7
          The effort to preserve employment is but one of the four factors a claimant must prove to
establish a cause of a necessitous and compelling nature. Middletown Twp. Since the Referee and,
subsequently, the UCBR concluded that Claimant did not face real and substantial pressure to quit
in the first instance, they did not need to further determine whether Claimant exhausted her
alternatives before she resigned.
        8
          Claimant also argues that the Referee mistreated her at the hearings. “Claimant, however,
has waived this issue by failing to raise it within her petition for review, as well as her failure to
raise it within the Statement of Questions Involved section of her brief. See Pa.R.A.P. 1513(d),
2116[.]” O’Neill v. Workers’ Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50, 60 n.5 (Pa.
Cmwlth. 2011); see also McCall v. Unemployment Comp. Bd. of Review, 717 A.2d 623 (Pa.
Cmwlth. 1998).
        Even if the issue was not waived, Claimant specifically claims: “The [R]eferee interrupted
me repeatedly when I was providing instances of harassment and discrimination. He acted in a
hostile and belittling manner toward me. He cut me off even when I tried to answer his questions.”
C.R. Item 14, Claimant’s Pet. for Appeal to the UCBR at 9. Section 101.21(b) of the UCBR’s
Regulations provides: “Within the discretion of the tribunal, the parties shall be permitted to present
evidence and testimony which they believe is necessary to establish their rights.” 34 Pa. Code §
101.21(b). After careful review of the hearing transcripts, this Court finds that, although there were
times when the Referee limited Claimant’s testimony and cross-examination to the specific issues
raised in her appeal, there were no circumstances in which the Referee acted in a hostile or belittling
manner toward Claimant or denied her the opportunity to present her case. Rather, Claimant was
afforded a full and fair opportunity to present her appeal. Accordingly, Claimant’s contention is
without merit.
                                                  7
For all of the above reasons, the UCBR’s order is affirmed.


                            __________________________
                            ANNE E. COVEY, Judge




                             8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Margaret Mazur,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 291 C.D. 2018
                    Respondent         :


                                     ORDER

            AND NOW, this 7th day of September, 2018, the Unemployment
Compensation Board of Review’s February 28, 2018 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
