               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle A. Bankes,                            :
                              Petitioner       :
                                               :
                 v.                            :   No. 184 C.D. 2014
                                               :   Submitted: July 18, 2014
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
        HONORABLE MARY HANNAH LEAVITT, Judge
        HONORABLE P. KEVIN BROBSON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: August 27, 2014

                 Petitioner Michelle A. Bankes (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed the Unemployment Compensation Referee’s decision, which denied
Claimant unemployment compensation benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law),1 relating to voluntary separation
without cause of a necessitous and compelling nature. For the reasons set forth
below, we affirm.
                 Claimant filed for unemployment compensation benefits after
voluntarily quitting her position as a part-time therapeutic staff support at Jeffrey

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
Fremont Ph. D. (Employer). The Scranton UC Service Center (Service Center)
issued a Notice of Determination, finding Claimant ineligible for benefits under
Section 402(b) of the Law. (Reproduced Record (R.R.), Item No. 2.) The Service
Center reasoned that Claimant failed to exhaust all other alternatives prior to
voluntarily quitting. (Id.) Claimant appealed the Service Center’s determination,
and a Referee conducted an evidentiary hearing.
             Claimant testified that she worked between 30 and 35 hours per week
for Employer. (R.R., Item No. 4 at 13a.) Her normal work hours were from
9:00 a.m. to 3:00 p.m. (Id. at 16a.) Claimant explained that her stepbrother
informed her that he would no longer be able to watch her children while she
worked, and, consequently, Claimant informed Judy Simon-Long (Behavior
Specialist Consultant for Employer) that she could not continue working. (Id.
at 14a-16a.) When the Referee asked whether she looked into possibly taking her
children to daycare, Claimant said she did not, because she used to work at a
daycare, and she knew that daycare was “pretty expensive.” (Id. at 17a.) Claimant
stated that the cost of daycare would cost around $500 a month per child, and she
noted that her stepbrother watched her children for free. (Id.) She explained that
her husband was unavailable to watch the children because he also works the day
shift, and other family members were also unavailable to watch her children. (Id.)
Claimant testified that after she spoke with Ms. Simon-Long, Employer did not
contact her or offer any alternatives in order to accommodate Claimant’s new
availability. (Id. at 14a.) Claimant also testified that she was aware that Employer
did not offer a second or third shift. (Id. at 15a.)
             Jane Andrews, Practice Manager for Employer, was Employer’s first
witness. Ms. Andrews testified that the availability of work hours is “all case


                                            2
dependent.”     (Id. at 19a.)     When asked by Claimant’s counsel whether
Ms. Andrews ever contacted Claimant, Ms. Andrews stated that she did not,
explaining:
              It was a verbal notice given to Judy [Simon-Long] who
              passed it along to me. [Therapeutic staff support]
              workers don’t stay in their positions for long periods of
              time. They’re usually teachers, people with a psychology
              major who are in [therapeutic staff support] because they
              can’t find a job and they’re here until they find better
              work. I know that. So I don’t take it personally when
              someone gives their notice. I assume—and we all know
              what happens if we assume—but I assume they’re going
              on to better things.
                     ....
              [W]hen someone gives their [sic] notice I don’t feel it’s
              my job to find out why. She didn’t come in with a
              complaint.

(Id. at 20a-21a.)
              Ms. Simon-Long also testified on behalf of Employer. She testified
that after Claimant informed her that she could no longer work, Ms. Simon-Long
told her to contact the office to see if there were alternative hours available. (Id.
at 22a.) Contrary to what Ms. Andrews testified to, Ms. Simon-Long stated that
there are sometimes different hours available based on changes in client
availability. (Id.) Ms. Simon-Long stated that she was not positive as to whether
Claimant ever contacted the office. (Id. at 23a-24a.)
              Following the hearing, the Referee issued a decision and order
affirming the Service Center’s determination. (R.R., Item No. 9.) The Referee
made the following findings of fact:
              1. The claimant was employed by Jeffrey Fremont PHD
                 as a therapeutic staff support with a final rate of pay
                 of $15.50 per hour on a part-time basis with the

                                          3
                claimant working between 30 and 35 hours per
                week[,] having begun her employment on December
                10, 2012.

             2. The claimant’s last day of work was August 23, 2013.

             3. On August 5, 2013, the claimant told her supervisor[,]
                the behavioral services consultant[,] that she had lost
                her babysitter and that she was quitting her
                employment.

             4. The behavioral services consultant told the claimant
                she should speak with Jane Andrews[,] the practice
                manager.

             5. At the time that the claimant informed her supervisor,
                the behavioral services consultant, that she had a
                childcare issue, she also told her she was quitting her
                employment.

             6. The claimant did not discuss the situation with the
                practice manager who acts as the HR person for the
                employer.

             7. The claimant did not exhaust all alternatives prior to
                quitting.

(R.R., Item No. 9.) The Referee determined that Claimant voluntarily terminated
her employment and failed to show cause of a necessitous and compelling nature
for doing so. (Id.) The Referee explained that “it is the responsibility of the
claimant to take steps to maintain the employer/employee relationship[,] and
simply telling the employer that she lost her babysitter and that she was quitting as
a result of it does not meet the requirements for maintaining the
employer/employee relationship.” (Id.)
             Claimant appealed to the Board, which affirmed the Referee’s
decision and order. (R.R., Item No. 14.) In so doing, the Board adopted and
incorporated the Referee’s findings and conclusions, adding:
                                         4
              [T]he Board finds that the claimant quit her employment
              due to a change in childcare. The Board also finds that
              the claimant did not investigate other alternatives
              including the cost of daycare, the cost of other
              babysitters, or whether short-term leave was available to
              her. Further, the claimant presented insufficient credible
              evidence to show that any other childcare arrangement
              was unaffordable. Finally, the Board finds credible the
              employer’s testimony that it informed the claimant that
              she should contact the practice manager to ascertain
              whether other shifts, work schedules or decreased hours
              would be available to her. However, the claimant did not
              contact the practice manager and did not request an
              accommodation.

(R.R., Item No. 14.) Claimant now petitions this Court for review.
              On appeal,2 Claimant essentially argues that the Referee’s findings of
fact, as adopted and incorporated by the Board, were not supported by substantial
evidence of record. Specifically, Claimant challenges finding of fact number
seven, which provides: “The claimant did not exhaust all alternatives prior to
quitting.” (R.R., Item No. 9.) In support of her argument, Claimant states that
Employer never contacted her in an effort to provide her with alternative work
options.    Further, Claimant contends that she has provided a necessitous and
compelling reason for terminating her employment as evidenced by “the
employer[’s] refus[al] to review and provide any alternative in accordance with
testimony that they did not care to work with the Petitioner under any
circumstance.” (Petitioner’s Br. at 13.)


       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                               5
            Section 402(b) of the Law provides, in part, that a claimant shall be
ineligible for compensation for any week in which the claimant’s “unemployment
is due to voluntarily leaving work without cause of a necessitous and compelling
nature.” 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. Brunswick Hotel
& Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657,
661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits his employment “bears
the burden of proving that necessitous and compelling reasons motivated that
decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126,
1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). 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 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 employment.          Procito v.
Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).
            Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in a light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The


                                        6
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. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984).
            In an unemployment compensation case, it is well-settled that the
Board is the ultimate fact finder and is, therefore, entitled to make its own
determinations as to witness credibility and evidentiary weight.          Peak v.
Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board
is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment
Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). “Questions of
credibility and the resolution of evidentiary conflicts are within the sound
discretion of the Board, and are not subject to re-evaluation on judicial review.”
Peak, 501 A.2d at 1388.
            Here, the record, including Claimant’s own testimony, reveals that she
did not make a reasonable effort to preserve her employment. Ms. Simon-Long
told Claimant that she should look into the possibility of only working for a few
hours during the day, but Claimant provided no evidence showing that she did so.
Claimant asserted that she felt that she “[had no] choice but not to go to work,”
because Employer never contacted her to make any accommodations. (R.R., Item
No. 4 at 14a.) Employer’s failure to contact Claimant in order to provide her with
alternative options, however, is immaterial for two reasons: (1) the burden is on
Claimant, not Employer, to make a reasonable effort to preserve her employment;
and (2) the Board found Employer credible in its testimony that Ms. Simon-Long
told Claimant to contact Employer’s office to “ascertain whether other shifts, work
schedules or decreased hours would be available to her,” but Claimant failed to do
so. (R.R., Item No. 8.) Essentially, Employer, through Ms. Simon-Long, did


                                        7
suggest a possible alternative to Claimant, but Claimant chose not to pursue it.
Thus, a review of the record as a whole and in a light most favorable to Employer,
as the prevailing party, shows that substantial evidence does support the Referee’s
finding, as adopted by the Board, that Claimant failed to exhaust all alternatives
prior to quitting. Thus, Claimant did not make a reasonable effort to preserve her
employment.     Claimant, therefore, failed to show that she terminated her
employment for a cause of a necessitous and compelling nature.
            Accordingly, we affirm the order of the Board.




                               P. KEVIN BROBSON, Judge




                                        8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle A. Bankes,                  :
                      Petitioner     :
                                     :
           v.                        :   No. 184 C.D. 2014
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :


                                   ORDER


           AND NOW, this 27th day of August, 2014, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                            P. KEVIN BROBSON, Judge
