           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Intermediate Unit 1,                    :
                         Petitioner     :
                                        :
            v.                          :   No. 161 C.D. 2015
                                        :   Submitted: September 4, 2015
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :



BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: January 6, 2016

            Petitioner Intermediate Unit 1 (Employer) petitions for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed an Unemployment Compensation Referee’s (Referee) decision finding
RoseMarie Cosgray (Claimant) eligible for unemployment compensation benefits
because Claimant had a necessitous and compelling reason to leave her
employment. We now affirm.
            Claimant was employed by Employer as a part-time warehouse
foreperson. (Reproduced Record (R.R.) at 11a.) Claimant resigned from her
position on September 4, 2014.        (Id. at 12a, 42a.)      Claimant filed for
unemployment compensation benefits on September 9, 2014, explaining that she
had resigned from her position due to “transportation problems.” (Id. at 42a-43a.)
The Erie UC Service Center (Service Center) issued a determination finding
Claimant eligible for unemployment compensation benefits, because it determined
that Claimant had a necessitous and compelling reason for leaving her
employment.        (Id. at 1a-2a.)   Employer appealed the Service Center’s
determination, and a Referee conducted an evidentiary hearing.
             During the hearing before the Referee, Claimant testified that she
began working as a part-time warehouse foreperson for Employer’s Science
Matters program in 2007. (Id. at 11a-12a.) In August 2014, Employer relocated
Claimant’s place of employment from Washington, Pennsylvania, to Grindstone,
Pennsylvania, which Claimant felt was “too far of a distance with travel as well as
costs for a part-time job.” (Id. at 12a.) As a result of the relocation, Claimant’s
commute increased from twelve miles to thirty-three miles one way. (Id. at 26a.)
Claimant testified that she proposed several solutions to resolve the transportation
problems, including transferring to a new position closer to her home, working
longer days to decrease the number of days she would be required to come to
work, and receiving compensation from Employer to offset her travel costs. (Id. at
15a.) Claimant also investigated the option of using public transportation, but she
discovered that public transportation to Employer’s Grindstone location was not
available. (Id.)
             Employer presented the testimony of Donald Martin, Employer’s
Assistant Executive Director. Mr. Martin testified that Employer is a service
provider that operates as an intermediary between the Pennsylvania Department of
Education and local school districts. (Id. at 16a-17a.) Employer serves three
counties: Washington County, Greene County, and Fayette County. (Id.) Mr.
Martin explained that the Science Matters program was relocated to Grindstone so
as to add two additional classrooms in Washington for Employer’s Therapeutic


                                         2
Emotional Support Program. (Id. at 18a.) The Science Matters program was
moved to the Colonial School, which provides both alternative and special
education programs to students. (Id. at 18a-19a.) Mr. Martin explained that the
Science Matters program was moved to the Colonial School, because it was “a
more central location to service 25 [d]istricts in a three county area.” (Id. at 20a.)
Mr. Martin met with Claimant after Employer informed Claimant that the Science
Matters program was to be relocated. (Id. at 19a.) During the meeting, Claimant
purportedly told Mr. Martin that “she did not want to go into that building with
delinquent children there.” (Id.) Mr. Martin testified that other positions “came
available” in Washington, but none of these positions were discussed with
Claimant. (Id. at 27a.)
             Employer also presented the testimony of Jennifer Judge, Employer’s
Director of Human Services. Ms. Judge testified that Employer was unable to
accommodate Claimant’s request for a longer work day, because “[u]nder
[Employer’s] structure with [Employer’s] compensation with [Employer’s] policy,
a full[-]time day is consider[ed] an eight hour day.” (Id. at 22a.) Employer was
unable to provide Claimant with additional compensation, because, due to
Employer’s policies, Claimant was subject to a specific level of compensation
commensurate with her position. (Id.) Ms. Judge also testified concerning a
policy adopted in 2004 that applied to support employees, including Claimant. (Id.
at 23a-24a.) The policy provided that “[a]ssignment and transfer of [s]upport
employees shall be in accordance with the operational needs of . . . [Employer].”




                                          3
(Id. at 24a, 63a.)          Ms. Judge explained that employees were notified that
Employer’s policies were available on Employer’s web portal.1 (Id. at 24a.)
                 The Referee concluded that Claimant was eligible for unemployment
compensation benefits because Claimant’s transportation problems constituted a
necessitous and compelling reason for leaving her employment. In so doing, the
Referee made the following findings of fact:
                 1. The claimant was a part-time warehouse foreperson
                    for . . . [Employer] for approximately 7 years. The
                    claimant’s rate of pay was $20.60 per hour. The
                    claimant worked a minimum of 24 hours per week.
                    The claimant’s last day of work was September 4,
                    2014.
                 2. The claimant was advised that the employer was
                    moving the warehouse from the building in
                    Washington, PA to a more centrally located facility in
                    Grindstone, PA.
                 3. The claimant issued concerns she had regarding the
                    increase of travel to the new facility.
                 4. The claimant had a commute of approximately 12
                    miles from her home to the Washington, PA site. The
                    claimant determined that the commute to the
                    Grindstone facility would be approximately 45 miles.
                 5. The claimant suggested working longer days, but
                    fewer days per week, still working the minimum of 24
                    hours per week. The employer could not or would not
                    allow such change.


       1
           With respect to Employer’s transfer policy, Claimant testified:
       I’m not trying to say that I didn’t know the policy or that, you know, that I don’t
       have to transfer. My issue is just clear and simple. It’s far from my house and,
       you know, between the gas, the time, the wear and tear on the vehicle, for
       part-time it’s just not, it was just not to my benefit to travel that far.
(R.R. at 27a.)



                                                  4
              6. The employer did not have or offer another position to
                 the claimant within the same general geographic area
                 the claimant had worked.
              7. Continuing work was available only if the claimant
                 would transfer to the work site in Grindstone, PA.
(Id. at 30a.)     The Referee explained that Claimant attempted to resolve her
transportation problems, and, therefore, Claimant was eligible for unemployment
compensation benefits.
              Employer appealed to the Board, which affirmed the Referee’s
determination and adopted the Referee’s findings of fact and conclusions of law.
The Board noted that “[C]laimant credibly testified that the additional commute
would not have been financially feasible for a part-time job.”                  (Id. at 93a.)
Employer petitioned this Court for review, and Claimant intervened in this matter.
              On appeal,2 Employer argues that the Board capriciously disregarded
evidence that Claimant’s resignation based on transportation was pretextual,
because Claimant’s real reason for resigning her employment was that she did not
want to work in a building with juvenile delinquents. Employer also argues that
the Board erred in concluding that Claimant had a necessitous and compelling
reason to voluntarily quit her employment because: (1) Employer’s relocation of
the Science Matters program was reasonable; and (2) Claimant was precluded from
receiving unemployment compensation benefits due to her knowledge of
Employer’s transfer policy.



       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
            First, we address Employer’s argument that the Board capriciously
disregarded evidence that Claimant’s resignation was pretextual. Specifically, the
Employer contends that Claimant resigned due to her unwillingness to work at the
Colonial School rather than her transportation problems. “Capricious disregard of
evidence has been defined as a willful and deliberate disregard of competent
testimony and relevant evidence which one of ordinary intelligence could not
possibly have disregarded in drawing a conclusion.” Nat’l Keystone Prods. v.
Unemployment Comp. Bd. of Review, 458 A.2d 316, 317 (Pa. Cmwlth. 1983).
“When determining whether the Board capriciously disregarded the evidence, the
Court must decide if the Board deliberately disregarded competent evidence that a
person of ordinary intelligence could not conceivably have avoided in reaching a
particular result, or stated another way, if the Board willfully or deliberately
ignored evidence that any reasonable person would have considered to be
important.” Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156
n.4 (Pa. Cmwlth. 2007). “Disturbing an agency’s adjudication for a capricious
disregard of evidence is appropriate only where the factfinder has refused to
resolve conflicts in the evidence, has not made essential credibility determinations
or has completely ignored overwhelming evidence without comment.” Wise v.
Unemployment Comp. Bd. of Review, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015).
            Here, the Board did not capriciously disregard competent evidence
that Claimant quit due to her unwillingness to work at the Colonial School.
Rather, the Board explained that Claimant credibly testified that she voluntarily
resigned from her employment due to transportation problems. Although Mr.
Martin testified that Claimant told him that she did not want to work in a building
with “delinquent” children, the Board was free to accept Claimant’s testimony over


                                         6
that of Mr. Martin. See Duquesne Light Co. v. Unemployment Comp. Bd. of
Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994) (“Where there is a conflict in
testimony, credibility determinations and the resolution of evidentiary conflicts are
within the [Board’s] discretion and are not subject to reevaluation on judicial
review.”).       Thus, we conclude that the Board did not capriciously disregard
evidence in rendering its findings of fact.
                 Next, we will address Employer’s arguments that the Board erred as a
matter of law. Specifically, Employer argues that the Board erred in concluding
that Claimant had a necessitous and compelling reason to voluntarily quit her
employment because (1) Employer’s relocation of the Science Matters program
was reasonable and (2) Claimant had knowledge of Employer’s transfer policy.
Employer argues that its relocation of Claimant’s position was reasonable in order
to accommodate additional classrooms, and, therefore, Claimant cannot be entitled
to unemployment compensation benefits. Employer also argues that Claimant was
precluded from receiving unemployment compensation benefits due to her
knowledge of Employer’s transfer policy. Claimant counters that she established
cause of a necessitous and compelling nature to voluntarily resign her employment
because the change of the location of her employment resulted in insurmountable
transportation problems for her and she took reasonable steps to resolve the
transportation problems to no avail.
                 Section 402(b) of the Unemployment Compensation Law (Law)3
provides, in part, that a claimant shall be ineligible for compensation for any week


       3
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).



                                               7
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. Wasko v. Unemployment Comp. Bd. or Review, 488 A.2d 388,
389 (Pa. Cmwlth. 1985). A claimant who voluntarily quits her 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). A necessitous and
compelling cause for voluntarily leaving employment is one that “results from
circumstances which produce pressure to terminate employment that is both real
and substantial, and which would compel a reasonable person under the
circumstances to act in the same manner.”          Mercy Hosp. of Pittsburgh v.
Unemployment Comp. Bd. of Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995).
            Generally, 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
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. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261,
264 (Pa. Cmwlth. 2008). “Cause of a necessitous and compelling nature may arise
from domestic circumstances and need not be connected with or arise out of the
claimant’s employment.” Green v. Unemployment Comp. Bd. of Review, 529 A.2d
597, 598-99 (Pa. Cmwlth. 1987). Transportation problems may constitute cause of
a necessitous and compelling nature. Lee v. Unemployment Comp. Bd. of Review,
401 A.2d 12, 13 (Pa. Cmwlth. 1979).          A claimant’s transportation problems,


                                         8
however, “must be so serious and unreasonable as to present a virtually
insurmountable problem and the claimant must demonstrate that he or she took
reasonable steps to remedy or overcome the transportation problems prior to
severing the employment relationship.” Id.
               Thus, Employer’s focus on the reasonableness of its actions and
whether Claimant was aware of the possibility that her job could be relocated is not
relevant to our inquiry.        Employer may have been entirely reasonable in its
decision, and it may have informed Claimant of the possibility that her job may be
moved. The focus, however, is on whether, following the relocation of her job,
Claimant had necessitous and compelling reasons to resign voluntarily her
employment.4, 5

       4
         Employer notes that this Court has held “that an employer is entitled to modify the time,
place, and nature of the job originally assigned to an employee if the changes are reasonable.”
Donaldson v. Unemployment Comp. Bd. of Review, 496 A.2d 1370, 1371 (Pa. Cmwlth. 1985)
(emphasis added). Here, the “change” is requiring Claimant to work at a different job site that is
located further from her home. Employer does not argue that it is reasonable to require Claimant
to commute the extra distance. Rather, Employer focuses only on whether Employer’s decision
to relocate the workplace was reasonable, without any consideration of whether the change in the
location was reasonable as it relates to Claimant. In Donaldson, the issue before the Court was
whether a claimant who voluntarily resigned from employment rather than relocate himself and
his family more than one hundred miles away to Ohio had necessitous and compelling reasons to
voluntarily resign from his employment. We considered whether circumstances existed “which
produce[d] pressure to terminate employment that [was] both real and substantial, and which
would compel a reasonable person under the circumstances to act in the same manner.” Id. at
1371 (quoting Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 832-33 (Pa. 1977)).
In so doing, we did not focus on the employer’s reasons for transferring the claimant. Instead,
we focused on whether it was reasonable for the claimant to continue working for the employer
given the change in job location. We remanded the matter to the Board to determine whether the
claimant knew at the time that he took the job that he might have to relocate. Thus, our focus
was not on the reasonableness of the employer’s decision to relocate the job, but on whether it
was reasonable for the employer to require the claimant to relocate. Here, Employer’s focus on
the reasonableness of its decision to relocate the Science Matters program is misplaced.
(Footnote continued on next page…)

                                                9
(continued…)

        Such an approach is consistent with our analysis of whether an employer’s unilateral
change in the terms or conditions of a claimant’s employment constitutes necessitous and
compelling reasons for voluntarily resigning employment. We have held that “an employer’s
imposition of a substantial unilateral change in the terms of employment constitutes a
necessitous and compelling cause for an employee to terminate her employment.” Brunswick
Hotel and Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa.
Cmwlth. 2006). In analyzing the “change” in employment, we consider whether the change is
“so substantial as to warrant necessitous cause for terminating employment” based on the
circumstances of each case. Id. at 660. “[S]ubstantiality is measured by the impact on the
employee, and whether the change involves any real ‘difference’ in employment conditions.”
McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1272 (Pa. Cmwlth. 2003).
Moreover, the reasons for the change in employment terms and conditions are irrelevant, as “[i]t
is not a defense for the employer to merely establish that it had good reasons for the unilateral
change.” Chavez (Token) v. Unemployment Comp. Bd. of Review, 738 A.2d 77, 82 (Pa. Cmwlth.
1999), appeal denied, 761 A.2d 551 (Pa. 2000).
       5
          With regard to Employer’s argument that Claimant was precluded from receiving
unemployment compensation benefits due to her knowledge of Employer’s transfer policy,
Employer refers to what it dubs as a “prior knowledge rule,” purportedly established by this
Court’s decisions in Cardwell v. Unemployment Compensation Board of Review, 465 A.2d 145
(Pa. Cmwlth. 1983); Donaldson; and Thomas v. Unemployment Compensation Board of Review,
560 A.2d 922 (Pa. Cmwlth. 1989). First, it does not appear that the Court has adopted a “prior
knowledge rule,” and, even if we had, the cases cited by Employer are easily distinguishable
from the instant matter.
        In both Cardwell and Thomas, the nature of the claimants’ employment was transient and
involved significant travel on a regular basis to distant job sites. In Cardwell, we held that “the
only way a claimant can overcome such an admission is to show a change in his job conditions
or a deception by the employer which causes him to be unaware of conditions at the time he
accepts the job which later become onerous.” Cardwell, 465 A.2d at 147. In Thomas, we
similarly concluded that the claimants “failed to show that the distance to the new work site is so
out of proportion to the original travel conditions as to constitute a material change necessitating
their quit.” Thomas, 560 A.2d at 924. Here, Claimant’s position with Employer was not, by its
nature, transient. Claimant was employed by Employer for seven years, during which time she
commuted a total distance of twelve miles one way from her home to Employer’s workplace.
Unlike Cardwell and Thomas, Claimant commuted to one fixed location throughout the duration
of her employment with Employer. Cardwell and Thomas are, therefore, distinguishable from
the instant matter.
(Footnote continued on next page…)

                                                10
               Here, there is no dispute that the relocation of Claimant’s position
increased Claimant’s commute by sixty-six miles total per work day. As the Board
noted, the Claimant credibly testified that such an increase in her commute was not
feasible considering the part-time nature of her employment.                    Moreover, the
Referee, noting that a claimant “need only take reasonable steps to overcome a
transportation problem,” found that Claimant attempted to remedy her problems,
including attempting to find suitable public transportation and suggesting that
Employer increase the number of hours she would work per day, but her efforts
were unsuccessful. (R.R. at 31a (quoting J.C. Penney Co., Inc. v. Unemployment
Comp. Bd. of Review, 457 A.2d 161, 163 (Pa. Cmwlth. 1983)). Thus, the Board
did not err in concluding that Claimant had necessitous and compelling reasons for
voluntarily resigning from her employment based upon the findings of
insurmountable transportation problems and reasonable efforts on the part of
Claimant to resolve the problems.6

(continued…)

        Donaldson is also distinguishable. Donaldson did not involve a mere increase in travel
distance to a place of employment. Rather, it involved a claimant’s temporary reassignment to
Kentucky for thirty-five days followed by a permanent reassignment to Ohio. The instant matter,
however, does not concern Claimant’s potential relocation of her residence. There is no question
that Claimant was not required to move to Grindstone. Rather, the question in the instant matter
is whether Claimant’s transportation problems constituted a necessitous and compelling reason
for her to voluntarily resign from her part-time position. See, e.g. J.C. Penney Co., Inc. v.
Unemployment Comp. Bd. of Review, 457 A.2d 161, 162-63 (Pa. Cmwlth. 1983).
       6
         Within this argument, Employer argues that the Board’s determination “establishes an
alarming precedent for [Employer] and other state educational organizations whose geographic
regions include multiple counties.” (Employer Br. at 13.) Specifically, Employer contends that
Employer would ultimately “be forced to hire employees based on their locations rather than
their competency.” (Id. at 14.) This argument is speculative in that it presumes that the majority
of employees faced with an increased commute will elect to file for unemployment
(Footnote continued on next page…)

                                               11
              Accordingly, we affirm the Board’s order.




                                   P. KEVIN BROBSON, Judge




(continued…)

compensation benefits instead of continuing their employment with Employer. As noted above,
Claimant testified that it was not economically feasible for her to continue her part-time
employment after her position was relocated. It may remain feasible for other employees to
continue working for Employer, even if their travel time increases. We, therefore, reject this
argument.



                                             12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Intermediate Unit 1,                  :
                       Petitioner     :
                                      :
            v.                        :   No. 161 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER


            AND NOW, this 6th day of January, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
