           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clair L. Platt,                :
                               :
                    Petitioner :
                               :
                 v.            : No. 1497 C.D. 2016
                               : Submitted: February 17, 2017
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: April 4, 2017

              Clair L. Platt (Claimant) petitions for review of the August 12, 2016
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
beginning with the week ending April 16, 2016. We affirm.
              Claimant began working for Laurel Arts (Employer) on May 1, 2002.
On April 6, 2016, Employer suspended Claimant for refusing to sign two employee



       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 his unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.”
counseling reports. Claimant was to return from his suspension on April 13, 2016.
Although he did not formally resign, he did not return to work.
             The local job center determined that Claimant was ineligible for
benefits under Section 402(b). Claimant appealed, and a referee held a hearing on
June 28, 2016. Claimant participated with the benefit of counsel but Employer did
not attend the hearing.
             Claimant testified that he worked for Employer for 15 years, most
recently as a maintenance supervisor. Claimant said that Employer’s executive
director suspended him for refusing to sign two employee counseling reports.
Reproduced Record (R.R.) at 81. Claimant explained that he refused to sign the
reports because one falsely stated that he took vacation leave without notice and
the other falsely stated that he failed to submit a cost comparison of supplies he
uses. Id.
             Claimant stated that the executive director would scream at him and
that she had been angry and short with him at times.              However, Claimant
acknowledged that he had no prior counseling reports or other employment issues
during the 15 years he worked for Employer. He also testified that he and the
executive director had gotten along until July of the previous summer, when she
accused him of favoring a particular beverage supplier. Claimant said that he felt
he could not return to work because the executive director had made false
statements about him and told board members that she was afraid of him, and he
feared that she would level additional false accusations against him and cause
further damage to his reputation. R.R. at 81-84.
             Claimant stated that, during his suspension, he discussed his situation
with members of Employer’s board of directors but was unable to arrange a formal


                                         2
meeting or have the matter placed on the agenda for the board’s next meeting.
R.R. at 82, 84-87. However, Claimant stated that Employer ultimately agreed not
to challenge his claim for unemployment. R.R. at 83.
              The referee observed that the counseling reports Claimant refused to
sign included a statement that the employee’s signature did not imply agreement
with the evaluation. R.R. at 24, 25. The referee also noted that Claimant never
advised Employer that he did not intend to return to work after his suspension
ended. The referee concluded that Claimant was ineligible for benefits under
Section 402(b) of the Law, beginning with compensable week ending April 16,
2016, and thereafter.
              Claimant appealed to the Board, asserting that he was constructively
discharged by virtue of a hostile work environment.2                 The Board found that
Claimant’s testimony was credible to establish the following relevant facts.3
Claimant refused to sign two disciplinary forms because he believed that the
underlying accusations were false. Findings of Fact Nos. 2-3. Consequently,
Employer suspended Claimant on April 6, 2016. Finding of Fact No. 4. While
Claimant was suspended, he attempted to discuss the situation with Employer’s
board of directors, to no avail. Finding of Fact No. 6. Claimant chose not to return
to work and voluntarily terminated his employment on April 13, 2016, because he

       2
         For purposes of unemployment compensation, when the employer uses language that
possesses the immediacy and finality of a firing, an employee’s resignation may be interpreted as
a discharge. Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770, 772 (Pa.
Cmwlth. 1996).

       3
          The Board is the factfinder in unemployment compensation cases, with exclusive
authority over questions of witness credibility and evidentiary weight. Wise v. Unemployment
Compensation Board of Review, 111 A.3d 1256, 1261-62 (Pa. Cmwlth. 2015).



                                               3
feared additional allegations could be brought against him by Employer. Findings
of Fact Nos. 7-8.
             Finding no indication in the record that Claimant resigned to avoid
imminent discharge, the Board concluded that the doctrine of constructive
discharge was inapplicable. The Board also concluded that Claimant’s conduct in
leaving his job was not reasonable under the circumstances. Thus, the Board
affirmed the referee’s decision and held that Claimant was ineligible for benefits
under Section 402(b) of the Law. Claimant now appeals to this Court.4
             In order to be eligible for benefits, a claimant who voluntarily
terminates employment must demonstrate that he had necessitous and compelling
cause to do so. Dopson v. Unemployment Compensation Board of Review, 983
A.2d 1282, 1284 (Pa. Cmwlth. 2009). To establish necessitous and compelling
reason for leaving his employment, the claimant must show circumstances that
produced real and substantial pressure to terminate employment and would compel
a reasonable person to act in the same manner; he must also show that he acted
with ordinary common sense and made a reasonable effort to preserve his
employment. Mathis v. Unemployment Compensation Board of Review, 64 A.3d
293, 294-95 (Pa. Cmwlth. 2013). Whether a claimant had a necessitous and
compelling reason to voluntarily quit his employment is a question of law subject
to appellate review. Middletown Township v. Unemployment Compensation Board
of Review, 40 A.3d 217, 227 (Pa. Cmwlth. 2012).


      4
          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).



                                            4
              Claimant argues that he had good cause to voluntarily terminate his
employment because Employer’s executive director made false accusations that
she repeated to third parties, resulting in a hostile work environment.5
              However, based on the evidence and arguments presented to the
Board, the Board found that the reason Claimant chose not to return to work and
voluntarily terminated his employment was that he feared additional allegations
could be brought against him by Employer. Findings of Fact Nos. 7-8. Claimant
does not challenge these findings, which are supported by his credited testimony,
and therefore these findings are conclusive on appeal. Salamak v. Unemployment
Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
              We have previously held that a claimant’s speculative fears are
insufficient to establish that a claimant has no other real choice than to leave his or
her employment. In Green Tree School v. Unemployment Compensation Board of
Review, 982 A.2d 573 (Pa. Cmwlth. 2009), the claimant was the director of
education at a school for children with autism and emotional disturbances. The
claimant asked the school’s board of directors to reconsider its decision to
eliminate the position of behavior management coordinator, which was held by the
claimant’s life partner.       In making this request, the claimant asserted that
eliminating the position endangered the children and the staff. The school’s board



       5
          In his brief, Claimant further alleges that the executive director repeatedly yelled,
screamed, used vulgar language, and put undue workloads on him. We note many of the factual
assertions in Claimant’s brief are not supported by the record, notwithstanding Claimant’s
citations to the hearing transcript, and, therefore, this Court may not consider them. “An
appellate court may consider only the facts which have been duly certified in the record on
appeal.” AT&T v. Workers’ Compensation Appeal Board (DiNapoli), 728 A.2d 381, 385 n.2
(Pa. Cmwlth. 1999) (citing Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974)).


                                              5
of directors declined to reconsider its decision and accepted the claimant’s
resignation.
               A referee determined that the claimant had necessitous and
compelling reason to leave her employment, and the Board affirmed. The Board
held that the claimant was not ineligible for benefits under Section 402(b) of the
Law because her safety concerns regarding the elimination of the position were
real.
               On appeal, this court first stated that the Board erred in focusing on
whether the claimant’s belief was genuine. We explained that the applicable test
was “whether the claimant has demonstrated that the workplace environment has
placed ‘real,’ i.e., actual and extreme, pressure on the claimant,” Green Tree
School, 982 A.2d at 578, and concluded that the speculative nature of the
claimant’s concerns regarding the safety of students and staff did not constitute a
compelling reason for her to resign. We also held that the claimant failed in her
duty to preserve her employment relationship, noting that while she asked the
school’s board of directors to revisit its decision, she did not wait to see how the
change in staffing would work out.          Accordingly, we reversed the Board’s
decision.
               As in Green Tree School, Claimant did not establish that his fears of
additional accusations were more than speculative.           Additionally, although
Claimant unsuccessfully sought assistance from Employer’s board of directors
during his suspension, he did not inform Employer of his decision not to return to
work; therefore, like the claimant in Green Tree School, he failed to make a
reasonable effort to preserve his employment. Because Claimant’s reasons for
resigning his employment were speculative and he did not take reasonable steps to


                                           6
preserve his employment, the Board properly held that he is ineligible for benefits
under Section 402(b) of the Law.
            Accordingly, we affirm.




                                      MICHAEL H. WOJCIK, Judge




                                        7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clair L. Platt,                        :
                                       :
                       Petitioner      :
                                       :
                  v.                   : No. 1497 C.D. 2016
                                       :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                                       :
                       Respondent      :


                                    ORDER


              AND NOW, this 4th day of April, 2017, the order of the
Unemployment Compensation Board of Review, dated August 12, 2016, is
affirmed.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
