           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan Wells,                   :
                               :
                    Petitioner :
                               :
            v.                 : No. 595 C.D. 2019
                               : Submitted: September 20, 2019
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION
BY JUDGE WOJCIK                                                  FILED: July 10, 2020


              Susan Wells (Claimant) petitions pro se for review of the April 18, 2019
order of the Unemployment Compensation Board of Review (Board), which let
stand as final a referee’s determination that Claimant is ineligible for unemployment
compensation (UC) benefits under Section 402(b) of the Unemployment
Compensation Law (Law)1 because she voluntarily quit her job without a necessitous
and compelling reason. For the reasons that follow, we vacate and remand to the
Board for consideration on the merits.



       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 her unemployment is due to voluntarily leaving work without a cause of a
necessitous and compelling nature.
                  Claimant was employed as a full-time program manager for Highmark
Health (Employer) from May 2016, until November 7, 2018. When she resigned
from her position, Claimant’s final rate of pay was $133,800.00 annually plus
bonuses. Claimant applied for UC benefits. The local service center determined
that she was ineligible because she voluntarily quit her job without a necessitous and
compelling reason. Claimant appealed the notice of determination, and a referee
held a hearing.
                  Employer failed to appear at the hearing. Claimant, represented by
counsel, testified that prior to June 2018, while her supervisor was Employer’s vice
president, she had received excellent performance reviews. N.T. 1/31/19 at 5.2 In
June 2018, Claimant began reporting to Employer’s director of operations. Id.
Claimant testified that she received a negative review from the director of operations
in September 2018. Id. Claimant disagreed with the review and refused to sign it.
Id. at 6.
                  Claimant testified that, on November 7, 2018, her new supervisor
stopped her on her way to a meeting and presented her with two options: (1) resign
from her position and receive her salary through the end of the month; or (2) be
placed on a corrective action plan with work restrictions. N.T. 1/31/19 at 5. Under
the corrective action plan, Claimant would be unable to interview for internal
positions with Employer; she would be required to work nine-hour days; and she
would lose her work from home privileges. Id. Claimant was given 24 hours to
make a decision. Id. Claimant was then asked to turn in her laptop and badge and
to clean out her desk, after which she was sent home for the day. Id. Claimant
testified:


       2
            “N.T. 1/31/19” refers to the transcript of the January 31, 2019 Referee’s hearing.
                                                   2
[Claimant’s Counsel] You’ve already discussed that there
were two options presented to you. You did make the
decision to terminate your employment voluntarily,
correct?

[Claimant] That is correct.

[Claimant’s Counsel] Why did you ultimately decide to do
that?

[Claimant] There were multiple reasons. I was guaranteed
a month’s salary. My family needs my salary to pay our
monthly bills. I could continue to pursue the internal
opportunities which even as of current [sic] I’m being
considered for three of them so I wanted to continue my
upward mobility and my success within the company. I
knew that if I stayed on the corrective action I would
ultimately be terminated and when you look for new
opportunities the first thing you’re asked is have you ever
been terminated and that certainly eliminates you from
pursuing other opportunities within Highmark.

[Claimant’s Counsel] Were any of the actions that were
taken by [your supervisor] on November 7th indicative to
you as to whether or not you would be continuing to
(inaudible).

[Claimant] Absolutely I did not feel welcome particularly
when my laptop was taken from me and I had meetings
scheduled over the next several months. My badge was
taken from me. I was not allowed to stay onsite. I had to
clean out my desk and I was asked to leave the premises.
I certainly felt that I was not welcome back and to continue
in that role.

[Referee] So Ms. Wells I understand he’s taken your
laptop, he’s told you if you stayed on there would be
corrective action, you would have to work nine hour days,
you wouldn’t be allowed to work from home and you
would be eliminated from applying for other jobs.

[Claimant] Exactly and as well as continuing with the
interviews I had.
                              3
             [Referee] So at that point you believed this gentleman’s
             main goal was going to be to terminate your employment
             eventually?

             [Claimant] Absolutely.

             [Referee] But at that time you were not being terminated
             but you would have been placed on a corrective action,
             correct?

             [Claimant] That is correct.
Id. at 7-8 (emphasis added).
             After considering the testimony and documentary evidence, the referee
found Claimant to be credible but determined that she was ineligible for UC benefits
under Section 402(b) of the Law. Referee’s 2/22/2018 Decision at 1-2. The referee
found that Claimant “chose to resign to preserve her opportunities for other
positions, and to avoid having a discharge on her employment record.” Id. at 3.
Claimant appealed to the Board.
             Initially, the Board’s Chairman indicated that he could not participate
in the Board’s disposition of the appeal due to a conflict of interest. Additionally,
the Board noted that, due to a vacancy on the three-member panel and the recusal, it
lacked a quorum to adjudicate the appeal. As a result, the Board issued an order in
the name of both the Chairman and another Board Member, which stated that the
referee’s decision would stand as final.
             In relevant part, the Board’s order states:

                   WHEREAS, because of a conflict of interest, Board
             Chairman Richard Bloomingdale could not participate in
             the Board’s decision; and

                    WHEREAS, the remaining Board Member does not
             constitute a quorum.


                                           4
                                                    ***

                                               ORDER

                      The decision of the Referee stands as final.

                      UNEMPLOYMENT COMPENSATION BOARD
                      OF REVIEW

                      Richard W. Bloomingdale, Chairman

                      Keren Putnam, Member
Board 4/18/19 Decision at 1. Claimant then petitioned this Court for review of the
Board’s order.
               On appeal,3 Claimant contends that the referee erred in determining she
did not have a necessitous and compelling reason to voluntarily quit her job.
Claimant argues that she could not work under the conditions imposed by the
corrective action plan and that she wanted to maintain her clean employment record.
               Preliminarily, we address the unusual procedural posture of this case.
The Board, lacking a quorum to issue an effective determination on the merits of her
appeal, let the referee’s decision stand as final. Section 203(a) of the Law provides
that “two members of the [Board] shall be a quorum, and no action of the [Board]
shall be valid unless it shall have the concurrence of at least two members.” 43 P.S.
§763(a) (emphasis added).
               However, the Law and the Board’s regulations are silent as to how the
Board should proceed in the absence of a quorum. Section 203(d) of the Law states,
in pertinent part:



       3
         Our scope 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. 2 Pa. C.S. §704.
                                                5
             Any . . . hearing or appeal which the [Board] has power to
             undertake, hold, hear or determine, may be undertaken,
             held or heard by or before any one or more of the members
             of the [Board], but any determination, ruling or order of a
             member or members upon any such . . . hearing or appeal
             undertaken, held or heard by him or them, shall not
             become and be effective until approved and confirmed by
             at least a quorum of the [Board].

43 P.S. §763(d) (emphasis added).
             Based on the foregoing, we conclude that the rule of necessity requires
the Board to consider and act on a determination of the merits of Claimant’s appeal
before allowing the referee’s decision to become final. The rule of necessity
originates from the common law principle that when all members of a tribunal, or so
many that there is not a quorum, are subject to recusal, the tribunal must consider
the case despite the personal interest or bias of its members, where otherwise the
agency could not carry out its duties and the litigants would be denied a decision in
the matter. Henderson v. Unemployment Compensation Board of Review, 77 A.3d
699, 717 (Pa. Cmwlth. 2013); Stroudsburg Area School District v. Kelly, 701 A.2d
1000, 1003 (Pa. Cmwlth. 1997); Siteman v. City of Allentown, 695 A.2d 888, 891-
92 (Pa. Cmwlth. 1997).
             In Henderson, the claimant was a former referee hired by the
Pennsylvania Department of Labor and Industry. The claimant argued that the
Board abused its discretion by refusing to recuse entirely from the appeal because
the Board, as her employer, was interested in the claim. This Court found that the
Board was not claimant’s employer and was not interested in the claim. Further, we
held that the rule of necessity prevented the recusal of all members of the Board
because it is statutorily bound to carry out its duties and render a decision in the case.
Despite the claimant’s suggestion to the contrary, we observed that there is no other
                                            6
individual or body authorized by statute or otherwise permitted by law to hear an
unemployment compensation appeal.
             Like Henderson, the rule of necessity requires the Board to consider the
appeal in this case prior to deciding to affirm, modify, reverse or let stand as final
the referee’s decision. Henderson.
             Accordingly, we vacate the Board’s order and remand for consideration
of the appeal on the merits.




                                       MICHAEL H. WOJCIK, Judge




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan Wells,                   :
                               :
                    Petitioner :
                               :
            v.                 : No. 595 C.D. 2019
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                                 ORDER


            AND NOW, this 10th day of July, 2020, the Order of the Unemployment
Compensation Board of Review, dated April 18, 2019, is VACATED, and this
matter is REMANDED to the Board for proceedings consistent with the foregoing
opinion.


            Jurisdiction is RELINQUISHED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
