            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stacy Snyder,                                  :
                              Petitioner       :
                                               :
                 v.                            :   No. 737 C.D. 2019
                                               :   Submitted: November 22, 2019
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: June 8, 2020


       Petitioner Stacy Snyder (Claimant), pro se, petitions for review of an order of
the Unemployment Compensation Board of Review (Board). The Board affirmed a
decision of the Unemployment Compensation Referee (Referee), thereby denying
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.




       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
      Claimant     applied     for   unemployment      compensation      benefits    on
December 12, 2018, after separating from her position as a home health aide at
Family Home Medical Support (Employer). (Certified Record (C.R.), Item No. 1
at 1.) The Altoona UC Service Center (Service Center) determined that Claimant
was ineligible for unemployment compensation benefits for the waiting week ending
December 22, 2018. (C.R., Item No. 4 at 1.) Claimant appealed the Service Center’s
determination, and a Referee conducted a hearing. (C.R., Item Nos. 5, 8.)
      At the outset of the hearing, the Referee informed both parties of their rights
to be represented by an attorney or non-legal advisor, to question the other party and
witnesses, and to present evidence; both parties indicated that they understood and
were aware of their rights. (C.R., Item No. 8 at 2.) In addition, the Referee identified
and entered several documents into the record, including the Notice of Hearing. (Id.)
The Notice of Hearing specifically communicated to Claimant the issues to be
considered before the Referee, the instructions on how to participate in the hearing,
the purpose of the hearing, and Claimant’s rights—i.e., the right to present her own
testimony, evidence, and witnesses, to question the opposing parties and opposing
witnesses, and to be represented by an attorney or other advocate. (C.R., Item
No. 7 at 1-3.)   Furthermore, the Notice of Hearing informed Claimant of her
responsibility to organize the facts and evidence relating to her appeal before the
Referee by gathering any relevant documents and having individuals testify on her
behalf at the hearing. (Id.)
      When Claimant attempted to object to certain text messages being admitted
into the record, the Referee informed her that she must have a “legal reason” to
object to the messages and any “belief” held by her is characterized as testimony and
can be given when she testifies later in the hearing. (C.R., Item No. 8 at 3.) At this


                                           2
point, the Referee explained to the parties the legal issues present in the case and
how the hearing would proceed. (Id.) Both parties communicated to the Referee
that they understood how the proceedings would unfold. (Id. at 4.)
      Claimant testified that she last worked for Employer as a Home Health Aide
on November 20, 2018, and she resigned on November 30, 2018. (Id.) Over the
course of her employment, Claimant alleged that she routinely changed her
availability to work, Employer scheduled her to work during times when she was
unavailable, and Employer made her feel uncomfortable at work. (Id. at 4, 7.)
Employer scheduled Claimant to work on November 17, 2018, a date and time which
Claimant had previously indicated that she was unavailable to work because she did
not have childcare during that period of time. (Id. at 6-7, 9.) Claimant notified
Employer’s on-call personnel that she was unable to work, and Employer found
someone to cover for Claimant. (Id. at 6.) Nevertheless, Claimant went to the
client’s house anyway. (Id. at 6-7.) Claimant testified that the employee covering
Claimant’s shift and Employer’s manager
             made a total fool out of me at the client’s house, trying to
             argue with me; telling me I need to go home. The position
             was filled. And it wasn’t filled. The girl that was there,
             said that, [“]I’m leaving.[”] And, I told my boss[,] [“]I’m
             leaving at 12[”] and all’s [sic] they do is [sic] text each
             other and we’re not even supposed to be using a cell
             phone. A boss should know that. And, she’s going in and
             out of the house, texting, and just made me feel very
             uncomfortable.
(Id. at 6.) After the Referee asked Claimant if she had any additional testimony
regarding her separation from employment, Claimant responded: “I didn’t feel
comfortable enough working there anymore and . . . felt like people were out to get
me.” (Id. at 6-7.) With assistance from the Referee, Claimant entered into the record
a letter, written by her mother, that allegedly illustrates that Claimant’s boss asked

                                          3
Claimant to have Claimant’s mother babysit Claimant’s children. Claimant also
entered into the record the December availability calendar, which Claimant provided
to Employer to show what days and times she was available for work. (Id. at 7-8.)
       After Employer’s representatives elected not to cross-examine Claimant, the
Referee asked Claimant several questions to further develop the necessary factual
record. Claimant testified that Employer never gave her warnings about her not
attending work shifts. (Id. at 8-9.) Claimant decided to quit her position after a
meeting with Rola Haider, Employer’s Support Service Manager, and Rebecca
Harman, Employer’s Administrative Assistant, because they made Claimant feel
uncomfortable. (Id.) Claimant quit her position with Employer after saying, “I can’t
work under two liars, so I might as well just resign.” (Id. at 4.)
       Next, Claimant called Brian Shaffer to testify on her behalf. Claimant
attempted to introduce Mr. Shaffer’s testimony to illustrate the dates and times that
she was unavailable for work. (Id. at 10.) The Referee assisted Claimant in this
process, indicating that Claimant must ask her witness questions. (Id.) Mr. Shaffer
indicated that the record before the Referee included false information and that
Claimant did not break HIPAA.2 (Id.) Mr. Shaffer does not work for Employer.
(Id. at 11.)
       Ms. Haider testified on behalf of Employer. (Id. at 1.) She testified that, over
the course of Claimant’s employment, Claimant routinely changed or failed to notify
Employer of her availability to work. (Id. at 12.) Ms. Haider clarified that she only
requested that Claimant’s mother watch Claimant’s children one time, so Claimant
could attend the meeting regarding the November 17, 2018 incident.                      (Id.)

       2
        HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub.
L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and
42 U.S.C.).

                                             4
According to Ms. Haider, Claimant allegedly told other employees that Ms. Haider
was “playing games” and trying to “kick [Claimant] out of work,” which Ms. Haider
maintained was not true. (Id.)
          Ms. Haider testified that Employer’s on-call personnel notified her that
Claimant called off work on November 17, 2018, because she was unable to find a
babysitter, as her boyfriend, her primary childcare provider, was working. (Id.
at 11.)      Ms. Haider contacted another employee to cover Claimant’s shift
from 9:00 a.m. until 2:00 p.m. (Id.) Claimant insisted on coming to work despite
calling off, and she arrived at the client’s house at 12:30 p.m. (Id.) The employee
covering Claimant’s shift called Ms. Haider to notify her that Claimant arrived for
work and would not leave the client’s residence. (Id.) Ms. Haider notified Claimant
that the other employee was already covering Claimant’s shift, and Claimant was to
leave the client’s residence. (Id.) Claimant then argued with Ms. Haider and hung
up the phone. (Id.) Ms. Haider sent Claimant a text message, stating that Claimant
must meet with her on November 20, 2018, regarding the situation on
November 17, 2018. (Id.) Claimant told Ms. Haider that she would be talking to
Employer’s Chief Executive Officer (CEO) about this situation. (Id.)
          Ms. Haider testified that she learned Claimant contacted the client’s family,
asking it to send a letter to Employer that Claimant had not hung up the phone on
Ms. Haider on November 17, 2018. (Id. at 12.) The client’s family, upset about the
situation, did not want to become involved. (Id.) According to Ms. Haider, Claimant
denied asking the client’s family to write such a letter. (Id.) Ms. Haider, however,
testified that Claimant had a history of contacting other clients’ families regarding
concerns. (Id.)




                                            5
      Ms. Haider further testified that Claimant did not attend the November 20,
2018 meeting. (Id. at 11.) Ms. Haider arranged another meeting for the upcoming
Friday. (Id.) Claimant called Ms. Haider on Friday morning, inquiring as to whether
she could bring her children with her to the meeting. (Id.) Ms. Haider told Claimant
that she could not bring her children. (Id.) Despite this conversation, Claimant
brought her children to the meeting. (Id. at 11-12.) Ultimately, Employer’s CEO
ended the meeting due to Claimant’s children’s disruptive behavior. (Id. at 12.) At
that time, Claimant informed Employer’s CEO that she was quitting her position.
(Id.) At no time did Claimant inform Ms. Haider that she felt uncomfortable in her
position. (Id. at 13.) Ms. Haider testified that had Claimant not resigned her
position, continuing work was available for her with Employer. (Id.)
      Ms. Harman testified that Employer never asked Claimant to resign her
position. (Id.) During the course of her employment, Claimant would routinely
notify Employer about changes in her availability to work. (Id.) Employer would
change Claimant’s hours in accordance with her changed availability. (Id.)
      At the conclusion of Employer’s testimony, the Referee asked Claimant if she
had any other questions for Ms. Haider or Ms. Harman and if she had anything
additional she would like to add to the record prior to the end of the hearing. (Id.
at 14.) Claimant communicated that she did not have anything additional to add to
the record. (Id.)
      Following the hearing, the Referee issued a decision, concluding that
Claimant was ineligible for unemployment compensation benefits, thereby affirming
the Service Center’s determination. (C.R., Item No. 9 at 1-3.) Claimant appealed to
the Board. The Board affirmed the Referee’s decision, concluding that Claimant
was ineligible for benefits under Section 402(b) of the Law, because she voluntarily


                                         6
quit her position without a necessitous and compelling reason, and the Referee gave
Claimant a full and fair opportunity to present her case. (C.R., Item No. 11 at 1-3.)
In so doing, the Board made the following findings of fact:
             1.    The claimant was last employed as a home health
                   aide by Family Home Medical Support from
                   January 18, 2007, to November 20, 2018, at a final
                   rate of $10.50 per hour.
             2.    The claimant allegedly had difficulty with the
                   employer’s management scheduling her for days
                   she could not work.
             3.    The claimant also had difficulty with her boss that
                   allegedly led her to feel uncomfortable at work.
             4.    On November 17, 2018, the claimant called off
                   from work because her boyfriend was working and
                   she did not have adequate transportation.
             5.    The employer covered the claimant’s shift, but the
                   claimant still came to the client’s residence.
             6.    The employer’s support service manager told the
                   claimant to leave the client’s residence but the
                   claimant refused and hung up the phone on her.
             7.    The support service manager sent the claimant a text
                   message asking the claimant to meet with her on
                   November 20, 2018.
             8.    The claimant did not show up for the meeting, and
                   the employer rescheduled it for November 23, 2018.
             9.    On November 23, 2018, the claimant went to the
                   meeting with her three children.
             10.   The claimant’s children became disruptive and the
                   employer’s CEO informed the claimant that the
                   meeting could not take place.
             11.   The claimant then voluntarily quit her job, telling
                   the employer’s CEO, “I can’t work under two liars,
                   so I might as well resign.”
             12.   Continuing work was available to the claimant.
(C.R., Item No. 11 at 1-2.) The Board reasoned:

                                         7
                      In this case, the claimant testified that she had
               difficulty with the employer scheduling her for days she
               could not work. The claimant also testified that she had
               difficulty with her boss that led her to feel uncomfortable
               at work, and that she notified the employer’s CEO about
               her problems in late October or early November of 2018.
               On November 23, 2018, however, the claimant voluntarily
               quit her job, telling the employer’s CEO, “I can’t work
               under two liars, so I might as well resign.”
                      The Board does not credit the claimant’s testimony
               that her boss made her feel uncomfortable. Furthermore,
               because the claimant did not present any testimony on
               what she told the employer’s CEO, the Board does not
               credit her testimony that she adequately apprised the
               employer of her grievances. Based on the evidence
               presented, the Board determines that the claimant had a
               personality conflict with her boss and that she resigned her
               employment for reasons that are not necessitous and
               compelling. Benefits are thus denied.
                     On appeal, the claimant asserts that the employer
               subjected her to emotional abuse, and that the Referee
               stopped her from fully testifying. The Board, however,
               disagrees, as the claimant did not present sufficient
               testimony that the employer emotionally abused her at the
               hearing. Furthermore, the Referee did not behave
               improperly and gave the claimant a full and fair
               opportunity to present her case.
                     The claimant’s appeal also presents evidence that is
               absent from the record before the Referee. The Board may
               not consider extra-record evidence and avoided doing so
               here.

(Id. at 2-3.) Claimant petitioned the Board for reconsideration of its decision, which
the Board denied. (C.R., Item Nos. 12, 13, 14.) Claimant then petitioned this Court
for review.3

       3
        In Claimant’s petition for review, it appears she seeks to challenge both the merits of the
Board’s April 19, 2019 order and the Board’s letter denying reconsideration of its determination,
thereby denying her benefits. As the merits of the Board’s order and the Board’s denial of


                                                8
       On appeal to this Court,4 Claimant argues: (1) the Board erred in determining
that the Referee acted appropriately and afforded Claimant due process; and (2) the
Board erred in concluding that Claimant voluntarily quit without cause of a
necessitous and compelling nature.5
       We first consider whether Claimant’s due process rights were violated during
the hearing before the Referee. It is well-settled that in order to provide due process
rights to an unrepresented claimant in an unemployment compensation case, a
referee has the responsibility “to assist a pro se claimant at a hearing so that the facts
of the case necessary for a decision may be adequately developed.” Beddis v.
Unemployment Comp. Bd. of Review, 6 A.3d 1053, 1059 (Pa. Cmwlth. 2010).6 The
Board’s regulations specifically provide: “Where a party is not represented by
counsel the tribunal before whom the hearing is being held should advise him as to
his rights, aid him in examining and cross-examining witnesses, and give him every
assistance compatible with the impartial discharge of its official duties.” 34 Pa. Code


reconsideration are two separate appealable orders, it is necessary for a petitioner to file two
separate petitions for review in order for this Court to review both orders. See 34 Pa. Code
§§ 101.111, 101.112. In this case, Claimant filed a single petition for review in which she appears
to only challenge the merits of the Board’s April 19, 2019 order and not the Board’s letter denying
reconsideration of its decision. We, therefore, only review the merits of the Board’s April 19, 2019
order.
       4
         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. 2 Pa. C.S. § 704.
       5
          Claimant attaches various pieces of extra-record evidence to her briefs before this Court.
It is well-settled that this Court cannot consider extra-record evidence that is not part of the
certified record on appeal. See Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558,
564 (Pa. Cmwlth. 2012); Croft v. Unemployment Comp. Bd. of Review, 662 A.2d 24, 28 (Pa.
Cmwlth. 1995). We, therefore, do not consider this extra-record evidence in our review.
       6
       The Supreme Court overruled Beddis on other grounds in Diehl v. Unemployment
Compensation Board of Review (ESAB Group, Inc.), 57 A.3d 1209 (Pa. 2012).

                                                 9
§ 101.21(a). The referee, however, is not required to advise a party on specific
evidentiary questions or points of law, but, rather, “must act reasonably in assisting
in the development of the necessary facts, and any failure to develop an adequate
record must be prejudicial to the claimant and not mere harmless error or else a
reversal will not be found.” Beddis, 6 A.3d at 1059 (emphasis in original).
      In this case, Claimant essentially argues that her due process rights were
violated when the Referee failed to advise her on how to introduce evidence of phone
calls, voicemails, emails, and other communications during the hearing. In addition,
Claimant essentially argues that the Referee failed to assist her in wording her
testimony, failed to review the entire file, and had his back turned to her when she
wanted to add additional testimony to the record at the end of the hearing. It is
evident, however, that, prior to the hearing before the Referee, the Referee supplied
Claimant with the Notice of Hearing that clearly notified Claimant of her right to
counsel, her right to present witnesses, and her right to cross-examine witnesses.
(C.R., Item No. 7 at 2-3.) In addition, in accordance with Section 101.21 of the
Board’s regulations, the Referee restated these rights to Claimant at the outset of the
hearing. (C.R., Item No. 8 at 2, 4.) At that time, Claimant informed the Referee that
she understood her rights. (Id.)
      Additionally, throughout the hearing, the Referee assisted Claimant with
entering documents into the record, informed her how to ask her witness questions,
inquired into whether she had any questions for Employer’s representatives, and
took his own initiative to ask questions of Claimant, Claimant’s witness, and
Employer representatives to better develop the factual record in this case. (Id.
at 7-11, 13-14.) The Referee’s actions, as shown through the record, indicate that
he acted in accordance with his administrative duties during Claimant’s hearing and,


                                          10
therefore, did not violate Claimant’s due process rights. The Referee made every
effort to further develop the necessary factual record. The Referee is not required
to assist Claimant on evidentiary issues or in developing her theory of the case.
Rather, it is Claimant’s responsibility to make decisions regarding evidentiary
matters and the development of her case. Claimant simply failed to do so here. The
Referee afforded Claimant her full due process rights during the hearing by
providing her a full and fair opportunity to present her case.
      Next, we consider whether the Board erred in concluding that Claimant
voluntarily quit without cause of a necessitous and compelling nature. A claimant
who does not have a necessitous and compelling reason to voluntarily quit her
position is disqualified for unemployment compensation benefits under
Section 402(b) of the Law. Determining whether a claimant had a necessitous and
compelling reason to voluntarily quit is a question of law that is reviewable by this
Court. Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa.
Cmwlth. 1985). In order to establish that one has a necessitous and compelling
reason to voluntarily quit, a claimant bears the burden to prove: (1) circumstances
existed that produced real and substantial pressure to terminate her 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 employment. Procito v. Unemployment Comp. Bd. of
Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008) (en banc); Fitzgerald v.
Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998),
appeal denied, 794 A.2d 364 (Pa. 1999).        “Mere dissatisfaction with working
conditions . . . or a mere personality conflict absent an intolerable work atmosphere,
however, does not constitute necessitous and compelling reasons to voluntarily


                                          11
quit.”    Gioia v. Unemployment Comp. Bd. of Review, 661 A.2d 34, 37 (Pa.
Cmwlth. 1995) (quoting Uniontown Newspapers, Inc. v. Unemployment Comp. Bd.
of Review, 558 A.2d 627, 629 (Pa. Cmwlth. 1989)).                 Additionally, in an
unemployment compensation case, the Board is the ultimate finder of fact and is
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).
         Claimant advances two arguments in support of her contention that she had
necessitous and compelling reasons to quit. Claimant first argues that Employer’s
actions—i.e., the incident on November 17, 2018, and her general feeling that people
at work were out to get her—constituted a necessitous and compelling reason to quit,
because they made her feel uncomfortable. The Board found Claimant’s testimony
regarding her lack of comfort at work to be the equivalent of a personality conflict
with her boss. (C.R., Item No. 11 at 2.) As noted above, a personality conflict in
and of itself does not rise to the level of a necessitous and compelling reason to quit.
Gioia, 661 A.2d at 37. Claimant also argues that the conditions within her clients’
homes aggravated her various medical conditions (anxiety, allergies, depression,
asthma, and sinus problems), thereby resulting in a necessitous and compelling
reason to quit. The certified record, however, does not contain evidence that would
support this contention.
         Furthermore, even if the circumstances identified by Claimant could form the
basis of necessitous and compelling reasons to quit, Claimant failed to establish that
she attempted to preserve her employment relationship. A claimant will be denied
unemployment benefits where she fails to make a reasonable attempt to preserve her
employment by addressing her dissatisfaction with working conditions prior to


                                          12
terminating her employment. Craighead-Jenkins v. Unemployment Comp. Bd. of
Review, 796 A.2d 1031, 1033 (Pa. Cmwlth. 2002); Petrick v. Unemployment Comp.
Bd. of Review, 455 A.2d 757, 759 (Pa. Cmwlth. 1983). The Board found that
Claimant failed to develop sufficient facts in her testimony to illustrate what
grievances, if any, she allegedly voiced to Employer’s CEO prior to quitting. (See
C.R., Item No. 8.)
      Accordingly, the order of the Board is affirmed.




                                        P. KEVIN BROBSON, Judge




                                        13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stacy Snyder,                        :
                      Petitioner     :
                                     :
            v.                       :   No. 737 C.D. 2019
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER


      AND NOW, this 8th day of June, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.




                                     P. KEVIN BROBSON, Judge
