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 th e April 18, 2019

order of the Unemployment Compensation Board of Review (Board)

, which let

stand as final a referee’ s determination that Claima nt i s ineligible for unemployment

compensation (UC) benefits under Section 402(b) of the Unemployment

Compensation Law (Law) 1 bec ause 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.2 Claimant was employed as a full

- time program manager for Highmark

Health (Employer) from May 2016

, until November 7, 2018 . W hen she resigned

from her position , Claimant’s final rate of pay was $133,800 .00 annually plus

bonuses. Claimant applied for UC benefits

. T he local service center determined

that she was ineligible beca use 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 t o 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

i n September 2018

. Id. Claimant disagree d with the review and refused to sign it.

Id. at 6.

Claimant testified t hat

, 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 2 4 hours to

make a decision. Id. Claimant was then asked to turn in her la ptop 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.3 [Claimant’s Counsel ] You’ve already discussed that there were two options presented to you. You did make the

decision to terminat e your employment voluntarily,

correct?

[ C laimant] That is correct.

[ C laimant’s Counsel ] Why did you ultimately decide to do

that?

[ C laimant] 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 w ould 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 7 th 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

sched uled 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.

[Cla imant] Exactly and as well as continuing with the

interviews I had.4 [ R eferee] So at that point you believed this gentleman’s main goal was going to be to terminate your employment eventually?

[ C laimant] Absolutely.

[ R eferee] But at that time you were no t being terminated but you would have been placed on a corrective action,

correct?

[ C laimant] 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 discha rge on her employment record.” Id. at 3.

C laimant 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

,

t he Board noted that, d ue 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 stat ed 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 quo rum.5 * * *

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 pe titioned 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

cor rective 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. §704.6 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 member s upon any such

. . . h e aring or appeal
undertaken, h eld 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. §76 3(d ) (emphasis added)

.

Based on the foregoing , we conclude that the rule of necessity requires

the Board to consi der and act on a determination of the merits of Claimant’s appeal

before allowing the referee’s decision to become final. T he 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 , a re 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 cl aimant was a former referee hired by the

Pennsylvania Department of Labor and Industry . The claimant argued that the

Board abuse d 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 r ender a decision in the case.

Despite the c laimant’s suggestion to the contrary, we observed that there is no other7

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 Bo ard to consider the

appeal in this case prior to deciding to affirm, modify, reverse or let stand a s final

the referee’s decision. Henderson.

Accordingly, w e vacate the Board’s order and remand for consideration

of the appeal on the merits.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan Wells, :

: Petitioner :

:

v. : No. 595 C.D. 2019

: Unemployment Compensation : Board of Review, :

: Respondent :

O R D E R

AND NOW, this 10 th day of July , 20 20

, 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