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. 
2

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.
3

[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.
4

[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.
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 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. 
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 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 
7

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
IN 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 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