IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason W. Murphy, :

Petitioner :

:

v. : No. 1245 C.D. 2021

: Submitted: March 10, 2023

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE DUMAS FILED: June 22, 2023

Jason W. Murphy (Claimant), appearing pro se, has petitioned this 

Court to review an adjudication of the Unemployment Compensation Board of 

Review (Board). The Board determined that Claimant was ineligible for 

unemployment benefits under Section 402(b) of the Unemployment Compensation 

Law (the Law).

1

 On appeal, we consider whether Claimant established a necessitous 

and compelling reason to voluntarily quit his employment. After careful 

consideration, we affirm. 

I. BACKGROUND2

Claimant was employed in the welding department of Fehlinger 

Construction Group (Employer) from July 2019 until January 2020. On January 16, 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 

802(b). 

2 Unless stated otherwise, we adopt the factual background for this case from the Board’s 

decision, which is supported by substantial evidence of record. See Bd.’s Dec., 9/7/2021. 
2

2020, Claimant voluntarily quit his employment without first providing Employer 

an explanation. Claimant applied for unemployment benefits, which the UC Service 

Center denied under Section 402(b) of the Law.3 Thereafter, Claimant appealed to 

the Referee. Initially, the Referee dismissed Claimant’s appeal as untimely pursuant 

to Section 501(e) of the Law.4 However, Claimant further appealed to the Board, 

which vacated the Referee’s determination and remanded for a full hearing.

At the hearing, Claimant addressed both the timeliness of his appeal as 

well as the substantive reasons for voluntarily leaving his employment. Claimant 

testified that he mailed his appeal on November 30, 2020, from his local post office

at Harvey’s Lake but conceded that it did not receive a postmark until several days 

later at the Lehigh Valley post office. Regarding the merits of his claim, Claimant 

testified that he was uncomfortable with the sexually explicit conversations and 

gestures of his coworkers. However, Claimant did not report this behavior to 

Employer because he thought that it would lead to ridicule or an awkward situation.5 

Following the hearing, the Board concluded that the delay in Claimant’s 

appeal was caused by the United States Postal Service and outside of Claimant’s 

3 Section 402(b) provides that an employee is ineligible for compensation for any week 

where his unemployment is the result of his voluntary work departure without a necessitous and 

compelling cause. 43 P.S. §802(b). 

4 On November 13, 2020, the UC Service Center denied Claimant benefits. The envelope 

containing Claimant’s appeal was postmarked December 3, 2020. At the time, Section 501(e) of 

the Law required appeals to be filed within 15 days of a notice of determination. 43 P.S. § 821(e). 

5 The Board did not credit the explicit details of Claimant’s testimony, finding only that 

“the sexual nature of his co[]workers’ conversations and gestures” made him uncomfortable. Bd.’s 

Dec. at 1. Nevertheless, Claimant described the final incident leading to his departure. According 

to Claimant, his supervisor, Tom Scouten, asked employees where they liked to ejaculate, and the 

employees began to discuss sexual activities they engaged in with their partners. See Notes of

Testimony (N.T.) Hr’g, 5/17/21, at 6. This was not isolated behavior. Claimant described another 

instance where a coworker repeatedly inquired about the size of Claimant’s penis, see id. at 9, and 

a separate occasion when a coworker placed “[his] penis on [Claimant’s] shoulder.” Id. at 8.
3

control. It therefore deemed Claimant’s appeal timely. Nevertheless, the Board

concluded that Claimant was ineligible for benefits under Section 402(b). The Board 

determined that Claimant’s failure to report his concerns deprived Employer of an 

opportunity to remedy the situation. Thus, Claimant failed to establish a necessitous 

and compelling reason for leaving his employment. Claimant timely petitioned this 

Court for review.

6

II. ISSUE

Claimant contends that he voluntarily quit for a necessitous and 

compelling reason, i.e., sexually explicit language and conduct by his coworkers that 

made him feel uncomfortable, unsafe, and hopeless. See Claimant’s Br. at 8. See 

generally Claimant’s Br. at 8-13. While Claimant concedes that he never filed a 

formal complaint, he suggests that his “verbal and nonverbal actions on many 

instances” demonstrated that such inappropriate words and behavior made him 

uncomfortable. Id. at 8. Moreover, according to Claimant, such conduct was incited 

by his superiors. Id. For these reasons, Claimant implicitly asserts that any formal 

complaint would have been futile. See id. at 8-12. Thus, Claimant concludes that 

the Board erred in denying him unemployment benefits. Id. at 13.7 

6 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, or whether the findings of fact were unsupported by 

substantial evidence. Rose Tree Media Sch. Dist. v. Unemployment Comp. Bd. of Rev., 280 A.3d 

1125, 1127 n.4 (Pa. Cmwlth. 2022).

7 Although Claimant’s brief lacks proper legal argument or citation to relevant legal 

authority, see Pa. R.A.P. 2119(a), we are generally inclined to construe pro se filings liberally. 

Smithley v. Unemployment Comp. Bd. of Rev., 8 A.3d 1027, 1029 n.6 (Pa. Cmwlth. 2010). These

defects in Claimant’s brief do not preclude our meaningful appellate review. Arnold v. Workers’ 

Comp. Appeal Bd. (Lacour Painting, Inc.), 110 A.3d 1063, 1067 (Pa. Cmwlth. 2015). 
4

III. DISCUSSION

A claimant is ineligible for unemployment benefits if he voluntarily 

quits his job without a necessitous and compelling cause. Section 402(b) of the Law, 

43 P.S. § 802(b). To satisfy the burden of proving a necessitous and compelling 

cause, a claimant must show (i) the existence of real and substantial pressure to 

terminate employment; (ii) that a reasonable person would have acted in the same 

manner; (iii) that he acted with ordinary common sense; and (iv) that he exercised 

reasonable efforts to preserve his employment. Greenray Indus. v. Unemployment 

Comp. Bd. of Rev., 135 A.3d 1147, 1151 (Pa. Cmwlth. 2016). 

Sexual harassment may constitute real and substantial pressure to 

voluntarily quit employment. Serrano v. Unemployment Comp. Bd. of Rev., 149 

A.3d 435, 440 (Pa. Cmwlth. 2016). “[T]here is a certain level of conduct that an 

employee will not be required to tolerate[,] and the Court will not place all 

responsibility upon an employee to resolve his or her work dilemma.” Id. (citation 

omitted). Nevertheless, an employee usually must first notify an employer of the 

harassment before quitting to demonstrate that he has exercised reasonable efforts to 

preserve his employment. Id. Reporting affords an employer the opportunity to 

understand the nature of the claimant’s objections and take prudent efforts to resolve 

the problem. Collier Stone Co. v. Unemployment Comp. Bd. of Rev., 876 A.2d 481, 

484 (Pa. Cmwlth. 2005).

An employee need not report sexual harassment if the employee 

reasonably believes that reporting would be futile. Martin v. Unemployment Comp. 

Bd. of Rev., 749 A.2d 541, 544 (Pa. Cmwlth. 2000) (citing Peddicord v. 

Unemployment Comp. Bd. of Rev., 647 A.2d 295 (Pa. Cmwlth. 1994)). For example, 

in Peddicord, an employer’s regional manager made sexually offensive comments 
5

to an employee, including on one occasion in front of the employee’s direct 

supervisor, who did nothing. Peddicord, 647 A.2d at 298. Under these 

circumstances, this Court imputed knowledge of the harassment to the employer and 

absolved the employee of any obligation to report the harassment prior to her 

voluntary resignation. Id. (concluding that “the claimant had every reason to believe 

that reporting [the harassment] would have produced no satisfactory result”).

However, we reached the opposite result in Johnson v. Unemployment 

Compensation Board of Review, 725 A.2d 212 (Pa. Cmwlth. 1999). There, a store 

manager made sexual advances toward the claimant. Id. at 213. The claimant 

objected, and the manager agreed to change her conduct; however, the behavior 

continued. Id. The claimant did not report the ongoing harassment to higher level 

managers before eventually quitting. Id. The Board denied benefits, and this Court 

affirmed, concluding that the claimant had failed to take common sense action to 

alleviate the harassment. Id. at 214-15 (observing that the claimant did not attend a 

scheduled meeting with the employer’s area supervisor on the day she quit). The 

Court stated that reasonable efforts “necessarily include reporting complaints of 

sexual harassment to an employer representative other than the perpetrator of the 

conduct[,]” provided the perpetrator is subject to the employer’s supervision. Id.

In this case, the facts align more closely with Johnson than Peddicord. 

The Board found that the sexual nature of Claimant’s coworkers’ conversations and 

gestures was offensive to Claimant. See Bd.’s Dec. at 1. There is ample support for 

this finding in the record. See Notes of Testimony (N.T.), Hr’g, 5/17/21, at 6-9. 

During his testimony, Claimant also offered reasons for not reporting the offensive 

conduct to Employer. Initially, for example, Claimant testified that he did not feel 

comfortable telling his immediate supervisor, because the supervisor was a 
6

perpetrator of the offensive conduct. Id. at 6 (“Tom is actually my neighbor, so I 

didn’t want to make things extra weird in daily life.”).8 Claimant also suggested that 

there should be no need to report such behavior because “[t]hat’s not okay in any 

workplace that I know of.” Id. at 7. In its findings, the Board specifically credited 

Claimant’s concern that he would be ostracized. See Bd.’s Dec. at 1; N.T. Hr’g at 7

(“You just get made fun of for not being part of the group.”). 

Under these circumstances, Claimant was not required to report the 

offensive conduct to his immediate supervisor, but he should have taken other 

reasonable steps to inform Employer of the harassment. Johnson, 725 A.2d at 214. 

Clearly, he did not. When asked if he could have reported the harassment to the 

human resources department, Claimant conceded that he did not know if Employer 

had one. N.T. Hr’g at 8.9 When asked if he ever communicated with the engineer 

who supervises the welding department, Claimant replied, “I don’t know who that 

is.” Id. at 9. When asked if he had ever voiced his complaints to the company 

owners, Claimantstated, “I never met them either.” Id. at 9-10. Finally, when asked 

if he reported his complaints to the company office where he applied for his job, 

Claimant conceded, “No, I did not.” Id. at 10. 

8 The Board did not credit specifically the supervisor’s participation in the harassment but 

did credit Claimant’s concern that reporting the harassment would “create an awkward situation[.]” 

Bd.’s Dec. at 1. 

9 Claimant then testified that he could not approach Justin Scouten, Tom’s brother and “the 

guy above” Tom. N.T. at 8. The hierarchy within Employer’s welding department is not entirely 

clear from the record. Nevertheless, this Court has recognized that a supervisor’s familial 

relationship to a claimant’s perpetrator is not sufficient reason to excuse a claimant’s failure to 

report sexual harassment. Butler v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 327 C.D. 

2011, filed Aug. 12, 2011) (unreported), slip op. at 6, 2011 WL 10841568, at *3 (the claimant was 

not excused from reporting sexual harassment where the employer’s father was the claimant’s

perpetrator). We cite Butler for its persuasive value. See Pa. R.A.P. 126(b)(1); 210 Pa. Code § 

69.414(a).
7

Based on the express findings of the Board, and the testimony

highlighted above, we decline to impute knowledge of Claimant’s sexual harassment 

concerns to Employer. See Peddicord, 647 A.2d at 298. Claimant’s failure to report 

this offensive conduct deprived Employer of an opportunity to resolve the problem. 

Collier Stone Co., 876 A.2d at 484. The record does not support a finding that 

Claimant’s reticence was due to a reasonable belief that reporting would be futile

but rather that such effort may lead to an awkward situation. Thus, we agree that 

Claimant failed to establish a necessitous and compelling reason for quitting. 

Greenray Indus., 135 A.3d at 1151. 

For these reasons, we affirm the Board.

 

LORI A. DUMAS, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason W. Murphy, :

Petitioner :

:

v. : No. 1245 C.D. 2021

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 22nd day of June, 2023, the decision of the 

Unemployment Compensation Board of Review, entered September 7, 2021, is 

AFFIRMED. 

 

 LORI A. DUMAS, Judge