IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle, :

:

Petitioner :

:

v. : No. 1446 C.D. 2016

: Submitted: February 10, 2017

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 5, 2017

James Lyle (Claimant), proceeding pro se, petitions for review from 

the order of the Unemployment Compensation Board of Review (Board) that 

determined that he was ineligible for unemployment compensation (UC) benefits 

pursuant to Section 402(b) of the Unemployment Compensation Law (Law)1

(relating to voluntary termination). Claimant contends the Board disregarded 

evidence and erred in determining he quit without a necessitous and compelling 

reason. Discerning no error, we affirm. 

Claimant worked for Family Dollar Stores (Employer) as a full-time 

store manager from February 1, 2016, until April 20, 2016. After his separation 

 

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

§802(b).
2

from employment, Claimant applied for UC benefits. The local service center 

denied benefits under Section 402(b) of the Law. Certified Record (C.R.), No. 6 

(Notice of Determination). Claimant appealed, and a referee held a hearing, at 

which neither Claimant nor Employer appeared. C.R., Nos. 11 (Hearing 

Transcript, 5/26/16) and 12 (Referee’s Decision, 5/27/16). The referee affirmed 

the denial of benefits. 

Claimant appealed to the Board, and asserted he never received notice 

of the referee’s hearing. The Board remanded the matter to the referee to serve as 

the Board’s hearing officer to receive testimony and evidence on Claimant’s 

reasons for his nonappearance at the initial hearing as well as on the merits. 

Claimant appeared and testified at the remand hearing. Employer did not appear. 

Based on the testimony and evidence presented, the Board found that 

Claimant did not attend the initial referee hearing because he did not receive notice 

of the hearing. Claimant testified that: he was having issues with his mail, which 

were unrelated to his UC claim; the issues began prior to working for Employer;

and he notified the U.S. Postal Service of the problem. Board Remand Hearing, 

7/12/16, Notes of Testimony (N.T.) at 3. Claimant also presented evidence in 

support. C.R., No. 20 (Claimant’s Remand Exhibits Nos. 1 and 2). The Board 

credited Claimant’s testimony in this regard and determined he established good 

cause for his nonappearance at the initial hearing.

As to the merits, the Board found that, when problems arose at 

Claimant’s store, his supervisor often threatened to fire him. Claimant became 

upset with supervisor’s behavior. To remedy the situation, Claimant contacted 

Employer’s ethics department. The ethics department began investigating the 

supervisor’s behavior. On April 20, 2016, Claimant voluntarily terminated his 
3

employment because of a personality conflict with his supervisor. Claimant did 

not allow Employer’s ethics department to complete its investigation prior to 

voluntarily terminating his employment. Board Opinion, 8/8/16, Findings of Fact 

(F.F.) Nos. 3-7. 

Ultimately, the Board concluded that Claimant voluntarily terminated 

his employment based on a personality conflict with his supervisor. Claimant did 

not allow the ethics department to conclude its investigation prior to voluntarily 

terminating his employment. Claimant did not assert that the ethics investigation 

would be futile or provide sufficient explanation to justify his actions. The Board 

determined Claimant did not act in the manner a reasonable person would under 

the same circumstances as he did not exhaust all remedies prior to quitting his 

employment. Thus, the Board concluded Claimant was ineligible for benefits 

under Section 402(b) having voluntarily quit his employment without a necessitous 

and compelling reason. Claimant requested reconsideration based on new 

information that Employer never followed through with the investigation after he 

quit, thereby making the investigation a futile act. C.R., No. 22 (Request for 

Reconsideration). The Board denied the request. Claimant now petitions for 

review.2

Claimant argues that the Board erred in determining he quit his

employment without cause of a necessitous and compelling nature. He contends 

the Board disregarded the threatening text messages that his supervisor sent to him. 

 

2 Our review is limited to determining whether necessary findings of fact were supported 

by substantial evidence, whether errors of law were committed, or whether constitutional rights 

were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Johns v. 

Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), appeal 

denied, 97 A.3d 746 (Pa. 2014). 
4

He claims the Board ignored other evidence showing his repeated contacts with the 

corporate headquarters to resolve the situation went unanswered. In addition, 

Claimant asserts that the Board erred in denying his request to produce newlydiscovered evidence showing Employer never completed the investigation after he 

quit. He advances that he was prejudiced by Employer’s nonappearance at the 

remand hearing to explain why the investigation was not completed. 

To begin, a review for capricious disregard of material, competent 

evidence is an appropriate component of appellate review in any case in which the 

question is properly raised before a court. Leon E. Wintermyer, Inc. v. Workers’

Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002); see Diehl 

v. Unemployment Compensation Board of Review, 4 A.3d 816, 824 (Pa. Cmwlth.

2010), reversed on other grounds, 57 A.3d 1029 (Pa. 2012). A capricious 

disregard of evidence occurs where the “findings reflect a deliberate disregard of 

competent evidence that logically could not have been avoided in reaching the 

decision . . . .” Pryor v. Workers’ Compensation Appeal Board (Colin Service 

Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2007). Where substantial evidence 

supports the findings, and those findings in turn support the conclusions, it should 

remain a rare instance where an appellate court disturbs an adjudication based on 

capricious disregard. Wintermyer, 812 A.2d at 487. 

Further, the Board is the ultimate fact-finder in UC matters and is 

empowered to resolve all conflicts in the evidence, witness credibility, and weight 

accorded to the evidence. Ductmate Industries, Inc. v. Unemployment 

Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant 

whether the record contains evidence to support findings other than those made by 

the fact-finder; the critical inquiry is whether there is evidence to support the 
5

findings actually made. Id. Where substantial evidence supports the Board’s 

findings, they are conclusive on appeal. Id. In addition, we must examine the 

testimony in the light most favorable to the party in whose favor the fact-finder 

ruled, giving that party the benefit of all logical and reasonable inferences from the 

testimony. Id.

Section 402(b) of the Law provides that an employee shall be 

ineligible for compensation for any week “[i]n which his unemployment is due to 

voluntarily leaving work without cause of a necessitous and compelling nature 

. . . .” 43 P.S. §802(b). The question of whether a claimant has a necessitous and 

compelling reason to terminate employment is a question of law reviewable by this 

Court. Middletown Township v. Unemployment Compensation Board of Review, 

40 A.3d 217, 227 (Pa. Cmwlth. 2012).

An employee who claims to have left employment for a necessitous 

and compelling reason bears the burden of proof. Middletown Township, 40 A.3d

at 227-28. To prove a necessitous and compelling reason for leaving employment, 

a claimant must demonstrate the following: “(1) circumstances existed which 

produced real and substantial pressure to terminate employment; (2) such 

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 her employment.” Solar Innovations, Inc. v. 

Unemployment Compensation Board of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 

2012) (quoting Brunswick Hotel & Conference Center, LLC v. Unemployment 

Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006)). An 

employer has no burden of proof in a voluntary quit case. Earnest v. 

Unemployment Compensation Board of Review, 30 A.3d 1249, 1256 (Pa. Cmwlth. 
6

2011) (citing Johnson v. Unemployment Compensation Board of Review, 869 A.2d 

1095, 1104 (Pa. Cmwlth. 2005)). 

Here, Claimant does not challenge any of the Board’s actual findings. 

“Unchallenged findings are conclusive on appeal . . . .” Munski v. Unemployment 

Comp. Bd. of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011). Rather, Claimant 

contends that the Board failed to consider evidence demonstrating a necessitous 

and compelling reason to terminate his employment based on the threats of his 

supervisor and Employer’s inaction. Claimant testified that he was new to the job, 

he was not adequately trained in certain areas, and that shortly after he started 

issues arose at the store that he managed. N.T. 4-5. Claimant testified and 

presented text messages that his supervisor threatened to fire him on April 3, 2016, 

for not meeting payroll. N.T. at 5; C.R., No. 20 (Claimant’s Remand Exhibit No. 

3). His supervisor threatened him again on April 17, 2016, when Claimant was not 

available to close the store personally. N.T. at 7; C.R., No. 20 (Claimant’s 

Remand Exhibit No. 3). Contrary to Claimant’s assertions that the Board 

disregarded this evidence, the Board considered this evidence and specifically 

found that his “supervisor would often threaten to fire” him. F.F. No. 3. 

As for Claimant’s claim that the evidence showed that Employer did 

not take action, Claimant testified that, after the first incident, Claimant left two 

voicemail messages for his supervisor’s boss, but she did not return his call. N.T. 

at 7. He also unsuccessfully attempted to contact Employer’s corporate 

headquarters via Facebook. N.T. at 7. 

Then, on April 15, 2016, he contacted Employer’s third-party ethics 

department, and filed a complaint. N.T. at 7. The call taker advised that Employer 

would contact him within 14 days regarding his complaint. N.T. at 7. On April 
7

18, 2016, Employer notified Claimant that the matter was assigned to an 

investigator in his region. N.T. at 8. Two days later, on April 20, 2016, the 

regional investigator contacted Claimant. N.T. at 8. The investigator asked 

Claimant details about the working conditions, what transpired, and his complaints. 

N.T. at 8-9. She asked Claimant to forward the text messages as well as any 

voicemail messages from his supervisor. N.T. at 9. 

Later that same day, Claimant quit his employment. N.T. at 9. When 

the hearing officer asked Claimant why he did not wait for the investigation to 

move forward, Claimant responded that he was afraid he would lose his job. N.T. 

at 9. Claimant repeatedly testified that he quit because he thought he might be 

fired. N.T. at 5, 7, 9, 11. Claimant admitted that he quit while Employer was 

“trying to investigate” and “figure it out.” N.T. at 9. 

Based on this evidence, the Board found that Claimant did not allow 

Employer’s ethics department to complete its investigation prior to voluntarily 

terminating his employment. F.F. No. 7. Although Claimant may not have 

received a response from his supervisor’s boss or corporate headquarters, upon 

contacting the ethics department, an investigation into Claimant’s complaint was 

opened immediately and the matter was assigned to an investigator. Within five 

days of contacting the ethics department, a regional investigator contacted 

Claimant. However, Claimant quit the very day the regional investigator contacted 

him. Claimant admitted he did not allow the ethics department to conclude its 

investigation prior to quitting. N.T. at 9. 

By not giving Employer an opportunity to complete the investigation

and rectify the situation prior to quitting, Claimant did not make a reasonable effort 

to preserve his employment. See St. Barnabas, Inc. v. Unemployment 
8

Compensation Board of Review, 525 A.2d 885, 888 (Pa. Cmwlth. 1987) (a 

claimant was ineligible where the claimant “submit[ted] her resignation without 

giving the [e]mployer the opportunity to solve the problem”); see also Western and 

Southern Life Insurance v. Unemployment Compensation Board of Review, 913 

A.2d 331, 337 (Pa. Cmwlth. 2006) (noting that where a claimant voluntarily 

terminates employment after receiving notice that the employer is committed to 

resolving the work problems does not evidence a good faith effort to preserve 

employment). Moreover, Claimant’s testimony that he quit out of fear that he 

would be fired does not constitute real and substantial pressure to terminate 

employment. See Department of Corrections v. Unemployment Compensation 

Board of Review, 547 A.2d 470, 474 (Pa. Cmwlth. 1988) (general fear of losing job 

did not rise to a cause of a necessitous and compelling nature to quit employment); 

see also Johnson, 869 A.2d at 1107 (fear about future employment was 

speculative). Upon review, we conclude that the Board did not err or disregard the 

evidence presented at the hearing in determining that Claimant is ineligible for 

benefits under Section 402(b). 

Notwithstanding, Claimant contends that the Board erred in denying 

his request for reconsideration based on alleged after-discovered evidence, which 

was not available at the time of hearing, that Employer never followed through 

with the investigation after Claimant quit. He asserts that this evidence proves that 

Employer’s investigation was futile. See Martin v. Unemployment Compensation 

Board of Review, 749 A.2d 541, 544 (Pa. Cmwlth. 2000) (an employee may be 

excused from reporting sexual harassment to the employer if the employee 

reasonably believed that reporting would have been futile).
9

However, Claimant did not appeal the Board’s order denying 

reconsideration. See Pa. R.A.P. 1512(a)(1) (petitions for review must be filed 

within 30 days of the entry of an order from which an appeal is taken). Therefore, 

our review is limited to Claimant’s appeal of the merits decision. Nevertheless, 

even if properly before us, we would discern no abuse of discretion in the Board's 

denial of Claimant's request for reconsideration.

The Board’s regulations provide that reconsideration will be granted 

“only for good cause in the interest of justice without prejudice to any party.” 

34 Pa. Code §101.111(b). “In determining whether ‘good cause’ exists, the 

[Board] must consider whether the party requesting reconsideration has presented 

new evidence or changed circumstances or whether [the Board] failed to consider 

relevant law.” Laster v. Unemployment Compensation Board of Review, 80 A.3d 

831, 834 (Pa. Cmwlth. 2013) (quoting Ensle v. Unemployment Compensation 

Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999)). 

Claimant requested reconsideration to introduce evidence that 

Employer discontinued the investigation after he quit. Such evidence is irrelevant 

because it would not establish the futility of Employer’s efforts before he quit. 

Thus, the Board did not err or abuse its discretion in denying Claimant’s request 

for reconsideration. 

Insofar as Claimant complains that Employer did not appear at the 

remand hearing, where a claimant voluntarily terminates his employment, an 

employer bears no burden of proof. Earnest, 30 A.3d at 1256. Rather, it is the 

claimant’s burden to prove entitlement to benefits. Id. Thus, Employer’s 

appearance was not necessary. If Claimant believed Employer’s appearance was 

necessary for him to carry his burden, Claimant could have subpoenaed 
10

Employer’s witnesses. However, Claimant neither made such a request nor 

expressed any desire to obtain evidence from Employer at the hearing. Cf. Coates 

v. Unemployment Compensation Board of Review, 676 A.2d 742, 744 n.3

(Pa. Cmwlth. 1996) (where the claimant expressed the need for evidence from the 

employer that was solely within the employer’s possession, we noted that a referee 

has a responsibility to assist a pro se claimant so that facts necessary for the 

decision may be adequately developed). Again, any evidence showing that 

Employer discontinued the investigation after Claimant quit would not prove the 

futility of the investigation at the time that he did quit. 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James M. Lyle, :

:

Petitioner :

:

v. : No. 1446 C.D. 2016

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 5

th day of June, 2017, the order of the 

Unemployment Compensation Board of Review, dated August 8, 2016, is 

AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge