IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle A. Bankes, :

Petitioner :

:

v. : No. 184 C.D. 2014

: Submitted: July 18, 2014

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: August 27, 2014 

Petitioner Michelle A. Bankes (Claimant) petitions for review of an 

order of the Unemployment Compensation Board of Review (Board). The Board 

affirmed the Unemployment Compensation Referee’s decision, which denied 

Claimant unemployment compensation benefits pursuant to Section 402(b) of the 

Unemployment Compensation Law (Law),1relating to voluntary separation 

without cause of a necessitous and compelling nature. For the reasons set forth 

below, we affirm. 

Claimant filed for unemployment compensation benefits after 

voluntarily quitting her position as a part-time therapeutic staff support at Jeffrey 

 

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

§ 802(b).
2

Fremont Ph. D. (Employer). The Scranton UC Service Center (Service Center) 

issued a Notice of Determination, finding Claimant ineligible for benefits under 

Section 402(b) of the Law. (Reproduced Record (R.R.), Item No. 2.) The Service 

Center reasoned that Claimant failed to exhaust all other alternatives prior to 

voluntarily quitting. (Id.) Claimant appealed the Service Center’s determination, 

and a Referee conducted an evidentiary hearing. 

Claimant testified that she worked between 30 and 35 hours per week 

for Employer. (R.R., Item No. 4 at 13a.) Her normal work hours were from 

9:00 a.m. to 3:00 p.m. (Id. at 16a.) Claimant explained that her stepbrother 

informed her that he would no longer be able to watch her children while she 

worked, and, consequently, Claimant informed Judy Simon-Long (Behavior 

Specialist Consultant for Employer) that she could not continue working. (Id.

at 14a-16a.) When the Referee asked whether she looked into possibly taking her 

children to daycare, Claimant said she did not, because she used to work at a 

daycare, and she knew that daycare was “pretty expensive.” (Id. at 17a.) Claimant 

stated that the cost of daycare would cost around $500 a month per child, and she

noted that her stepbrother watched her children for free. (Id.) She explained that 

her husband was unavailable to watch the children because he also works the day 

shift, and other family members were also unavailable to watch her children. (Id.) 

Claimant testified that after she spoke with Ms. Simon-Long, Employer did not 

contact her or offer any alternatives in order to accommodate Claimant’s new 

availability. (Id. at 14a.) Claimant also testified that she was aware that Employer 

did not offer a second or third shift. (Id. at 15a.) 

Jane Andrews, Practice Manager for Employer, was Employer’s first 

witness. Ms. Andrews testified that the availability of work hours is “all case 
3

dependent.” (Id. at 19a.) When asked by Claimant’s counsel whether 

Ms. Andrews ever contacted Claimant, Ms. Andrews stated that she did not, 

explaining:

It was a verbal notice given to Judy [Simon-Long] who 

passed it along to me. [Therapeutic staff support] 

workers don’t stay in their positions for long periods of 

time. They’re usually teachers, people with a psychology 

major who are in [therapeutic staff support] because they 

can’t find a job and they’re here until they find better 

work. I know that. So I don’t take it personally when 

someone gives their notice. I assume—and we all know 

what happens if we assume—but I assume they’re going 

on to better things. 

. . . .

[W]hen someone gives their [sic] notice I don’t feel it’s 

my job to find out why. She didn’t come in with a 

complaint. 

(Id. at 20a-21a.) 

Ms. Simon-Long also testified on behalf of Employer. She testified 

that after Claimant informed her that she could no longer work, Ms. Simon-Long 

told her to contact the office to see if there were alternative hours available. (Id.

at 22a.) Contrary to what Ms. Andrews testified to, Ms. Simon-Long stated that 

there are sometimes different hours available based on changes in client 

availability. (Id.) Ms. Simon-Long stated that she was not positive as to whether 

Claimant ever contacted the office. (Id. at 23a-24a.) 

Following the hearing, the Referee issued a decision and order 

affirming the Service Center’s determination. (R.R., Item No. 9.) The Referee 

made the following findings of fact:

1. The claimant was employed by Jeffrey Fremont PHD 

as a therapeutic staff support with a final rate of pay 

of $15.50 per hour on a part-time basis with the 
4

claimant working between 30 and 35 hours per 

week[,] having begun her employment on December 

10, 2012. 

2. The claimant’s last day of work was August 23, 2013.

3. On August 5, 2013, the claimant told her supervisor[,] 

the behavioral services consultant[,] that she had lost 

her babysitter and that she was quitting her 

employment.

4. The behavioral services consultant told the claimant 

she should speak with Jane Andrews[,] the practice 

manager.

5. At the time that the claimant informed her supervisor, 

the behavioral services consultant, that she had a 

childcare issue, she also told her she was quitting her 

employment.

6. The claimant did not discuss the situation with the 

practice manager who acts as the HR person for the 

employer.

7. The claimant did not exhaust all alternatives prior to 

quitting.

(R.R., Item No. 9.) The Referee determined that Claimant voluntarily terminated 

her employment and failed to show cause of a necessitous and compelling nature 

for doing so. (Id.) The Referee explained that “it is the responsibility of the 

claimant to take steps to maintain the employer/employee relationship[,] and 

simply telling the employer that she lost her babysitter and that she was quitting as 

a result of it does not meet the requirements for maintaining the 

employer/employee relationship.” (Id.) 

Claimant appealed to the Board, which affirmed the Referee’s 

decision and order. (R.R., Item No. 14.) In so doing, the Board adopted and 

incorporated the Referee’s findings and conclusions, adding: 
5

[T]he Board finds that the claimant quit her employment 

due to a change in childcare. The Board also finds that 

the claimant did not investigate other alternatives 

including the cost of daycare, the cost of other 

babysitters, or whether short-term leave was available to 

her. Further, the claimant presented insufficient credible 

evidence to show that any other childcare arrangement 

was unaffordable. Finally, the Board finds credible the 

employer’s testimony that it informed the claimant that 

she should contact the practice manager to ascertain 

whether other shifts, work schedules or decreased hours 

would be available to her. However, the claimant did not 

contact the practice manager and did not request an 

accommodation.

(R.R., Item No. 14.) Claimant now petitions this Court for review.

On appeal,2 Claimant essentially argues that the Referee’s findings of 

fact, as adopted and incorporated by the Board, were not supported by substantial 

evidence of record. Specifically, Claimant challenges finding of fact number 

seven, which provides: “The claimant did not exhaust all alternatives prior to 

quitting.” (R.R., Item No. 9.) In support of her argument, Claimant states that 

Employer never contacted her in an effort to provide her with alternative work 

options. Further, Claimant contends that she has provided a necessitous and 

compelling reason for terminating her employment as evidenced by “the 

employer[’s] refus[al] to review and provide any alternative in accordance with 

testimony that they did not care to work with the Petitioner under any 

circumstance.” (Petitioner’s Br. at 13.) 

 

2

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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704.
6

Section 402(b) of the Law provides, in part, that a claimant shall be 

ineligible for compensation for any week in which the claimant’s “unemployment 

is due to voluntarily leaving work without cause of a necessitous and compelling 

nature.” Whether a claimant had cause of a necessitous and compelling nature for 

leaving work is a question of law subject to this Court’s review. Brunswick Hotel 

& Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 

661 (Pa. Cmwlth. 2006). A claimant who voluntarily quits his employment “bears 

the burden of proving that necessitous and compelling reasons motivated that 

decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 

1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish 

cause of a necessitous and compelling nature, a claimant must establish that (1) 

circumstances existed that produced real and substantial pressure to terminate 

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 his employment. Procito v. 

Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008).

Substantial evidence is defined as relevant evidence upon which a 

reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of 

Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is 

substantial evidence to support the Board’s findings, this Court must examine the 

testimony in a light most favorable to the prevailing party, giving that party the 

benefit of any inferences that can logically and reasonably be drawn from the 

evidence. Id. A determination as to whether substantial evidence exists to support 

a finding of fact can only be made upon examination of the record as a whole. 

Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The 
7

Board’s findings of fact are conclusive on appeal only so long as the record, taken 

as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 

485 A.2d 359, 365 (Pa. 1984). 

In an unemployment compensation case, it is well-settled that the 

Board is the ultimate fact finder and is, therefore, 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). The Board 

is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment 

Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). “Questions of 

credibility and the resolution of evidentiary conflicts are within the sound 

discretion of the Board, and are not subject to re-evaluation on judicial review.” 

Peak, 501 A.2d at 1388.

Here, the record, including Claimant’s own testimony, reveals that she 

did not make a reasonable effort to preserve her employment. Ms. Simon-Long 

told Claimant that she should look into the possibility of only working for a few 

hours during the day, but Claimant provided no evidence showing that she did so. 

Claimant asserted that she felt that she “[had no] choice but not to go to work,” 

because Employer never contacted her to make any accommodations. (R.R., Item 

No. 4 at 14a.) Employer’s failure to contact Claimant in order to provide her with 

alternative options, however, is immaterial for two reasons: (1) the burden is on

Claimant, not Employer, to make a reasonable effort to preserve her employment; 

and (2) the Board found Employer credible in its testimony that Ms. Simon-Long 

told Claimant to contact Employer’s office to “ascertain whether other shifts, work 

schedules or decreased hours would be available to her,” but Claimant failed to do 

so. (R.R., Item No. 8.) Essentially, Employer, through Ms. Simon-Long, did 
8

suggest a possible alternative to Claimant, but Claimant chose not to pursue it. 

Thus, a review of the record as a whole and in a light most favorable to Employer, 

as the prevailing party, shows that substantial evidence does support the Referee’s 

finding, as adopted by the Board, that Claimant failed to exhaust all alternatives 

prior to quitting. Thus, Claimant did not make a reasonable effort to preserve her 

employment. Claimant, therefore, failed to show that she terminated her 

employment for a cause of a necessitous and compelling nature.

Accordingly, we affirm the order of the Board. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle A. Bankes, :

Petitioner :

:

v. : No. 184 C.D. 2014

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 27th day of August, 2014, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

 

 P. KEVIN BROBSON, Judge