IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Fahnestock, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 110 C.D. 2020

Respondent : Submitted: September 15, 2020 

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: October 1, 2020

Mark Fahnestock (Claimant) petitions for review from the January 17, 

2020 order of the Unemployment Compensation Board of Review (Board) that 

affirmed the Referee’s decision finding him ineligible for unemployment 

compensation benefits. The Board concluded that Claimant was ineligible for 

benefits because he failed to meet his burden of showing that he terminated his 

employment for a necessitous and compelling reason pursuant to Section 402(b) of 

the Unemployment Compensation Law (Law).1 Discerning no error by the Board, 

we affirm. 

 

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 a claimant is ineligible for compensation if his unemployment 

is due to his voluntarily leaving employment without cause of a necessitous and compelling nature. 

Id. 
2

On October 31, 2017, Eagle Express Lines, Inc. (Employer) hired 

Claimant as a full-time truck driver. Board Findings of Fact (F.F.___) 1; Certified 

Record (C.R.) Item. No. 17, Transcript of Testimony (T.T. at ___) dated 10/29/19 at 

4. Initially, Claimant started his shift at 6:30 a.m. at Employer’s facility in Lancaster, 

Pennsylvania. F.F. 2; T.T. at 5. In July 2019, Employer notified Claimant that, 

beginning on August 16, 2019, he would start his shift at 5:00 a.m. at its facility in 

Harrisburg, Pennsylvania. F.F. 3; T.T. at 5. 

On August 16, 2019, Claimant arrived at Employer’s Harrisburg 

facility, retrieved a truck, and unsuccessfully looked for an empty trailer. F.F. 4; 

T.T. at 8. Claimant then drove to Employer’s Lancaster facility hoping he would 

find an empty trailer there. F.F. 5; T.T. at 9. Claimant’s supervisor called him and 

was upset that Claimant left the Harrisburg facility without a trailer. F.F. 6; T.T. at 

8. Claimant complained to his supervisor that no trailers were available, requested 

that a higher supervisor contact him, and hung up his phone. F.F. 7; T.T. at 8. A 

higher supervisor called Claimant, and Claimant expressed concern that changing 

the starting point of his route and not having an empty trailer available would prevent

him from completing his route within his legally limited schedule.2 F.F. 8; T.T. at 

8. The higher supervisor notified Claimant that the other supervisor wrote him up 

for insubordination for hanging up on her. F.F. 9; T.T. at 8. Claimant notified the 

higher supervisor that he could not work the Harrisburg route and requested that he 

be able to return to work that dispatched from Lancaster. F.F. 10; T.T. at 8. The 

higher supervisor advised Claimant that his route was not going to change back to 

 

2 By law, Claimant had to complete his drive within 14 hours and could only drive 11 hours 

total. See 49 C.F.R. § 395.3(a) (providing that a commercial driver may drive up to 11 hours in a 

14-hour work period before having a 10-hour break). 
3

the 6:30 a.m. start time in Lancaster, as the company wanted the “changes to the 

run” and “there was no other way.” F.F. 9; T.T. at 8. 

Two days later, on August 18, 2019, Claimant applied for 

unemployment compensation benefits and the Department of Labor and Industry 

(Department) issued a notice of determination finding him ineligible for benefits 

pursuant to Section 402(b) of the Law, 43 P.S. § 802(b). C.R. Item No. 6, Notice of 

Determination dated 9/13/19 (Notice of Determination) at 1. Claimant appealed the 

Department’s decision to the Referee, who held a hearing on the matter. At the 

hearing, Claimant was represented by counsel and testified on his own behalf. T.T. 

at 1-2. Employer did not appear at the hearing or present any evidence. Id. 

After the hearing, the Referee issued a decision and order affirming the 

Department’s decision finding Claimant ineligible for benefits. Referee’s 

Decision/Order dated 10/31/19 (Referee’s Decision) at 1. The Referee found 

Claimant’s testimony not credible to the extent Claimant argued that he was

discharged or “about to be discharged” for insubordination. Id. at 2. The Referee 

further rejected Claimant’s assertion that his travel time would total more than 14 

hours in violation of the legal limit because “[t]here was no indication that the 

Claimant worked his full scheduled shift on August 16, 2019, and he admittedly quit 

at some point in the middle of his shift.” Id. at 2. The Referee explained that 

“Employer has the right to make reasonable modifications to an employee’s work 

duties.” Id. at 2. Based on the evidence presented, the Referee concluded that the 

Employer’s start time and change in location were not a “substantial unilateral 

change” to Claimant’s working conditions, and that Claimant provided only 

“personal reasons for refusing to accept the new time and starting point.” Id. at 2-3. 

Claimant appealed the Referee’s decision to the Board, which affirmed. 
4

In affirming the Referee, the Board concluded that Claimant did not 

credibly establish a necessitous and compelling reason for terminating his 

employment. Board’s Opinion dated 1/17/20 (Board’s Opinion) at 3. The Board 

found that Claimant’s employment was voluntary and that he quit because his route 

changed. Id. at 2. The Board explained,

[t]he crux of . . . [C]laimant’s complaint was not that he 

had a longer commute to work, but rather that, with his 

route starting from a different point, he no longer could 

drive his route in the legally limited schedule, which was 

compounded by the lack of an empty trailer in Harrisburg. 

[C]laimant has not credibly established that changing the 

starting point of his route so materially altered his work 

that he could no longer legally complete it. . . . 

[C]laimant’s one-time difficulty finding an empty trailer 

in Harrisburg also does not help him meet his burden 

because he did not advise [] [E]mployer of his inability to 

find a trailer in Harrisburg while he was in Harrisburg. . . 

. [C]laimant, on his own motivation, returned to Lancaster 

to find an empty trailer. 

Id. at 2-3. Claimant now petitions this Court for review.3

To be eligible for unemployment compensation benefits upon 

voluntarily leaving work, a claimant must prove that he had cause of a necessitous 

and compelling nature to leave his employment. Watkins v. Unemployment Comp. 

Bd. of Review, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013); Solar Innovations, Inc. v.

Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). To 

meet this burden, a claimant must show that

 

3 This Court’s review is limited to determining whether constitutional rights were violated, 

whether errors of law were committed, and whether findings of fact are supported by substantial 

evidence. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 

2008). In unemployment compensation proceedings, the Board is the ultimate finder of fact. Sipps 

v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 484 (Pa. Cmwlth. 2018). 
5

(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 [his] employment.

Solar Innovations, Inc., 38 A.3d at 1056 (citing Brunswick Hotel & Conference Ctr., 

LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 

2006)). The determination of whether a claimant had a necessitous and compelling 

reason for quitting is a legal conclusion subject to this Court’s plenary review. 

Craighead-Jenkins v. Unemployment Comp. Bd. of Review, 796 A.2d 1031, 1033 

(Pa. Cmwlth. 2002). 

Claimant asserts that he had a necessitous and compelling reason to 

terminate his employment because Employer “substantially changed the conditions” 

of his position “by altering the start location/start time and increasing the hours of 

the job,” which placed him in jeopardy of violating the laws that govern the 

maximum hours he could work. Claimant’s Brief at 8, 12. Claimant argues that he 

attempted to address these concerns with Employer, but Employer refused to do so. 

Id. Claimant further states that

[w]hen [he] . . . attempt[ed] to perform the Harrisburg run 

on the one occasion, he was unable to meet [] Employer’s 

timeline and, as a result of attempting to address this with 

[] Employer, was disciplined. Based on these 

circumstances, [Claimant] quite reasonably felt that he had 

no choice but to resign. 

Id. at 12-13. Though Claimant contends that he attempted to meet Employer’s 

timeline, the record does not support this assertion. 
6

Claimant did not offer evidence to prove that he finished, or even tried 

to finish, driving the entire route from Harrisburg. Claimant testified: 

When my route was started in Lancaster, it was actually 

hard to complete . . . within our legal 14-hour day of 

working–11 hours of drive time and 14 hours total on duty 

and drive [sic]. I told [the supervisors] that starting in 

Harrisburg would . . . be adding time to the route and make 

it harder to complete it on time and if not impossible to 

complete it within a 14-hour day. It was a route that was 

driving 600 plus miles a day with 5 stops, so it was a long 

enough day starting in Lancaster and by [Employer] 

changing it, [Employer was] making it almost impossible

for me to do starting in Harrisburg. 

T.T. at 6 (emphasis added). Claimant testified that “I had no choice but to resign 

because the new schedule was not possible for me to do.” Id. at 7.

It is well established that an employer is entitled to modify employment 

specifications with regard to time, place, and manner. Monaco v. Unemployment 

Comp. Bd. of Review, 565 A.2d 127, 129 (Pa. 1989). The only restriction on that 

privilege is that an employer act reasonably and in good faith. Id. An employee 

must abide by the employer’s decision to change the conditions of employment 

where reasonable. Donaldson v. Unemployment Comp. Bd. of Review, 496 A.2d 

1370, 1372 (Pa. Cmwtlh. 1985). It is also true, however, that “an employer’s 

imposition of a substantial unilateral change in the terms of employment constitutes 

a necessitous and compelling cause for an employee to terminate his employment.” 

Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181, 187 (Pa. Cmwlth. 

2015) (brackets omitted). Whether a change is “so substantial as to warrant 

necessitous cause for terminating employment” must be determined on a case by 

case basis. Brunswick Hotel, 906 A.2d at 660. Substantiality is measured by the 

impact on the employee and whether the change involves any real difference in 
7

employment conditions. See Yingling v. Unemployment Comp. Bd. of Review, 228 

A.3d 289, 298 (Pa. Cmwlth. 2020) (citing McCarthy v. Unemployment Comp. Bd. 

of Review, 829 A.2d 1266, 1272 (Pa. Cmwlth. 2003)). A claimant must “prove that 

the job modifications were unreasonable and rose to the level of circumstances 

which would compel a reasonable person to terminate employment.” Unangst v. 

Unemployment Comp. Bd. of Review, 690 A.2d 1305, 1308 (Pa. Cmwlth. 1997); see 

also McKeown v. Unemployment Comp. Bd. of Review, 442 A.2d 1257, 1258 (Pa. 

Cmwlth. 1982) (providing that the claimant must show “not only that his working 

conditions have changed but also that the change was unreasonable”). 

Here, Claimant failed to prove that Employer’s job modifications were 

unreasonable or rose to the level of circumstances that would compel a reasonable 

person to terminate his employment. Claimant did not offer any evidence showing 

that the route starting from Harrisburg earlier, rather than Lancaster later, was any 

longer or could be problematic with the legal limit. While Claimant testified that “it 

[wa]s not going to be possible” to complete his route on time, this fear was merely 

speculation about what he could actually do. See Unangst, 690 A.2d at 1308. 

Claimant explained that the Lancaster route was 600 miles long with 5 stops that had 

to be finished within 14 hours, with only 11 hours of drive time; that it was “hard to 

complete”; and that starting in Harrisburg would make it “harder to complete.” T.T. 

at 6. However, Claimant offered no details about his Lancaster route or how 

Employer’s changes in start location and time rendered him unable to meet the legal 

limit without the one-time issue he experienced with the trailer. Even if Claimant’s 

concern about the legal limit was reasonable, Claimant did not advise Employer of 

his inability to find an empty trailer before he left Harrisburg. Board’s Opinion at 

2; T.T. at 9. 
8

Because Claimant did not attempt to complete the route starting at 5 

a.m. from Harrisburg, Claimant could not confirm his beliefs that he could not 

complete the route within the time required by law, or that Employer’s expectations

were unreasonable or rose to the level of circumstances that would compel a 

reasonable person to terminate his employment. See Unangst, 690 A.2d at 1308

(holding that the claimant did not meet her burden of showing a substantial change 

in her conditions of employment when she made no effort to comply with the 

employer’s change in conditions); Cf. Yingling, 228 A.3d at 301 (holding that the 

claimant met his burden of showing a substantial change in employment conditions 

where the claimant presented evidence showing that the employer’s change in a 

work condition was unreasonable and made a difference in his employment).

Consequently, Claimant failed to meet his burden of proving that he had a 

necessitous and compelling reason to terminate his employment and, therefore, the 

Board properly found Claimant ineligible for benefits under Section 402(b) of the 

Law. 

Accordingly, we affirm. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge

Judge Brobson did not participate in this decision 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Fahnestock, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 110 C.D. 2020

Respondent :

O R D E R

AND NOW, this 1st day of October, 2020, the January 17, 2020 order 

of the Unemployment Compensation Board of Review is AFFIRMED. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge