IN THE COMMONWEALTH COURT OF PENNSYLVANIA

ABA Support Services, LLC, :

Petitioner :

:

v. : No. 929 C.D. 2017

: Submitted: March 9, 2018

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: April 5, 2018

ABA Support Services, LLC (Employer) petitions for review of the 

Unemployment Compensation Board of Review’s (Board) decision finding Judith 

Herrera (Claimant) eligible for unemployment compensation (UC) benefits because 

she had a necessitous and compelling reason for leaving her employment due to fear 

for her personal safety pursuant to Section 402(b)1 of the Unemployment 

Compensation Law (Law). For the following reasons, we affirm.

 

1 Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, 

Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b), provides that an employee is

ineligible for benefits for any week “[i]n which her unemployment is due to voluntarily leaving 

work without cause of a necessitous and compelling nature.”
2

I.

The facts are not in dispute. Employer provides therapeutic services to 

children with special needs, including those with acute to moderate behavioral issues. 

Claimant began working for Employer as a full-time biller on December 27, 2016. 

When she was first hired, Employer informed Claimant that she would not deal with 

clients directly. Claimant worked in the administrative offices, located in the front of 

the building away from the classroom in the back where clients received services. At 

some point during Claimant’s employment, she began to feel unsafe when a teenage 

female client grew increasingly volatile. This particular client required two-to-one 

services, meaning that two adults were required to care for her at all times. The client 

would regularly run out of the classroom to the administrative offices, including 

Claimant’s own office, where she would bang on the office door and scream while 

therapists attempted to restrain her.

Claimant voiced her concerns to Employer. Employer instructed her to 

lock herself in her office when the client became volatile and assured her that it

would attempt to obtain approval for three-to-one care for the client. However, 

Employer was ultimately unable to obtain such approval. One of the client’s 

therapists, Rebecca Sutton (Sutton), allowed Claimant to take photos of several large 

bruises on Sutton’s arms that she sustained during one of the client’s outbursts. On 

another occasion, Claimant used her cell phone to record the client’s outburst when 

she banged loudly on Claimant’s door.

On January 23, 2017, the client had an outburst that required five of the 

staff to restrain her. Afterwards, the police were called and they wrote a report to 
3

establish the aggressive behavior. Upset over the incident, Claimant left work and, 

the following day, voluntarily quit her job.

Claimant then applied for UC benefits, citing both personal reasons and 

health reasons for her voluntarily leaving employment. When the UC Service Center 

(Service Center) called Claimant to determine whether she left employment for 

personal or health reasons, Claimant answered:

I quit because it was an unsafe work environment that 

affected my health. I was injured there, had to go to urgent 

care and had to keep my door locked. I was never made 

aware when hired how the work environment was.

(Reproduced Record (R.R.) at 11a.) The Service Center issued a Notice of 

Determination finding Claimant eligible for UC benefits for leaving her employment 

because of the unsafe work environment. Employer appealed.

Before the Referee, Claimant recounted that at the beginning of her 

employment, Employer informed her that she would have no direct contact with 

clients. Employer then asked her how she felt the client was a direct threat to her if 

she did not work directly with the client. She answered:

Because when the client comes from the back of the 

classroom and literally ends up inches from my door 

banging and beating up her therapist as well as our boss, as 

well as a male therapist, that becomes a problem and that 

becomes a safety issue to myself.

(R.R. at 35a.)
4

Claimant also submitted into evidence photos of the bruising on Sutton’s 

arm, compact discs containing audio recordings of Employer’s client violently 

banging on Claimant’s door, her resignation letter and a statement written by Sutton 

regarding the unsafe nature of Employer’s work environment. Employer did not 

object to the introduction of any of this evidence on the basis of hearsay.

2

Dulce Taveras, Employer’s Director of Human Resources, testified that 

when Claimant began working, she was aware that Employer was a provider of 

services to children with “behaviors under the spectrum” and that the workplace was 

not just an administrative office. (R.R. at 38a.) When asked why Employer called 

the police on January 23, 2017, after the client’s violent outburst, Employer 

responded:

[W]hen they had four or five people restraining her and she 

would not subdue out of her behavior, due to Pennsylvania 

laws the police had to be called to write a report because we 

were in the process of proving to the State that the child has 

such aggressive behaviors that we needed more care than 

two-to-one. She was in – we were entering a pilot program 

with that client so that we can help other clients with similar 

aggressive behaviors and for the State to approve four-toone care versus one-on-one or two-to-one for . . . our 

children in the State of Pennsylvania.

(R.R. at 37a.)

 

2 The only objection Employer made was to the recordings on the basis that they violated the 

client’s confidentiality under the Health Insurance Portability and Accountability Act of 1996 

(HIPAA), Pub.L. 104 – 191, 110 Stat. 1936. The Referee overruled this objection, as the recordings 

failed to provide any identifiable information about the client.
5

The Referee found Claimant eligible for benefits because her reason for 

leaving work – that she had a valid concern for her personal safety – was of a 

necessitous and compelling nature. The Referee also found that Claimant had 

properly raised her concerns with Employer and it was reasonable for her to believe 

that her safety concerns would not be addressed, leaving her no other alternative but 

to resign. Employer appealed to the Board, which affirmed. In addition to adopting 

the Referee’s findings, the Board also found that “When hiring [Claimant], 

[Employer] informed [Claimant] that she would not be dealing with the clients 

directly.” (R.R. at 62a.) This petition for review followed.3

II.

Employer contends the Board’s finding that Claimant had a necessitous 

and compelling reason to quit her employment is not supported by substantial 

evidence because Claimant did not establish that she was in danger and her fear of 

harm was to others’ safety rather than her own.

 

3 Our scope of review is limited to determining whether the findings of fact are supported by 

substantial evidence, whether an error of law was committed, or whether any of the parties’ 

constitutional rights were violated. Feinberg v. Unemployment Compensation Board of Review, 

635 A.2d 682 (Pa. Cmwlth. 1993). Substantial evidence is relevant evidence upon which a 

reasonable mind could base a conclusion. Johnson v. Unemployment Compensation Board of 

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

support the Board’s findings, this court must examine the testimony in the light most favorable to 

the prevailing party, giving that party the benefit of any inferences which can logically and 

reasonably be drawn from the evidence. Id. The 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. Taylor 

v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
6

Under Section 402(b) of the Law, a claimant is ineligible for benefits for 

any week in which her unemployment is due to voluntarily leaving work without 

cause of a necessitous and compelling nature. 43 P.S. § 802(b).

To prove a necessitous and compelling reason for leaving 

employment, a claimant must demonstrate the following: 

(1) circumstances existed that 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.

Havrilchak v. Unemployment Compensation Board of Review, 133 A.3d 800, 804 

(Pa. Cmwlth. 2015). A reasonable fear for one’s safety can constitute necessitous and 

compelling cause to voluntarily terminate employment. Howell v. Unemployment 

Compensation Board of Review, 501 A.2d 718 (Pa. Cmwlth. 1985).

Moreover, that reasonable belief does not have to be based upon a direct 

threat of harm, but only a reasonable perceived threat. In Hoy v. Unemployment 

Compensation Board of Review, 391 A.2d 1144 (Pa. Cmwlth. 1978), claimants quit 

their positions at a store around the time when two murder/robberies were committed 

in the county at retail stores similar to their employer’s. The suspect was believed to 

be in the area. After voicing their concerns with their manager, claimants were 

instructed that they were not to close the store early without permission, and, if they 

feared for their safety, they were to lock the doors and wait for the police to arrive. In 

that case, we held that claimants’ fear for their personal safety was reasonable and 

their reason for leaving employment was of a necessitous and compelling nature.
7

In this case, Claimant had a necessitous and compelling reason for 

leaving her employment – fear for her personal safety because Employer was unable 

to control the client’s violent tantrums, which were growing progressively worse.

Claimant informed Employer about her safety concerns, yet Employer was unable to 

prevent the client from repeatedly assaulting and injuring staff, escaping her 

classroom, running through the building, damaging furniture, and running to 

Claimant’s office where she would scream, and pound on Claimant’s locked office 

door and try to break the glass window before being forcibly subdued by up to five 

staff members. Furthermore, the only reason that Claimant had not been directly 

harmed is because the client had not yet succeeded in breaking down Claimant’s 

office door. Given these facts, Claimant has shown that the danger was real and not 

merely perceived as dangerous, and that she gave Employer adequate opportunity to

address her safety concerns.4

 

4 Employer contends that the Board impermissibly relied upon hearsay, specifically, a

written statement by Sutton recounting the dangers posed by the client, as well as photos taken by 

Claimant showing the injuries Sutton sustained while dealing with that client. While hearsay 

evidence, properly objected to, is not competent evidence to support a finding of the Board, 

“hearsay evidence admitted into evidence without objection will be given its natural probative effect 

and may support a finding of the Board if it is corroborated by any competent evidence in the 

record.” Bailey v. Unemployment Compensation Board of Review, 597 A.2d 241, 243 (Pa. Cmwlth. 

1991). The photos are not hearsay evidence. Aside from the fact that Claimant herself took them,

Claimant also, without objection, testified that she possessed “pictures of one of [the client’s] 

therapists who gave [her] permission to submit [pictures] of her injuries [Sutton] sustained because 

of that client.” (R.R. at 31a.) While Sutton’s statement that the client caused her injuries is hearsay, 

it was admitted without objection and corroborated by Employer’s apparent admission that the 

pictures did reflect injuries sustained by Sutton at the hands of the client. When asked by the 

Referee about Sutton’s injuries depicted in the photographs, Employer's witness responded, “And 

that is what -- those are the therapists . . . who work with aggressive children and anyone who 

works with aggressive children has training, knows what . . . can happen. . . .” (R.R. at 37a.)
8

Despite these facts, Employer contends this case is analogous to Green 

Tree School District v. Unemployment Compensation Board of Review, 982 A.2d 573 

(Pa. Cmwlth. 2009). In that case, the claimant, the director of education of a school 

for autistic children, resigned because the school’s elimination of one “behavior 

coordinator” position rendered her unable to ensure the safety of the students and the 

staff. We held that the claimant was ineligible for benefits because she did not testify 

that she was personally in danger, only that others may be in danger. We also found 

her ineligible because for the danger to be “real,” the test is not whether a claimant’s 

belief is a genuine one but, rather, whether the claimant has demonstrated that the 

workplace environment has placed “real,” i.e., actual and extreme pressure on the 

claimant to leave her employment. Id. at 578.

Unlike in Green Tree, as previously recounted, Claimant, in this case,

demonstrated that she was personally in danger because the violent behavior

repeatedly occurred right outside her office door, and was directed at her personally,

and she was compelled to take refuge from the violent client by locking her office 

door.

Based on the findings made by the Board, which were supported by 

substantial evidence, it was reasonable for Claimant to fear for her personal safety 

and leave her employment. Accordingly, the Board’s decision is affirmed.

_________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

ABA Support Services, LLC, :

Petitioner :

:

v. : No. 929 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 5

th day of April, 2018, the Unemployment 

Compensation Board of Review’s order dated June 9, 2017, is affirmed.

_________________________________

DAN PELLEGRINI, Senior Judge