IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wendy Hixen, :

Petitioner :

:

v. : No. 529 C.D. 2016

: Submitted: November 4, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: December 1, 2016

Wendy Hixen (Claimant) petitions, pro se, for review of an order of 

the Unemployment Compensation (UC) Board of Review (Board) finding her 

ineligible for benefits under Section 402(b) of the Unemployment Compensation 

Law (Law)1because she voluntarily quit her employment with Teletech Service 

 

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

802(b). Under Section 402(b) of the Law, an individual is not eligible for unemployment 

compensation benefits if his or her unemployment is due to “voluntarily leaving work without 

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

compelling cause” occurs under circumstances where there is a real and substantial pressure to 

terminate one’s employment that would compel a reasonable person to do so. See Smithley v. 

Unemployment Compensation Board of Review, 8 A.3d 1027, 1030 (Pa. Cmwlth. 2010). A 

claimant in an unemployment case bears the burden of proving necessitous and compelling 

reasons for quitting. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 

(Footnote continued on next page...)
2

Corporation (Employer) without cause of a necessitous and compelling nature. We 

affirm.

I.

From September 24, 1998, through November 23, 2015, Claimant was 

employed by Employer as a Quality Specialist and was responsible for monitoring 

recorded calls so as to ensure compliance with Employer’s specified guidelines. 

On November 24, 2015, Claimant filed for UC benefits stating that she voluntarily 

quit her job because of a “[h]ostile work environment/stress,” further explaining, in 

pertinent part:

I recently requested to have 3 days of personal time off in 

which I currently have 140 hours of [paid time off] time 

accumulated. I was told by [my manager, Toni HarpHartzell, that] I could not have the time off [because] I 

have not reached my numbers for the month, [and] I 

responded [that] . . . I understood and I would be at work 

. . . . She then scheduled a meeting via . . . telephone, 

telling me I was not a top performer [and that] everyone 

had to be held accountable for not reaching [their] goal. I 

repeated I understood [and] I would be at work. While 

still having the [telephone conversation], she then told 

our service delivery manager[,] Terri Frost[, that] she 

wanted her to watch me during those 3 days to make sure 

I was not saying anything verbally against the company 

policies or showing a negative attitude. I then told 

 

(continued...)

716 (Pa. Cmwlth. 2005). The claimant must prove that he or she acted with ordinary common 

sense in quitting and made a reasonable, good faith effort to preserve the employment 

relationship. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 58, 

61 (Pa. Cmwlth. 1996).
3

[Harp-Hartzell that] I was offended with that comment[,] 

that I was not a child [and] did not appreciate being 

talked down to [and] being treated that way. I then told 

her she did not have to worry about me [and] walked out 

of the [telephone] meeting giving my work badge to the 

service delivery manager[,] Terri Frost.

(Record (R.) Item 2, Internet Initial Claims, 11/24/2015.) Employer, in response, 

asserted that it did not know why Claimant voluntarily quit her job and indicated 

that continuing work was available for Claimant had she not voluntarily quit.

On December 8, 2015, the Indiana UC Service Center (Service 

Center) denied Claimant benefits because she failed to exhaust all alternatives2

prior to voluntarily quitting her job as required by Section 402(b) of the Law, 43 

P.S. § 802(b). Claimant appealed and a hearing was scheduled before an 

Unemployment Compensation Referee (Referee). Shortly thereafter, Employer 

“requested a telephone hearing as the employer is not available in person. . . . The 

witness will be Toni Harp-Hartzell and she is located in Missouri.” (R. at Item 8, 

Employer Request for Telephone Hearing, 12/28/2015.) The Referee granted 

 

2 When a claimant voluntarily terminates his or her employment, he or she is ineligible 

for benefits unless he or she left the employment for a necessitous and compelling cause. Nolan 

v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046 (Pa. Cmwlth. 2002). A 

claimant has failed to meet the burden of demonstrating a necessitous and compelling cause 

where he or she has failed to take all necessary and reasonable steps to preserve the employment 

relationship, and a claim for benefits upon the voluntary termination of that employment must be 

rejected. Id. at 1046-47.
4

Employer’s request and then notified Claimant of his decision. Neither Claimant 

nor her attorney3objected to Employer’s Request for Telephone Hearing.

At the hearing before the Referee, Claimant testified that Toni HarpHartzell (Supervisor) was her intermittent supervisor for several years, but that she 

never communicated with her in person. While Claimant admitted that the two of 

them “got along” mostly, she did indicate that they “disagree[d] on some issues” 

and that there were “instances of friction” between them. (R. Item 10, Referee’s 

Hearing: Transcript of Testimony, 1/11/2016 at 6.) Claimant stated that in early 

November 2015, she requested paid time off for the day before and the two days 

following Thanksgiving because she wanted to be with her family and because she 

was approaching the maximum amount of paid time off that she was permitted to 

accrue. The Supervisor, however, denied this request because Claimant was 

substantially behind on her required work for the month. Although Claimant said 

she understood and agreed to work on the days surrounding the holiday, the 

Supervisor scheduled a telephone meeting with her to further discuss the matter.

On November 23, 2015, a telephone meeting was held between the 

Supervisor, Claimant and another manager that was physically present with 

Claimant. At the outset of the telephone meeting, the Supervisor explained the 

reasons for denying Claimant’s request and assured her that there were several pay 

 

3 At the hearing before the Referee, it was acknowledged by Claimant’s counsel that they 

each received notice that the Referee granted Employer’s Request for Telephone Hearing. (R. 

Item 10, Referee’s Hearing: Transcript of Testimony, 1/11/2016.) Claimant is no longer 

represented by previous counsel and petitions, pro se, for review.
5

periods remaining before she could no longer accrue paid time off. However, after 

some discussion, the Supervisor eventually permitted Claimant to take the 

requested paid time off to be with her family, which Claimant declined. Claimant 

stated that the Supervisor then instructed the other manager to monitor her to 

ensure that she did not damage or steal any of Employer’s property. Claimant 

responded that she was offended by the instruction and told the Supervisor that she 

“didn’t have to worry about me.” Id. at 9. She then placed her employee badge on 

the table and walked out of the room. Security escorted her out of the building.

When asked why Claimant decided to voluntarily quit, she explained:

It was [the Supervisor’s] tone and how she talked to me, 

the way she said take time with your family and then 

after she told [the other manager] to watch me, I was

offended with that comment. . . . I was really offended 

and taken back by that conversation. It was – I didn’t 

understand why we had a meeting after I had clearly told 

her in an email that I understood there was no problem, I 

would be there.

(R. Item 10, Referee’s Hearing: Transcript of Testimony, 1/11/2016 at 10.) 

Claimant admitted that she did not take any steps toward remedying the situation 

or keeping her employment prior to handing in her badge.

Employer then presented the testimony of the Supervisor. Notably, 

during the beginning portions of the Supervisor’s testimony, the Referee inquired 

whether she was using notes or mechanisms that were providing her information 

not contained in the record. After admitting that she was making reference to an 
6

email chain, the Referee instructed her to “close it up and do not make reference to 

it.” Id. at 16.

After complying with the Referee’s instruction, the Supervisor went 

on to deny telling any manager to monitor Claimant prior to the moment that she 

turned in her badge and quit. When asked about her tone toward Claimant, the 

Supervisor also explained that she had “a very firm tone [throughout the meeting] 

and I had a . . . no nonsense attitude.” Id. at 17. She stated that continued work 

would have been available for Claimant had she not voluntarily quit.

After the Supervisor provided her testimony, the Referee then

inquired into “background noise like bings or whatever,” which she explained was 

coming from her Cisco Softphone and resulted “because I’m dialed in over the 

Internet, you’re hearing the pings of mail or the system stating live, that’s all that 

you’re hearing.” (R. Item 10, Referee’s Hearing: Transcript of Testimony, 

1/11/2016 at 18.) The Referee accepted the Supervisor’s explanation and no

objections were made by Claimant.

The Referee denied Claimant UC benefits because she voluntarily quit 

her job without a necessitous and compelling reason as required by Section 402(b) 

of the Law, 43 P.S. § 802(b). Claimant appealed and the Board affirmed finding, 

in pertinent part, that she voluntarily quit her job because she did not like the 

Supervisor’s tone of voice when she was informed that she could take paid time off

for the Thanksgiving holiday period. Moreover,
7

[t]he Board notes the conflicts in testimony and credits 

the [S]upervisor’s testimony that she did not ask the other 

manager to watch the [C]laimant and escort her out until 

after the [C]laimant had verbally quit and turned in her 

employee badge. There is no reason for the supervisor to 

have said that prior to the [C]laimant’s quit.

(R. Item 13, Board’s Decision/Order, 3/1/2016 at 2.) Claimant then filed this 

petition for review.

II.

On appeal,4 Claimant contends that the Board erred when accepting 

the Supervisor’s testimony because she provided her testimony by telephone and 

admitted to relying on documents that were not entered into the record. The 

Board’s telephone hearing regulation provides, in pertinent part:

(a) The tribunal may schedule, on its own motion, 

testimony by telephone of a party or witness when it 

appears from the record that the party or witness is 

located at least 50 miles from the location at which the 

tribunal will conduct the hearing, without regard to State 

boundaries.

* * *

(d) The tribunal will promptly rule on a request that 

testimony be taken by telephone after a reasonable 

attempt has been made to inform the parties of the 

request, the basis for the request, the regulations under 

 

4 Our review of the Board’s decision 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. Middletown Township v. Unemployment

Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
8

which telephone testimony can be taken, and the right of 

a party to object. The basis for the request, the position 

of the parties, if known, and the ruling will be 

documented on the record.

34 Pa. Code §§ 101.128(a), (d). The Board’s regulations also provide:

(h) A document not provided as required by § 101.130(e) 

(relating to notice of testimony by telephone and use of 

documents) may not be admitted nor testimony given or 

taken from it unless consent has been requested from and 

given by all parties. Testimony taken or given in 

violation of this subsection will be excluded from 

consideration, as will the document.

34 Pa. Code § 101.131(h).

Contrary to Claimant’s assertion, the Board did not err when 

accepting and crediting the Supervisor’s telephone testimony because Claimant 

received notice of Employer’s Request for Telephone Hearing, and without 

objection, permitted the Supervisor to testify by telephone at the hearing because 

she was located in Missouri. While the Supervisor may have initially referred to 

documents that were not part of the record, the Referee directed her to discontinue 

using any documents before her, and both the Referee and the Board accepted her 

testimony as credible. We will not disturb that determination on appeal. As we 

have explained, “Matters of credibility and evidentiary weight are within the 

province of the Board.” BK Foods v. Unemployment Compensation Board of 

Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (citing McGuill v. Unemployment 

Compensation Board of Review, 523 A.2d 1194, 1196 (Pa. Cmwlth. 1987)).
9

Accordingly, the order of the Board is affirmed.5

_________________________________

DAN PELLEGRINI, Senior Judge

 

5 Claimant also contends that the Board erred when determining that she voluntarily quit 

her job without cause of a necessitous and compelling nature because the Supervisor’s testimony 

is incredible, and substantial evidence does not support the Board’s finding that Claimant quit 

her job because of the Supervisor’s tone of voice alone. The Board, in turn, contends that all 

other issues are waived pursuant to Pennsylvania Rule of Appellate Procedure 2116(a), which 

provides, in pertinent part:

(a) General rule. The statement of the questions involved must 

state concisely the issues to be resolved, expressed in the terms and 

circumstances of the case but without unnecessary detail. The

statement will be deemed to include every subsidiary question 

fairly comprised therein. No question will be considered unless 

it is stated in the statement of questions involved or is fairly 

suggested thereby. . . .

Pa. R.A.P. 2116(a) (emphasis added). We agree with the Board that Claimant waived all other 

issues because she failed to assert them in the Statement of Questions Involved in her brief and 

failed to provide anything more than bare-bone accusations of impropriety by the Board. As we 

have explained, Rule 2116(a) is mandatory, even where the party has not had the benefit of an 

attorney’s assistance and is acting pro se. See Dalesandro v. Unemployment Compensation 

Board of Review, 625 A.2d 1291, 1291 (Pa. Cmwlth. 1993) (“The fatal flaw in [Claimant’s] brief 

is that she has not supplied any statement of the questions involved on appeal.”); Daly v. 

Unemployment Compensation Board of Review, 631 A.2d 720, 721 (Pa. Cmwlth. 1993) (“This 

rule applies to all briefs, regardless of whether they are written by an attorney or by a party in his 

or her own behalf.”).

In any event, the Board did not err when it determined that Claimant voluntarily quit her 

job without cause of a necessitous and compelling nature. Claimant testified that she voluntarily 

quit because of the Supervisor’s tone of voice, and the Board accepted the Supervisor’s credible 

testimony that she did not instruct another manager to chaperone Claimant prior to her quitting. 

As such, substantial evidence supports the Board’s determination that Claimant voluntarily quit 

because of the Supervisor’s tone of voice alone and the Board’s denial of Claimant’s UC benefits 

pursuant to Section 402(b) of the Law, 43 P.S. § 802(b), because she failed to act with ordinary 

common sense in quitting and failed to make a reasonable effort to preserve the employment 

relationship. See PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 

58 (Pa. Cmwlth. 1996).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wendy Hixen, :

Petitioner :

:

v. : No. 529 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 1

st day of December, 2016, it is hereby ordered that 

the order of the Unemployment Compensation Board of Review dated March 1, 

2016, is affirmed.

_________________________________

DAN PELLEGRINI, Senior Judge