IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Tewell, :

:

Petitioner :

:

v. : No. 691 C.D. 2021

: Submitted: December 30, 2021

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION 

BY JUDGE WOJCIK FILED: July 8, 2022

Thomas Tewell (Claimant), pro se, petitions for review of the decision 

of the Unemployment Compensation Board of Review (Board) dated April 22, 2021, 

which affirmed the decision of the Board’s referee (Referee) denying unemployment 

compensation (UC) benefits to Claimant under Section 402(b) of the Unemployment 

Compensation Law (Law).1 After careful review, we affirm. 

The procedural history of this matter is as follows. The Office of UC 

Benefits determined that Claimant was ineligible for UC benefits because he 

voluntarily separated from employment without necessitous and compelling cause. 

Certified Record (C.R.) at 13-15.2 Claimant appealed the denial, alleging that 

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

§802(b). Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible 

for compensation for any week “[i]n which his unemployment is due to leaving work without cause 

of a necessitous and compelling nature. . . .”

2 We cite to the Certified Record using the printed page numbers. 
2

Pennsylvania Transformer Technology, Inc. (Employer) failed to provide viable 

personal protective equipment (PPE) per COVID-19 guidelines and created an 

unsafe working environment. Id. at 17-22. The Referee provided notice of a hearing 

scheduled for January 4, 2021, to consider whether Claimant voluntarily separated 

from employment without necessitous and compelling cause in violation of Section 

402(b) of the Law, or whether Claimant was discharged from employment for willful 

misconduct in violation of Section 402(e) of the Law.3Id. at 28-31. The Referee 

provided notice that the January 4, 2021 hearing was continued and rescheduled for 

January 25, 2021, and would be conducted by telephone. Id. at 28-38. Employer 

submitted various documents regarding its COVID-19 policies to be considered at 

the hearing. Id. at 40-75. A telephone hearing was held before the Referee on 

January 25, 2021, at which Claimant appeared and testified, and where Employer 

appeared and offered the testimony of four witnesses. Id. at 77-98. The Referee 

confirmed that Claimant received the documents submitted by Employer. Id. at 80-

81. The Referee reviewed that the parties had the right to have an attorney or nonlegal advisor present if they chose, present testimony and evidence, question 

witnesses, and request an in-person hearing. Both parties testified that they 

understood their rights. Id. at 81-82. 

The Referee explained that under Section 402(b) of the Law, Claimant 

had the burden to prove that his resignation was for necessitous and compelling 

reasons. C.R. at 82. The Referee then identified the documents in the file, which 

3 Section 402(e) of the Law states, in pertinent part, that an employee shall be ineligible for 

compensation for any week “[i]n which his unemployment is due to his discharge or temporary 

suspension from work for willful misconduct connected with his work. . . .” 43 P.S. §802(e). After 

determining that Claimant resigned voluntarily from employment, the appeal proceeded on Section 

402(b) of the Law only, which Claimant did not dispute. Claimant testified that “[i]t was a quit 

for a viable reason.” C.R. at 88.
3

were admitted into the record without objection. Id. at 82-85. The Referee explained 

how the hearing would proceed, with each party having the opportunity to question 

the other party’s witnesses. Id. at 86. Claimant testified that Employer failed to 

provide appropriate PPE, and that the lack of appropriate PPE caused him to be “sick 

all the time and it just got to be too much.” Id. at 88. Claimant testified that he had 

a “compromised respiratory system.” Id. at 89. When the Referee asked Claimant 

to provide more specific information about his respiratory issue, Claimant responded 

“[t]hat’s none of your concern. That’s between me and my doctor.” Id. The Referee 

responded that “if you’re raising it as a reason for why you quit, sir, it would be 

relevant for me to know. But, if you don’t want to tell me that’s fine. That’s up to 

you.” Id. Claimant testified that he did not inform Employer about the lack of PPE

or about his concerns, stating he “no longer had any talk[s] with the management.” 

Id. at 89-90. He further testified that on June 1, 2020, the day he was to return to 

work after vacation, he texted Employer’s Production Supervisor, Bob Cook 

(Supervisor), that “I probably wouldn’t be back. I was tired of being sick all the 

time, and it’s just—it’s not worth the stress.” Id. at 90. 

Employer presented testimony from Nick Smith, Employer’s Health 

and Safety Manager (Safety Manager), about its efforts to comply with COVID-19 

requirements. C.R. at 91-95. Safety Manager testified that as a critical infrastructure 

business permitted to remain open, Employer provided masks for employees, face 

shields for employees who had difficulty working with masks, hand sanitizer, 

enhanced cleaning, and social distancing. Id. at 91-92. The Referee asked Safety 

Manager if he was aware of PPE shortages leading up to Claimant’s separation from 

employment, as Claimant alleged, to which Safety Manager replied, “[n]o.” Id. at 

93. Claimant asked Safety Manager questions about the availability of disinfectant 
4

spray and cleaning practices, to which Safety Manager responded. Id. at 94-95. 

Claimant and the Referee asked Safety Manager about Employer’s efforts to enforce 

employee mask requirements. Safety Manager testified that during the first few 

months of the COVID-19 emergency, requirements were a “continuous moving 

target” and that Employer “adapted as we learned more information.” Id. at 95. 

Safety Manager testified that when employees failed to wear masks as required, 

Employer’s Human Resources Manager talked to employees, warned them to 

comply, and eventually issued disciplinary suspensions to employees who failed to 

comply. Id. at 65-69, 95. 

Employer then presented testimony from its Supervisor about the text 

message that Claimant sent on June 1, 2020, and Supervisor’s reply on the same 

date. C.R. at 96-97. Supervisor testified that Claimant was a good employee and 

that Supervisor never had any problems with Claimant’s work. Id. at 96. He testified 

that he received a text from Claimant early in the morning on June 1, 2020, and 

Claimant agreed that Supervisor could read the text messages at the hearing. Id. 

Supervisor testified as follows: 

[Claimant] said, “I think I’m about done, Bob. 

Throughout this whole ordeal, I have had three masks. I 

am tired of being sick. I’m tired of my nose running off 

my face. I am tired of asking for a clean mask. I am just 

tired.” And then I [(Supervisor)] answered him 

[(Claimant)], just to sum it up, that, you know, look me up 

when I get into the plant and we’ll talk about it then. 

Id. at 97. Supervisor then read his reply to Claimant which stated, “I’ll 

[(Supervisor)] look you [(Claimant)] up when I get in so you can tell me what’s 

going on. I’m not sure who you’ve been asking for a new mask, but there is always 

a box out for anyone who wants to use it.” Id. Employer asked Supervisor if 

Claimant’s text message was the first time that he knew that Claimant did not have 
5

a mask or was asking for a mask, to which he replied, “[t]o my recollection, yes.” 

Id. The Referee asked Claimant if he had any questions for Supervisor, and Claimant 

did not. Id. The Referee then asked if Claimant wished to add anything else, and 

Claimant replied, “[no], not at this time.” Id. Employer gave a closing statement, 

Claimant did not, and the Referee adjourned the hearing. Id. at 97-98. 

The Referee then issued a decision dated January 28, 2021, denying 

Claimant’s UC benefits. C.R. at 100-04. The Referee made the following findings. 

Claimant was last employed by Employer as a full-time electronic finisher from May 

29, 2019, to May 28, 2020, Claimant’s last day of work. Id. at 100. Claimant was 

off work for a scheduled vacation on May 29, 2020, and was scheduled to return to 

work on June 1, 2020. Id. “On the morning of June 1, 2020, [] Claimant sent a text 

message to his manager stating, ‘I think I’m about done.’” Id. Claimant’s text 

message continued and referenced a lack of masks being provided by Employer and 

that Claimant was ill. Id. at 101. Prior to resigning, Claimant had not notified 

Employer of any purported lack of PPE equipment or supplies related to COVID19. Id. As of Claimant’s last day of work, Employer had masks on hand for 

employees, placed hand sanitizer near the time clock, enforced social distancing and 

mask wearing for employees, had face shields available for employees who had 

difficulties wearing a mask, and had implemented a cleaning protocol at least once 

a day. Id. The Referee found that Claimant “voluntarily resigned his employment 

on June 1, 2020,” by way of text message, purportedly due to concerns with exposure 

to COVID-19 in the workplace, and the lack of PPE. Id. Claimant “did not raise 

any such concerns with [] Employer prior to submitting his resignation.” Id. 

The Referee concluded that Claimant failed to sustain his burden to 

prove he had necessitous and compelling cause for leaving his employment. C.R. 
6

at 101. The Referee acknowledged that unreasonable or dangerous work conditions 

that could jeopardize an employee’s health can constitute good cause for leaving 

employment, but the employee “must have communicated [his] concerns to the 

Employer prior to quitting.” Id. (emphasis omitted). The Referee found that, 

although Claimant contended he had a compromised respiratory system, 

[n]otwithstanding the vague nature of [] Claimant’s 

testimony regarding any health condition which may have 

caused [] Claimant to have elevated concerns regarding 

contracting the C[OVID]-19 virus, the Referee credits [] 

Employer’s testimony that [it] had provided, or made 

available, PPE to employees including masks, face 

shields, [and] hand sanitizer, and was enforcing social 

distancing and the wearing of masks, as well as having 

implemented a cleaning protocol to disinfect surfaces.

Id. The Referee further concluded that, “by Claimant’s own admissions[,]” Claimant 

“failed to notify [] Employer of any such concerns prior to resigning. As such, even 

finding [] Claimant’s concerns legitimate, [] Claimant failed to communicate these 

concerns to [] Employer prior to resigning in order to allow [it] a reasonable 

opportunity to respond.” Id. 

Claimant timely appealed the Referee’s denial to the Board alleging 

several errors in how the Referee conducted the hearing, in the Referee’s credibility 

determinations, and the denial of his rights under the Sixth and Seventh 

Amendments to the United States (U.S.) Constitution,

4 and claiming that requiring 

4 The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and 

district wherein the crime shall have been committed ... and to have the Assistance of Counsel for 

his defence.” U.S. Const. amend. VI. Claimant is not accused of any crime, and these UC 

proceedings are not a criminal prosecution. Therefore, the Sixth Amendment does not apply to 

this appeal. Further, we find that Claimant waived his Sixth Amendment claim, because he failed 

to present argument on it in his brief to this Court. See Pa. R.A.P. 2119(a) (“The argument shall 

(Footnote continued on next page...)
7

essential workers to work on Employer’s premises during COVID-19 “is not only 

discrimination, it is akin to slavery.”5 C.R. at 106-11. 

The Board took no additional evidence, considered the entire record, 

and issued a decision and order dated April 22, 2021, in which the Board concluded 

that the Referee’s denial was proper under Section 402(b) of the Law. C.R. at 113-

20. The Board found “no credible medical evidence in support of [] [C]laimant’s 

assertion that he suffers from a respiratory ailment.” Id. at 113. The Board further 

found 

credible [] [E]mployer’s testimony that [] [C]laimant 

never raised any health or safety concerns to [] [E]mployer 

prior to the final text message and that [] [C]laimant’s 

[S]upervisor responded by indicating that masks in the 

workplace were available for everyone and that he would 

talk with [] [C]laimant about his concerns when he 

reported for work. [] [C]laimant never responded. 

Id. The Board further concluded that Claimant’s due process and constitutional 

claims were without merit. Id. The Board concluded that “Claimant was given 

be divided into as many parts as there are questions to be argued; and shall have at the head of 

each part . . . the particular point treated therein, followed by such discussion and citation of 

authorities as are deemed pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998), 

cert. denied, 526 U.S. 1070 (1999) (holding that the failure to develop issue in appellate brief 

results in waiver); Browne v. Department of Transportation, 843 A.2d 429, 435 (Pa. Cmwlth. 

2004) (“At the appellate level, a party’s failure to include analysis and relevant authority results in 

waiver.”). 

The Seventh Amendment provides: “In suits at common law, where the value in 

controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact 

tried by a jury, shall be otherwise re-examined in any Court of the United States, than according 

to the rules of the common law.” U.S. Const. amend. VII. 

5 The Thirteenth Amendment provides, in relevant part: “Neither slavery nor involuntary 

servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall 

exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII. 
8

sufficient opportunity to present his case and he was in no way impeded by the 

Referee in doing so.” Id. The Board concluded that the Sixth and Seventh 

Amendments were not applicable to civil, administrative proceedings, and that the 

Law does not provide for jury trials. Id. The Board further concluded that Claimant 

never raised these constitutional issues before the Referee, and “therefore, [they] are 

waived.” Id. The Board adopted and incorporated the Referee’s findings and 

conclusions, and affirmed the Referee’s decision denying Claimant’s eligibility for 

UC benefits. Id. 

Claimant then petitioned for review to this Court.6 Claimant first filed 

a letter appeal to this Court, which the Court accepted to preserve Claimant’s appeal 

date.7 The Court directed Claimant to file a petition for review, which he did, in

which Claimant presented multiple grounds for error.8 Claimant argues that the 

Board erred in concluding that he failed to prove that he had necessitous and 

compelling cause to resign, based on the Referee’s crediting of Safety Manager’s 

testimony regarding PPE that was available to Claimant at the time Claimant 

resigned, and because the Referee did not credit Claimant’s testimony about his 

underlying health issues. In his brief to this Court, Claimant expands upon the 

difficulties that he faced while working for Employer during the COVID-19 

emergency, but he provides no legal authority to question the Referee’s or Board’s 

credibility determinations, other than his disagreement with those determinations. 

6 This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law occurred, or whether necessary findings of fact were 

supported by substantial evidence. Hessou v. Unemployment Compensation Board of Review, 942

A.2d 194, 197 n.3 (Pa. Cmwlth. 2008). 

7

See Pro Se Letter on How to Appeal dated May 27, 2021. 

8 We have reordered Claimant’s questions for ease of discussion. 
9

The Board responds that it resolved conflicting evidence in Employer’s favor, and 

that substantial evidence supports its findings. After careful review of the record, 

we discern no error in the Board’s findings, based on its credibility determinations.

It is well settled that 

the Board is the ultimate fact-finder in [UC] matters and is 

empowered to resolve all conflicts in evidence, witness 

credibility, and weight accorded the evidence. 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 

findings actually made. Where substantial evidence 

supports the Board[’]s findings, they are conclusive on 

appeal. . . . [T]he prevailing party below [] is entitled to 

the benefit of all reasonable inferences drawn from the 

evidence. 

Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 

A.2d 338, 342 (Pa. Cmwlth. 2008) (internal citations omitted). 

Further, we consider Claimant’s general argument that the Board erred 

in denying UC benefits when Claimant believes he provided necessary and 

compelling reasons for his resignation based on unsafe working conditions or by 

establishing that his health condition was a compelling reason.9 The Board responds 

that its decision was proper where Claimant failed to satisfy his burden of proving 

that he resigned for necessary and compelling reasons. 

Whether a claimant had a necessitous and compelling reason to resign 

is a question of law subject to our plenary review. Department of Corrections, State 

Correctional Institution at Graterford v. Unemployment Compensation Board of 

Review, 547 A.2d 470, 473 (Pa. Cmwlth. 1988). We note that a claimant has the 

9 Although Claimant failed to specifically address this issue in his brief, we are inclined to 

construe pro se materials liberally, so long as we can conduct meaningful appellate review. See

Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999). 
10

burden of establishing that necessitous and compelling reasons existed for quitting 

his employment. Green Tree School v. Unemployment Compensation Board of 

Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009). A claimant must establish that he 

acted with ordinary common sense in quitting his job, that he made a reasonable 

effort to preserve his employment, and that he had no other real choice than to leave 

his employment. Id. In this context, “[a]n unsafe working environment can give an 

employee a necessitous and compelling reason to resign.” Id. To sustain this burden, 

a claimant must demonstrate “by objective evidence” that his working conditions 

were unsafe and placed him at risk. Id. at 578. “[S]afety ‘fears’ alone do not 

constitute a compelling reason to resign.” Id. 

We further note that for a claimant to establish that his health condition 

constituted a compelling reason to resign, he must demonstrate through competent 

and credible evidence that “(1) health reasons of sufficient dimension compelled the 

employee to quit; (2) the employee informed the employer of the health problems; 

and (3) the employee is able and available for work if the employer can make a 

reasonable accommodation.” Watkins v. Unemployment Compensation Board of 

Review, 65 A.3d 999, 1004-05 (Pa. Cmwlth. 2013). Although this standard “does 

not require medical testimony, there may be cases where a claimant’s testimony and 

supporting documents are inadequate.” Id. at 1005. Further, a claimant’s failure “to 

meet any one of these conditions will bar a claim for [UC] benefits.” Van Duser v. 

Unemployment Compensation Board of Review, 642 A.2d 544, 550 (Pa. Cmwlth. 

1994). 

As this Court has recently explained: 

Whether the reason for [the c]laimant’s concerns were 

adequate safety measures by [the e]mployer or fears 

related to her and/or her father’s health, or both, [the 
11

c]laimant’s burden to make a reasonable effort to preserve 

her employment required her to give notice to [the 

e]mployer as to her concerns and health conditions and 

allow [the e]mployer the opportunity to modify her work 

conditions. This is the case even where there is a real and 

serious safety concern, see Iaconelli v. Unemployment 

Compensation Board of Review, 423 A.2d 754, 756 (Pa.

Cmwlth. 1980), or where a claimant has a medical 

condition which endangers her, see St. Clair Hospital v. 

Unemployment Compensation Board of Review, 154 A.3d 

401 (Pa. Cmwlth. 2017). Once communicated, an 

employer must have a reasonable opportunity to make 

accommodations with respect to the work conditions 

and/or medical condition. See Blackwell v. Unemployment 

Comp[ensation Board] of Rev[iew], 555 A.2d 279, 281-82 

& n.6 (Pa. Cmwlth. 1989). 

Lundberg v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 29 

C.D. 2021, filed October 14, 2021), slip op. at 3.10 See also Hastings v. 

Unemployment Compensation Board of Review (Pa. Cmwlth., No. 104 C.D. 2021, 

filed April 13, 2022). 

We discern no error in the Board’s determination that Claimant failed 

to prove that his work environment was unsafe due to Employer’s failure to provide 

appropriate PPE, or that Claimant’s health condition constituted necessitous and

compelling cause to resign. The Board is the ultimate finder of fact, and we cannot 

review its credibility determinations on appeal. Ductmate Industries, Inc., 949 A.2d 

at 342. Further, substantial evidence in the record supports the Board’s 

determination that Claimant failed to establish that his health condition constituted 

a compelling reason for him to resign. Although Claimant testified at the hearing 

that he had a “compromised respiratory system,” he declined to provide any specifics 

10 See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an 

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] 

Non-precedential decisions . . . may be cited for their persuasive value.”). 
12

about his health condition, and he offered no medical evidence to demonstrate that 

he had respiratory issues. C.R. at 89. Claimant admitted and Employer confirmed 

that Claimant did not inform Employer about the lack of PPE or his health condition 

before he resigned. Id. at 89, 93, 97. Further, after he submitted his resignation by 

text message, Claimant failed to respond to Employer’s offer to discuss the 

availability of PPE or to otherwise assist Claimant. Id. at 97. Because Claimant 

failed to satisfy any of the conditions to demonstrate that his health condition 

constituted a compelling reason to resign, the Board did not err in denying UC 

benefits. Watkins, 65 A.3d at 1004-05; Van Duser, 642 A.2d at 550.11 

Claimant next argues that he was denied due process because the 

Referee rescheduled the January 4, 2021 hearing without reason or notice, and 

because the Referee rushed the hearing and failed to give Claimant time to think and 

ask questions.12 The Board denies that Claimant’s due process rights were violated. 

Beyond simply posing these questions, Claimant failed to develop or argue these 

issues in his brief. Therefore, we find that Claimant waived these issues. See Pa. 

R.A.P. 2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435. Even if not 

waived, we find no conduct by the Referee that denied Claimant his due process 

rights. As to the continuance, Claimant did not argue that he was prejudiced by the 

11 See also Lundberg, slip op. at 4 (“While one can sympathize with [the c]laimant’s fears 

in the face of the chaos attendant to the early stages of the COVID-19 pandemic, the [L]aw does 

not excuse her of the duty to inform [the e]mployer of her safety concerns and health problems 

and afford [the e]mployer the opportunity to mitigate and/or accommodate them.”).

12 In his brief to this Court, Claimant also asks why he does not have a transcript of the 

January 25, 2021 hearing before the Referee. Beyond simply posing this question, Claimant failed 

to argue this issue in his brief. Therefore, we find that Claimant waived this issue. See Pa. R.A.P. 

2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435. Further, our review of the record 

reveals no evidence that Claimant asked the Referee for a transcript of the hearing. Section 502(a) 

of the Law provides that a transcript and audio recording of the hearing shall be made available 

upon “written request to the referee.” 43 P.S. §822(a) (emphasis added).
13

Referee’s rescheduling of the hearing. Claimant received notice of the continuance 

and participated in the January 25, 2021 hearing before the Referee. C.R. at 28-31, 

33-38, 77-98. It is well settled that “we may override the judgment of the referee as 

to whether or not to grant a continuance only if there has been ‘a clear showing of 

an abuse of discretion.’” Steadwell v. Unemployment Compensation Board of 

Review, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983) (citations omitted). Even if 

Claimant had not waived this issue, we find no clear showing that the Referee abused 

his discretion by rescheduling the hearing. 

Similarly, even if this claim is not deemed to have been waived, we find 

no conduct by the Referee that denied Claimant the opportunity to be heard at the 

January 25, 2021 hearing. This Court has held that a claimant’s due process rights 

are not violated when a referee has advised a claimant of his rights, asked a claimant 

if he had objections throughout the hearing, and asked a claimant if he had anything 

to add before the hearing ended. Kreibel v. Unemployment Compensation Board of 

Review, 453 A.2d 737, 738 (Pa. Cmwlth. 1982).

Here, the Referee confirmed that Claimant received the documents 

submitted by Employer. C.R. at 80-81. The Referee explained to Claimant that he 

had the right to have an attorney or non-legal advisor present if he chose, present 

testimony and evidence, question witnesses, and request an in-person hearing, which 

Claimant stated he understood. Id. at 81-82. The Referee explained Claimant’s 

burden of proof. Id. at 82. The Referee assisted Claimant in presenting his own 

testimony. Id. at 88-90. After each of Employer’s witnesses testified, the Referee 

gave Claimant the chance to ask questions if he chose. Id. at 93-95, 97. The Referee 

explained how the hearing would proceed, with each party having the opportunity 

to question the other party’s witnesses. Id. at 86. Further, we find no error in the 
14

Referee’s conduct at the hearing, when the Referee followed the Board’s regulations, 

which require a referee to assist a pro se claimant by advising him of his rights, 

aiding him in examining and cross-examining witnesses, and giving him “every 

assistance compatible with the impartial discharge of [his] official duties.” 

34 Pa. Code §101.21(a). Although the Referee reminded parties to eliminate 

repetitive testimony so that the hearing could be completed without scheduling a 

second hearing, we discern no violation of Claimant’s due process rights, when the 

Referee exercised his discretion so that all parties had the chance to present 

testimony necessary to establish their rights. 34 Pa. Code §101.21(b). 

As to the remaining constitutional issues, Claimant argues that 

requiring him to work in-person during COVID-19 violated his rights under the 

Thirteenth Amendment, and that the Referee and Board violated his right to a jury 

trial under the Seventh Amendment. The Board responds that because Claimant 

failed to preserve or argue these constitutional issues, they are waived. Claimant 

failed to raise his claims under the Seventh and Thirteenth Amendments in his appeal 

to the Referee or before the Referee. C.R. at 17-22, 77-98. Because Claimant failed 

to raise these issues “at the earliest possible opportunity” before the Referee, 

Claimant waived them. Dehus v. Unemployment Compensation Board of Review, 

545 A.2d 434, 436 (Pa. Cmwlth. 1988). Further, beyond simply raising these

questions or repeating them in his brief to this Court, Claimant failed to develop or 

argue these issues in his brief. Therefore, we find that Claimant waived these issues. 

See Pa. R.A.P. 2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435. 

Even if these claims are not deemed to have been waived, we find no 

merit in Claimant’s constitutional arguments. The Board did not find, and Claimant 

provides no authority, that being required to perform essential work in-person during 
15

COVID-19 put Claimant in a position akin to slavery in violation of the Thirteenth 

Amendment. Further, the Board correctly concluded that parties to a UC 

administrative proceeding do not have the right to a jury trial under the Seventh 

Amendment. “It is well[-]settled that, unlike the Sixth Amendment to the [U.S.] 

Constitution’s rights to a jury trial in criminal cases, the Seventh Amendment jury 

trial guarantee in civil cases has not been applied to the states by incorporation into 

the Fourteenth Amendment.”

13 Bensinger v. University of Pittsburgh Medical 

Center, 98 A.3d 672, 676 n.6 (Pa. Super. 2014).14 Section 502(a) of the Law 

provides that a referee shall hold hearings and make determinations regarding UC 

benefit appeals, 43 P.S. §822(a), and Claimant participated in that hearing, which is 

his right under the Law.

Accordingly, the Board’s decision is affirmed. 

MICHAEL H. WOJCIK, Judge

13 The Fourteenth Amendment provides, in relevant part: “[N]or shall any State deprive 

any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV §1. 

14 “In general, Superior Court decisions are not binding on this Court, but they offer 

persuasive precedent where they address analogous issues.” Lerch v. Unemployment 

Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Tewell, :

:

Petitioner :

:

v. : No. 691 C.D. 2021

: 

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 8

th day of July, 2022, the decision of the 

Unemployment Compensation Board of Review dated April 22, 2021, is 

AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge