IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard G. Mroz, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1028 C.D. 2020

Respondent : Submitted: March 8, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge 

HONORABLE STACY WALLACE, Judge

OPINION BY 

JUDGE COVEY FILED: April 19, 2024

Richard G. Mroz (Claimant) petitions this Court pro se for review of 

the Unemployment Compensation (UC) Board of Review’s (UCBR) September 2, 

2020 order affirming the Referee’s decision that denied Claimant UC benefits under 

Section 402(b) of the UC Law (Law).1 Claimant presents one issue for this Court’s 

review: whether the UCBR erred by affirming the Referee’s conclusion that 

Claimant failed to satisfy his burden of proving a necessitous and compelling reason 

for failing to return to his job as a delivery driver. After review, this Court affirms.

Smart Lab, Incorporated (Employer), a dental laboratory, employed 

Claimant as a delivery driver. Claimant’s duties included traveling to dental offices 

and interacting with their receptionists. Claimant resides with his wife, who has 

chronic pulmonary issues, hypertension, asthma, and a clotting disorder, and is 

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

802(b) (relating to leaving work without cause of a necessitous and compelling nature).
2

obese. From the onset of the COVID-19 pandemic, Claimant was concerned about 

performing his job duties, given his wife’s health challenges. Claimant had multiple 

discussions with Employer regarding the matter. Employer agreed to give Claimant 

time off from work, beginning March 14, 2020, due to his concerns. Thereafter, 

Employer provided Claimant the ability to continue working during the COVID-19 

pandemic. Subsequent to Claimant’s last day worked, Employer made multiple 

efforts to return him to his position, which Claimant declined. 

On March 22, 2020, Claimant applied for UC benefits. On May 26, 

2020, the Altoona UC Service Center determined that Claimant was eligible for UC 

benefits under Section 401(d)(1) of the Law.2 Employer appealed from the UC 

Service Center’s determination. On July 10, 2020, the Referee held a hearing. On 

July 14, 2020, the Referee reversed the UC Service Center’s determination and 

found Claimant ineligible for UC benefits under Section 402(b) of the Law. 

Claimant appealed to the UCBR. On September 2, 2020, the UCBR affirmed the 

Referee’s decision. Claimant appealed to this Court.3 

Initially, Section 402(b) of the Law provides, in relevant part, that an 

employee shall be ineligible for UC benefits for any week “[i]n which his 

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

compelling nature[.]” 43 P.S. § 802(b). This Court has explained:

The claimant has the burden of proving that []he had a 

necessitous and compelling cause for voluntarily 

terminating h[is] employment. PECO Energy Co. v. 

Unemployment Comp. Bd. of Rev[.], 682 A.2d 58, 60 (Pa. 

2

43 P.S. § 801(d)(1) (relating to an employee’s ability to work and availability for suitable 

work).

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

whether an error of law was committed, whether the agency’s practices or procedures were 

violated, or whether the findings of fact were supported by substantial evidence. Section 704 of 

the Administrative Agency Law, 2 Pa.C.S. § 704.
3

Cmwlth. 1996). A necessitous and compelling cause is 

that which “results from circumstances which produce 

pressure to terminate employment that is both real and 

substantial, and which would compel a reasonable person 

under the circumstances to act in the same manner.” 

Taylor v. Unemployment Comp. Bd. of Rev[.], . . . 378 A.2d 

829, 832-33 ([Pa.] 1977). To meet this burden, the 

claimant must generally demonstrate that []he took

“all necessary and reasonable steps to preserve the 

employment relationship.” PECO Energy Co., 682 A.2d 

at 61.

St. Clair Hosp. v. Unemployment Comp. Bd. of Rev., 154 A.3d 401, 404-05 (Pa. 

Cmwlth. 2017) (en banc) (emphasis added).

Claimant argues that he satisfied his burden of proving a compelling 

and necessitous reason to quit his job because he discussed his concerns with 

Employer many times and Employer stated that it could not ameliorate those 

concerns. Claimant cites Concordia of South Hills v. Unemployment Compensation 

Board of Review (Pa. Cmwlth. No. 602 C.D. 2022, filed August 17, 2023)

(Concordia), and Lundberg v. Unemployment Compensation Board of Review (Pa. 

Cmwlth. No. 29 C.D. 2021, filed October 14, 2021), to support his position.4 

Employer rejoins that Claimant’s perceived risk to his health and his wife’s health 

does not give rise to a necessitous and compelling reason not to return to work.

In Concordia, this Court illuminated:

[I]n a COVID[-19 pandemic]-related case where an 

employee has a concern about the utilization of inadequate 

safety measures, or fears related to [his] health, or both, 

the burden to make a reasonable effort to preserve 

employment requires an employee to give notice to the 

employer as to [his] concerns and health conditions and 

to allow the employer an opportunity to modify the 

4 This Court’s memorandum opinions issued after January 15, 2008, may only be cited “for 

[their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). 
4

employee’s work conditions. See Lundberg . . . [,] slip op. 

at 3.[5]“This is the case even where there is a real and 

serious safety concern, or where a[n employee] has a 

medical condition which endangers h[im].” Id. (first 

citing Iaconelli v. Unemployment Comp. Bd. of Rev., 423 

A.2d 754, 756 (Pa. Cmwlth. 1980), then citing St. Clair 

Hosp. . . . “Once [a concern is] communicated, an 

employer must have a reasonable opportunity to make 

accommodations with respect to the work conditions 

and/or medical condition.” Id. (citing Blackwell v. 

Unemployment Comp. Bd. of Rev., 555 A.2d 279, 281-82 

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

Concordia, slip op. at 5-6 (bold and italic emphasis added). The Concordia Court 

held that the claimant met her burden of proving that she left work for cause of a 

necessitous and compelling nature because she had communicated her specific 

issues and concerns to her employer, i.e., she told her supervisor that she was 

concerned that others were not following the COVID-19 pandemic protocols and 

requested a transfer to the kitchen, but the employer failed to accommodate her 

concerns or instruct her on how to otherwise properly request a transfer.

Here, Claimant testified:

I had met with the two gentlemen, [Employer’s managers

Jon Gaich (Gaich)] and Dale,[6] on my last day of work on 

[March 13, 2020,] and voiced concerns about, boy, if this 

blows up and things get really bad[,] I’m going to have 

to, you know, look at things because my number one

concern is my safety, health for me and my wife. 

5

In Lundberg, this Court held, as it related it to the COVID-19 pandemic:

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 h[im] of the duty to inform [the e]mployer 

of h[is] safety concerns and health problems and afford [the 

e]mployer the opportunity to mitigate and/or accommodate 

them.

Id., slip op. at 4 (emphasis added).

6 Dale’s last name does not appear in the Certified Record.
5

Certified Record (C.R.) at 104 (emphasis added). Claimant further related, on May 

7, 2020: 

[Gaich] had contacted me and wanted to know if I was 

willing to come back yet. And I guess he was saying they 

started, starting [sic] to see the need for drivers. And I told 

him, you know, I appreciated him contacting me and I 

wanted to have a -- because he initially contacted me by 

text. During the conversation, I kind of reiterated what 

had been discussed on that Friday while I talked to him 

and Dale both before and after my shift on [March 13, 

2020,] that I’m not comfortable coming back, you know, 

right now because of concern for safety and health for 

myself and my wife who is at a very high risk and 

vulnerable because of various medical conditions.

C.R. at 104 (emphasis added).

Claimant described:

C[laimant’s] L[awyer:] Did you get a text message on 

May 22[, 2020,] asking you if you could return to work 

again?

C[laimant:] I did.

C[laimant’s] L[awyer:] And did you respond?

C[laimant:] I did. And I, excuse me, trying to look 

through my documents here. Yeah, I said this, like I said 

in the text, speaks for itself. I think he really had not 

changed since I spoke with [Gaich] on May 7[, 2020,] that 

I would assess the situation about returning to work 

when we get into the green phase as described by the 

Governor.

C[laimant’s] L[awyer:] Now, June [3, 2020,] did [Gaich] 

text you and offer you a job to return to work as a driver 

on [] June [] 5th, 2020?

C[laimant:] He did say that since the county is going back 

to green phase on Friday that there . . . would probably be 

a need for me to return. And I said it’s about time that 

my wife and I discussed it[,] and we still believe it’s best 

to proceed with caution because of the very high risk 
6

that we both have because of our age and her medical 

conditions. And we wanted to see if there was an 

increased number of cases, resurgence, more or less, 

because of people gathering more because of good 

weather and all the things like that. So just still very 

weary and concerned for safety and health for myself 

and my wife. 

C.R. at 105 (emphasis added).

Gaich testified that Employer “already had strict disinfection protocols 

in place because [it] handle[s] work coming from patients’ mouth[s].” C.R. at 107; 

see also C.R. at 133; UCBR Finding of Fact (FOF) 12 (“[E]mployer is a dental lab 

and, as such, has strict disinfection protocols.”). Gaich further related: 

[Employer] also ramped up additional things according to 

the Worker and Building Safety Order set forth by the 

[s]tate. Mask requirements, [Employer] suppl[ies]

everybody with gloves, hand sanitizer, all that. A followup email [sic], [Employer] made the use of face masks 

mandatory. And for those who wouldn’t comply, I do 

believe [Employer] had said in there [Employer] will send 

you home immediately for not complying. I think that was 

before the [s]tate even said that businesses need to do that. 

So [Employer] kind of wanted to jump on that and be as 

proactive as [it] can [sic]. For not only just the drivers, but 

all employees here, [Employer] suppl[ies] [Personal 

Protective Equipment] as long as we can get it. Face 

masks, gloves [Employer] suppl[ies]. [Employer] do[es]

supply disinfecting wipes and spray for everybody 

including the drivers are instructed to wipe down their 

vehicles before they start the day and when they finish the 

day. And [Employer] also ha[s] hand sanitizer here for

everybody to use that wants to use that. 

C.R. at 108; see also C.R. at 107; UCBR FOF 12 (“[E]mployer instituted specific 

measures to address COVID-19, such as providing its employees with masks, 

gloves, hand sanitizer, and disinfecting wipes, and instructing its drivers to disinfect 

the vehicle before and after work.”).
7

Although Claimant expressed his concern to Employer, he merely 

raised a general fear for his and his wife’s safety. Claimant chose to leave his job 

even though Employer had safety measures in place and without specifically 

communicating how Employer’s safety measures did not address his situation and,

thus, did not allow Employer to offer any mitigation and/or accommodation.

While one can sympathize with Claimant’s fears in the 

face of the chaos attendant to the early stages of the 

COVID-19 pandemic, the law does not excuse h[im] of the 

duty to inform Employer of h[is] safety concerns and 

health problems and afford Employer the opportunity 

to mitigate and/or accommodate them.

Lundberg, slip op. at 4 (emphasis added). Accordingly, this Court is constrained to 

affirm the UCBR’s order.

For all of the above reasons, the UCBR’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard G. Mroz, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1028 C.D. 2020

Respondent : 

O R D E R

AND NOW, this 19th day of April, 2024, the Unemployment 

Compensation Board of Review’s September 2, 2020 order is affirmed.

_________________________________

ANNE E. COVEY, Judge