IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Access Ability, Inc., :

Petitioner :

: No. 2136 C.D. 2014

v. :

: Submitted: July 17, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: August 18, 2015

Access Ability, Inc. (Employer) petitions for review of the October 28, 

2014 order of the Unemployment Compensation Board of Review (Board), which 

affirmed a referee’s determination that Linda S. Heberling (Claimant) had a 

necessitous and compelling reason to terminate her employment and, therefore, was 

not ineligible for benefits pursuant to section 402(b) of the Unemployment 

Compensation Law (Law).1 We affirm.

Claimant worked as a full-time administrative assistant for Employer 

from September 14, 2009, through April 10, 2014. Claimant voluntarily resigned 

 

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 that 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. . . .” Id.
2

from her employment on April 10, 2014, after Ham Malek, Employer’s president, 

threatened her with a suspension and a lawsuit. (Findings of Fact Nos. 1, 7.) The 

local service center granted Claimant’s application for benefits, and Employer 

appealed. The referee convened a hearing at which Claimant, Malek, and Pam 

Beattie, Employer’s operations manager, testified.

Claimant testified that she was not discharged but voluntarily left her 

employment on April 10, 2014. (Notes of Testimony (N.T.) at 5.) Claimant said that 

she quit because Malek created “a continuous hostile environment;” made “threats of 

suspension and firing on a repeated basis;” and subjected her and other staff members 

to “emotional abuse . . . for a very long time.” (N.T. at 5.) Claimant stated that she 

first informed Beattie, her immediate supervisor, of Malek’s activities, and later told 

Malek “that what he was doing was abuse,” (N.T at 12); nevertheless, she said, Malek 

continued his objectionable conduct, and there were no other high-ranking officials to

whom Claimant could have voiced her complaints. (N.T. at 13.) 

Claimant explained that approximately four months after she was hired, 

Malek began to engage in discussions with her regarding her work performance. 

According to Claimant, Malek’s comments consisted of “innuendos and false 

accusations,” and when Claimant would try to explain or defend her actions, Malek 

would call her “names,” most oftentimes a “debater.” (N.T. at 5.) Claimant testified 

that Malek would tell her not to respond to his criticisms and would not give her the 

opportunity to explain or defend her conduct. In addition, Claimant stated that she 

and other co-workers were repeatedly suspended and threatened with being 

discharged. (N.T. at 6.) Claimant elaborated on one instance when Malek 

suspended her; she arrived at work the next day, told him that the suspension was 
3

unwarranted, and Malek admitted that he had been upset with a technician the day 

before. (N.T. at 12.) 

Claimant further testified that there was “a lot of derogatory language 

that was addressed to [her] and to others.” (N.T. at 6.) Claimant stated that near the 

end of her employment, Malek started telling her that she was “lying,” “cheating,” 

and had “too big an ego.” (N.T. at 6.) Claimant stated that although not directed at 

her, Malek used “foul language” at the office, (N.T. at 6), and introduced into 

evidence an email sent to her and Beattie, wherein Malek ridiculed Beattie and asked 

her to make some kind of response, even if it was just “a courtesy reply to say F U.” 

(Supplemental R.R. at 6b.) Claimant testified that while there were constant threats 

of suspension and “[a]buse was always present in the office,” it escalated six months 

before she left. (N.T. at 12.) Claimant testified that she told Malek that if he 

suspended her again, she would quit and not come back. (N.T. at 11.) 

Claimant said that on April 10, 2014, she received a phone call from 

Employer’s salesman, who is a contractor and not part of Employer’s immediate 

staff. Claimant stated that she and the salesman engaged in a private conversation, 

which she characterized as “niceties between him and me,” and then transferred the 

call to Beattie. (N.T. at 11.) Claimant testified that when the call ended, Malek 

called her back to the office and asked her what the salesman said; in response, 

Claimant stated that the salesman said he wanted to talk to Beattie. Claimant testified 

that Malek then wanted to know what else the salesman said, and Claimant told 

Malek that she would not disclose the private conversation between them. According 

to Claimant, Malek immediately became upset, told her that he would suspend her, 

informed her that he could fire her, and said that he could commence a lawsuit 
4

against her. Claimant stated that at this point, she told Malek that she quit, walked 

out of the office, and handed in her resignation the next day. (N.T. at 10-12, 14.)2

Beattie testified that she was present at the April 10, 2014 meeting. 

According to Beattie, Malek told Claimant that he has a right to know what is being 

said in the office; Claimant refused to disclose the requested information; and Malek 

never specifically said that Claimant was suspended. On cross-examination, Beattie 

agreed that Employer’s policies do not “spell out” the infractions that Employer cited 

Claimant for, nor do they list when or under what circumstances an employee could 

be suspended. Beattie also stated that she has heard Malek swear in the workplace,

and that during a meeting he accused members of the staff as being “liars” and 

“cheaters.” (N.T. at 20-21, 23-25.) 

Malek testified that he is Employer’s president and that at the April 10, 

2014 meeting, he asked Claimant if the salesperson needed business forms and 

inquired as to whether the salesperson had been disrespectful to Claimant. Malek 

stated that Claimant would not answer his questions; he then told Claimant that, as 

the employer, he has the right to know the content of business conversations between 

two co-workers; and he warned Claimant that her failure to disclose the conversation 

would result in disciplinary action. Malek said that Claimant left during their

discussion and that he never told Claimant that she was actually suspended or 

terminated. (N.T. at 26, 29-31.)

 

2 On cross-examination, Claimant stated that she had made mistakes at work; admitted that 

she received suspension letters from Employer; and acknowledged that in a letter dated June 25, 

2012, Employer said that she would be fired if she continued to do certain activities and/or commit 

specified errors. (N.T. at 14-17.) 
5

Malek testified that he did not call Claimant “names” and did not use 

vulgar or profane language in her presence. He said that he described a co-worker as 

a liar and cheater at a meeting that Claimant attended because the co-worker took the 

company car after work hours, got into a wreck, and falsified his work records. 

Malek also stated that Claimant got suspended twice, once when she sent an invoice 

to the wrong contractor and payment was delayed, and on another occasion when she 

failed to place stamps on outgoing mail. According to Malek, the suspensions were 

for a half day or a few days, without pay, adding that it is an employer’s right to 

remedy an infraction. When asked why he continued to employ Claimant despite 

those previous incidents, Malek testified that she was referred to him by a fellow comember of the church and he was aware that she was going through a difficult time 

following a divorce. Malek stated that early on he learned that Claimant could not 

perform the job tasks that she said she could do at the interview, and he 

accommodated Claimant by reducing her job responsibilities in order for her to 

maintain her employment. (N.T. at 31-36.)

At the conclusion of the hearing, the referee found that Malek’s 

testimony was evasive and inconsistent with documentary evidence, accepted 

Claimant’s testimony as being more credible than that of Employer’s witnesses, and 

rejected the testimony of Employer’s witnesses where it is inconsistent with 

Claimant’s testimony and evidence. (Referee’s decision at 2.) 

Relying on Claimant’s credible testimony, the referee found that Malek 

used abusive language toward employees and frequently threatened to suspend 

employees without pay; Claimant informed Beattie and Malek about the conditions 

that she believed made her work environment hostile; and she voluntarily left her 

employment after Malek threatened her with a suspension and a lawsuit. Based upon 
6

these facts, the referee concluded that Claimant had a necessitous and compelling 

reason to voluntarily leave her employment and was eligible for benefits. (Findings 

of Fact Nos. 1-7; Referee’s decision at 2.) 

Employer appealed to the Board. By decision dated October 28, 2014, 

the Board affirmed the referee’s decision, adopting and incorporating the referee’s 

findings and conclusions. 

On appeal to this Court,3Employer argues that the Board’s finding that 

Malek engaged in abusive conduct is not supported by substantial evidence. 

Employer alternatively contends that the Board’s factual findings are inadequate to 

support its legal conclusion that Claimant voluntarily left her employment for a 

necessitous and compelling reason. 

Initially, we note that in unemployment compensation proceedings, the 

Board is the ultimate fact-finder, empowered to determine the credibility of the 

witnesses and to resolve conflicts in the evidence. Curran v. Unemployment 

Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The 

Board’s findings are binding and conclusive on appeal if the record, when examined 

as a whole, contains substantial evidence to support those findings. Mathis v. 

Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 

2013). In determining whether substantial evidence exists, we view the record in the 

light most favorable to the party that prevailed before the Board and give that party 

the benefit of all reasonable inferences that can be drawn from the evidence. Big 

Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492, 

 

3 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether errors of law were committed, or whether findings of fact are supported by 

substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 

n.3 (Pa. Cmwlth. 1997). 
7

494-95 (Pa. Cmwlth. 2012). Substantial evidence is defined as such relevant 

evidence as a reasonable mind would accept as adequate to support a conclusion.

Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. 

Cmwlth. 1999). 

Pursuant to section 402(b) of the Law, an employee is ineligible for 

benefits if she voluntarily terminates her employment without cause of a necessitous 

and compelling nature. 43 P.S. §802(b). Thus, a claimant seeking benefits after 

voluntarily quitting her job has the burden to demonstrate real and substantial 

pressure to terminate employment that would compel a reasonable person under 

similar circumstances to act in the same manner. Dopson v. Unemployment 

Compensation Board of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009). The 

claimant must further demonstrate that she acted with ordinary common sense and 

made a reasonable effort to preserve her employment. First Federal Savings Bank v. 

Unemployment Compensation Board of Review, 957 A.2d 811, 816 (Pa. Cmwlth. 

2008). More specifically, the claimant “must take common sense action to obviate 

the problem so that . . . she does not have to terminate employment, and this is 

accomplished by informing one’s superiors of the harassing, humiliating or abusive 

conduct.” Porco v. Unemployment Compensation Board of Review, 828 A.2d 426, 

428 (Pa. Cmwlth. 2003).4 Whether an employee has a necessitous and compelling 

reason to voluntarily quit employment is a question of law fully reviewable by this 

Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282, 

1284 (Pa. Cmwlth. 1981).

 

4 Here, Employer does not contend that Claimant failed to make a reasonable effort to 

preserve her employment or that she did not act with common sense in informing Beattie and Malek 

about the work-place conduct that she found to be objectionable. 
8

This Court has held that mere resentment of a reprimand, disappointment 

with wages, and personality conflicts do not constitute a necessitous and compelling 

cause to voluntarily quit. Lynn v. Unemployment Compensation Board of Review, 

427 A.2d 736, 737 (Pa. Cmwlth. 1981); accord Ann Kearney Astolfi, DMD, P.C. v. 

Unemployment Compensation Board of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 

2010) (“Astolfi”). However, it is well established that “a claimant need not 

indefinitely subject herself to unjust accusations and abusive conduct.” Berardi v. 

Unemployment Compensation Board of Review, 458 A.2d 668, 670 (Pa. Cmwlth. 

1983). Accordingly, this Court has also held that a claimant may demonstrate a 

necessitous and compelling cause to quit when the claimant is continuously subject to 

unjust accusations or abusive conduct, Whisner v. Unemployment Compensation 

Board of Review, 446 A.2d 336, 338 (Pa. Cmwlth. 1982), or where the relationship 

with a supervisor or co-worker has deteriorated to the point where working conditions 

are intolerable. Karloff v. Unemployment Compensation Board of Review, 531 A.2d 

582, 854 (Pa. Cmwlth. 1987).

In First Federal, the claimant worked as a vice president who chaired 

committee meetings. During the meetings, a senior vice president was generally

“disruptive, defiant, argumentative and also engaged in outbursts.” 957 A.2d at 814. 

The senior vice president was “disrespectful toward [the claimant] in that in front of 

other employees he told her that she did not know what she was doing and that she 

shrugged responsibilities.” Id. After the claimant discussed these problems with 

senior management, she eventually had a meeting with the employer’s president. At 

this meeting, the president “attacked [the claimant’s] leadership skills and 

competency, and referred to the [claimant’s previous] management team . . . as 

criminals.” Id. The president also “subjected [the claimant] to discipline but refused 
9

to permit [the claimant] to respond, kept yelling at [the claimant], and told [the 

claimant] to leave his office.” Id. Thereafter, the claimant voluntarily quit.

Crediting the above facts, the Board in First Federal determined that the 

president unjustly reprimanded the claimant with abusive language; the claimant was 

unable to respond to the discipline imposed by the president; and the senior vice 

president subjected the claimant to unwarranted criticism and ridicule. The Board 

concluded that the claimant had voluntarily quit her employment for cause of a 

necessitous and compelling nature. Id. 

On further appeal, this Court affirmed, stating:

[The claimant] demonstrated more than a mere belief of 

unjust accusation, as the Board concluded that [the 

claimant] was, in fact, unjustly reprimanded with abusive 

language and that [the claimant] was subjected to 

intolerable working conditions. Board’s Opinion, at 3. The 

Board further determined that [the claimant] “could not 

respond to discipline and was subject to criticism and 

ridicule from a senior vice president that was uncalled for 

and incorrect.” Id. We agree with the Board’s conclusion 

that such circumstances existed which produced real and 

substantial pressure for [the claimant] to terminate her 

employment and that a reasonable person in the same 

circumstances would have acted similarly.

First Federal, 957 A.2d at 817.

Here, the Board, as fact-finder, credited Claimant’s version of the 

events, not Malek’s version, and it is Claimant’s testimony on which we must focus. 

Viewing the evidence in the light most favorable to Claimant, her testimony 

established that Malek continuously and increasingly subjected her to abusive 

language, most notably by calling her, among other names, a liar and a cheater. 

Claimant’s testimony also demonstrates that when assessing her work performance, 

Malek made false accusations and imposed unwarranted disciplinary action; Malek
10

would not allow Claimant to respond to his criticism, and he would denounce 

Claimant when she tried to explain or defend her actions. Further, Claimant’s 

testimony proved that she operated under the constant and unnecessary threat of 

suspension, and, on April 14, 2014, was threatened with a suspension, termination, 

and a lawsuit for failing to obey Malek’s unreasonable directive that she disclose the 

content of personal communications unrelated to work.

5

 

Given this record, we conclude that Claimant’s testimony constituted 

substantial evidence that supports the Board’s finding that Malek engaged in abusive 

conduct. As in First Federal, Claimant was unjustly reprimanded, disciplined, and 

threatened, had no opportunity to respond to comments/criticism, and endured verbal 

ridicule on a continuous basis. This collective pattern of activity is substantially 

similar to the facts in First Federal. Accordingly, we conclude that First Federal

controls our disposition of this case. 

Employer argues that our decision in Astolfi compels a contrary result; 

however, we find that case to be readily distinguishable. In Astolfi, the claimant quit 

her job as a receptionist and surgical assistant for the dentist/employer, alleging that 

she had been subjected to verbal abuse by the dentist. The claimant testified that she 

worked in a chaotic environment, complained to the dentist about a conflict between 

two other employees, and the dentist told her to stop acting like “one of her children” 

and to “deal with it.” 995 A.2d at 1287. The claimant further testified that on one 

occasion, the dentist told her to “shape up” or she would be terminated and, when she 

began to cry, the dentist stated that it was a sign of immaturity. Finally, the claimant 

 

5

See Ellis (Etter) v. Unemployment Compensation Board of Review, 449 A.2d 881, 882 (Pa. 

Cmwlth. 1982) (stating that a claimant will not be ineligible for benefits where she declines to obey 

an employer’s unreasonable directive).
11

testified that the dentist yelled at her for speaking too long to a patient and told her 

that she talks “way too much.” Id. On these facts, the Board concluded that the 

claimant established a necessitous and compelling reason to quit. 

On appeal, this Court reversed, concluding that the claimant’s testimony 

was legally insufficient to demonstrate a necessitous and compelling cause. We 

reasoned:

In short, [the claimant’s] testimony demonstrated 

“resentment” and “personality conflicts,” Lynn, 427 A.2d at 

737, but not an intolerable work environment. Being 

“yelled” at for talking too much to patients, which is the 

worst [the claimant] suffered, is not comparable to being 

called names or being unjustly accused of criminal conduct. 

Her work environment was uncomfortable, but not 

intolerable. 

Astolfi, 995 A.2d at 1290. In reaching our decision in Astolfi, this Court distinguished 

First Federal on the basis that the claimant in Astolfi “was not publicly reprimanded 

or accused of being a criminal like her counterpart in First Federal.” Astolfi, 995 

A.2d at 1289.

Here, in contrast to the facts in Astolfi, Claimant was accused of being a 

liar and a cheater in connection with her work and was publically reprimanded with

unwarranted threats of suspension. Accordingly, we conclude that the instant case is 

much more akin to First Federal than it is to Astolfi and that Employer’s reliance on 

Astofi is misplaced. 

Next, Employer argues that this case should be remanded to the Board 

because it failed to determine whether Claimant was suspended or discharged for 

willful misconduct. However, a willful misconduct analysis is only warranted where 

a claimant is suspended or discharged/terminated from employment. See Middletown 
12

Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 224-25 

(Pa. Cmwlth. 2012). Here, the Board specifically found that Claimant voluntarily 

quit, (Finding of Fact No. 7), and because this finding is supported by substantial 

evidence, (N.T. at 5, 11-12, 14), the Board did not err in analyzing this matter as a 

voluntary quit case rather than as a willful misconduct case. 

Upon our review, we conclude that the Board’s findings are supported 

by substantial evidence and that the Board did not commit legal error. Accordingly, 

we affirm. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Access Ability, Inc., :

Petitioner :

: No. 2136 C.D. 2014

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 18th day of August, 2015, the October 28, 2014 order 

of the Unemployment Compensation Board of Review is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge