IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lexi S. Bowersox, :

Petitioner :

:

v. : No. 1360 C.D. 2016

: Submitted: January 6, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: March 16, 2017

Lexi Bowersox (Claimant) petitions for review of an adjudication of 

the Unemployment Compensation Board of Review (Board) denying her claim for 

benefits under the Unemployment Compensation Law (Law).1The Board 

concluded that Claimant was ineligible for unemployment compensation benefits 

under Section 402(b) of the Law, 43 P.S. §802(b),2because Claimant voluntarily 

quit her job without a necessitous and compelling cause. Finding no error by the 

Board, we affirm.

Claimant worked for Somerset Chiropractic Service (Employer) as a 

part-time receptionist from August 31, 2012, to October 23, 2015. Claimant 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-

918.10.

2

Section 402(b) of the Law provides, in relevant part, that an employee is ineligible for 

unemployment benefits when her unemployment is due to “voluntarily leaving work without 

cause of a necessitous and compelling nature[.]” 43 P.S. §802(b).
2

tendered her resignation on October 16, 2015, with an effective date of October 30, 

2015. She applied for unemployment benefits. The UC Service Center granted her 

claim, and Employer appealed. The Referee conducted a hearing on January 26, 

2016, after which he reversed the UC Service Center’s decision. Claimant 

appealed that decision, and on May 4, 2016, the Board issued an order remanding 

the matter for the Referee to consider Claimant’s eligibility under Section 402(e) 

of the Law, 43 P.S. §802(e).

3

 A remand hearing was held on June 2, 2016. 

Claimant appeared pro se, and Employer appeared with counsel.

The following facts are adduced from the testimony presented at both 

hearings. Employer is a Pennsylvania chiropractic business co-owned by Thomas 

and Margaret Connelly, both of whom supervised Claimant. Claimant testified that 

Mrs. Connelly subjected Claimant to verbal mistreatment, which included yelling 

and sometimes refusing to speak to Claimant. Further, on multiple occasions, Mrs. 

Connelly would communicate with Claimant with notes rather than speaking to her 

directly. For example, Claimant testified about a note on the thermostat stating 

that no one except Mrs. Connelly could adjust the thermostat temperature; 

previously, it was Claimant’s job to adjust the thermostat when appropriate.

Claimant testified that when she spoke to the Connellys and requested 

an explanation for her mistreatment, she was informed that Claimant had done 

nothing wrong and was not being mistreated. Nothing changed. Accordingly, on 

October 16, 2015, Claimant tendered her resignation, effective October 30, 2015, 

and Employer began looking for her replacement. On October 21, 2015, Claimant 

asked for her job back, but her request was refused. She made the request again 

 

3

Section 402(e) of the Law bars a claim for benefits where the claimant was discharged for 

willful misconduct. 43 P.S. §802(e). That section is not at issue in this appeal.
3

two days later, and it was refused again. Because Claimant’s services were no 

longer required, October 23, 2015, was her last day of work.

The Connellys testified that they did not mistreat Claimant and always 

treated her in a business-like manner and no different than other employees. 

Further, the Connellys testified that they told Claimant on multiple occasions that 

there were no issues with her performance of her job duties. 

The Board found Employer’s testimony credible and resolved all 

conflicts in the testimony in Employer’s favor. The Board rejected Claimant’s 

claims that she worked in a hostile work environment and held that Claimant was 

ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b), because 

she did not attempt to preserve her employment before quitting. Claimant 

petitioned for this Court’s review. 

On appeal,4 Claimant raises three issues. First, Claimant argues that 

as a victim of mistreatment in the workplace, she had a necessitous and compelling 

reason to terminate her employment. Second, Claimant argues that the Referee 

failed to adequately assist her at the hearing. Third, Claimant argues that the 

Board did not review all of the evidence submitted in the case.

In a Section 402(b) action, the claimant bears the burden of proving 

that she voluntarily resigned for necessitous and compelling reasons. Danner v. 

Unemployment Compensation Board of Review, 443 A.2d 1211, 1212 (Pa. 

Cmwlth. 1982). As part of her burden, a claimant must demonstrate that she 

addressed her concerns with her supervisor prior to quitting. Id. This Court has 

 

4 Our review is to determine “whether constitutional rights were violated, whether an error of law 

was committed and whether necessary findings of fact are supported by substantial evidence.” 

First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 

814 n.2 (Pa. Cmwlth. 2008) (citation omitted).
4

defined “necessitous and compelling cause” as “a real and substantial pressure to 

terminate employment which would compel a reasonable person to do so.” Id.

Determining what constitutes a necessitous and compelling reason for resigning is 

a question of law subject to this Court’s review. Ann Kearney Astolfi DMD PC. v. 

Unemployment Compensation Board of Review, 995 A.2d 1286, 1289 (Pa. 

Cmwlth. 2010).

Claimant first argues that Employer’s mistreatment of her provided 

her with a necessitous and compelling reason to resign. In considering such an 

argument, this Court has held:

Resentment of a reprimand, absent unjust accusations, profane 

language or abusive conduct, []; mere disappointment with 

wages, []; and personality conflicts, absent an intolerable 

working atmosphere, [], do not amount to necessitous and 

compelling causes.

Lynn v. Unemployment Compensation Board of Review, 427 A.2d 736, 737 (Pa. 

Cmwlth. 1981) (citations omitted). Racial slurs and excessive taunting are 

examples of the types of conditions that may constitute a necessitous and 

compelling reason to voluntarily terminate employment. Taylor v. Unemployment 

Compensation Board of Review, 378 A.2d 829 (Pa. 1977) (holding that employee 

had necessitous and compelling reason to quit because employer repeatedly called 

him racially derogatory names); Mercy Hospital of Pittsburgh v. Unemployment 

Compensation Board of Review, 654 A.2d 264, 266 (Pa. Cmwlth. 1995) (holding 

that employee had necessitous and compelling reason to quit after co-workers 

repeatedly called him derogatory names such as “faggot,” and employer was given 

opportunity to fix problem).
5

Here, Claimant failed to meet her burden of demonstrating that her 

alleged mistreatment was anything more than a personality conflict with her 

supervisors. Claimant’s situation is analogous to that of the claimant in Astolfi, 

995 A.2d 1286. In Astolfi, the claimant worked in a small office, where the 

employees often argued with one another. When the claimant expressed her

concerns about the work environment to her supervisor, she was told that she was 

acting like a child. The supervisor also repeatedly yelled at the claimant. This 

Court held that this record did not give the claimant a necessitous and compelling 

cause to quit.

Here, as in Astolfi, Claimant has demonstrated that her work 

environment was uncomfortable. Claimant’s only evidence of mistreatment was 

her testimony that one supervisor yelled at her and sometimes refused to 

communicate face to face. Significantly, Claimant twice asked for her job back 

after she resigned, which suggests that Claimant’s work environment was not

intolerable. Because Claimant did not establish an intolerable work environment, 

she failed to prove that she had a necessitous and compelling reason to quit.

Claimant next argues that the Referee failed to adequately assist her 

during the hearing. Specifically, Claimant contends that the Referee did not allow 

her adequate time to review the record and did not aid her in developing relevant 

evidence during the hearing.

When conducting a hearing with an unrepresented party, a referee is

encouraged to “advise him as to his rights, aid him in examining and crossexamining witnesses, and give him every assistance compatible with the impartial 

discharge of [the referee’s] official duties.” 34 Pa. Code §101.21(a). This rule,

however, does not require that the referee act as an advocate for an unrepresented 
6

party. Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081, 

1085 (Pa. 1985). Although the referee must provide reasonable assistance to a pro 

se litigant, “any layperson choosing to represent himself in a legal proceeding 

must, to some reasonable extent, assume the risk that his lack of expertise and legal 

training will prove his undoing.” Id. at 1086 (quoting Groch v. Unemployment 

Compensation Board of Review, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).

Contrary to Claimant’s arguments on appeal, the Referee assisted 

Claimant in examining her witnesses throughout the hearing to ensure she had an 

opportunity to develop the facts of her case. Claimant’s contention that the 

Referee was required to instruct her as to the relevancy of documents and other

evidence and assist her in responding to Employer’s objections assumes that the 

Referee’s role was to act as her advocate, which this Court has made clear is not 

the case. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73, 

77 (Pa. Cmwlth. 1985) (stating that referee is not required to, and should not 

assume, the role of claimant’s advocate). In sum, Claimant’s second argument 

lacks merit.

Finally, Claimant argues that the Board did not review all of the 

evidence submitted in the case. Claimant asserts that if the Board had reviewed the 

transcripts, it would have found procedural errors. Specifically, Claimant claims 

that: (1) the Referee was biased against her at the hearing; (2) neither she nor

Employer received a copy of the Employer’s initial appeal from the UC Service 

Center’s notice of determination until after the first hearing; and (3) she should 

have received copies of her own separation information questionnaire, Employer’s 

separation information questionnaire and the records of certain oral interviews.
7

Even if this Court agreed that Claimant has identified procedural 

errors, which it does not, she has not demonstrated how any of the alleged errors 

prejudiced her. It is axiomatic that a litigant is not entitled to a perfect hearing, but 

rather a fair hearing. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008) 

(holding that, even in the more stringent criminal context, a capital defendant is not 

entitled to a perfect trial). If a claimant is asserting a procedural error, she must 

establish prejudice in order to prevail. D.Z. v. Bethlehem Area School District, 2 

A.3d 712, 719 (Pa. Cmwlth. 2010). In the instant case, Claimant did not allege any 

harm from any of the alleged errors. Moreover, Claimant was afforded not one but 

two hearings during which she explained, at length, the reasons for her separation 

from employment. Claimant had a full and fair opportunity to show that she had a 

necessitous and compelling reason to quit her job. Unfortunately she failed to 

carry her burden of proof.

For all these reasons, the order of the Board is affirmed.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lexi S. Bowersox, :

Petitioner :

:

v. : No. 1360 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 16th day of March, 2017, the order of the 

Unemployment Compensation Board of Review dated June 27, 2016, in the abovecaptioned matter is AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge