IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian E. Heckmann, :

Petitioner :

:

v. : No. 1313 C.D. 2018

: Submitted: February 1, 2019

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: April 16, 2019

Petitioner Brian E. Heckmann (Claimant), pro se, petitions for review 

of an order of the Unemployment Compensation Board of Review (Board). The 

Board affirmed a Referee’s determination that Claimant was ineligible for benefits 

under Section 402(b) of the Unemployment Compensation Law (Law),1relating to 

voluntary separation from employment. For the reasons set forth below, we now 

affirm the Board’s order.

Claimant filed for unemployment compensation benefits following his 

separation from employment with Adecco, USA, Inc. (Employer), a temporary 

staffing agency. Claimant received $789 of unemployment compensation benefits 

 

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

43 P.S. § 802(b).
2

for the weeks ending April 8, 2018, through April 22, 2018. By notice dated 

June 12, 2018, the Erie Unemployment Compensation Service Center (Service 

Center) determined Claimant to be ineligible for benefits under Section 402(b) of 

the Law and assessed a fault overpayment in the amount of $789 under 

Section 804(a) of the Law.2 (Certified Record (C.R.), Item No. 4.) Claimant 

appealed the Service Center’s determination. 

On June 22, 2018, the Referee’s office mailed to Claimant at his address 

in Wexford, Pennsylvania, notice of a hearing scheduled for July 9, 2018, in 

Pittsburgh, Pennsylvania. The notice informed Claimant of the issue(s) to be 

considered. It also advised Claimant that he “should attend the hearing to protect 

[his] rights” and that he had a right to “present . . . testimony and evidence,” 

“question opposing parties and witnesses,” and “be represented by an attorney or 

other advocate.” (C.R., Item No. 7 at 2.) The notice provided that a party may 

represent himself or may be represented by an attorney or other advocate. (Id.) 

The Referee conducted an evidentiary hearing, at which neither 

Claimant nor Employer appeared. During the hearing, the Referee entered into the 

record various documents, including various Service Center documents, notice of 

the hearing, a statement from Claimant indicating that he will not be appearing at 

the hearing and setting forth various contentions of Claimant (Exhibit 6), and a letter 

from Employer’s representative to the Service Center providing information on 

behalf of Employer (Exhibit 9). (C.R., Item No. 10. at 1.) The Referee noted that 

Claimant’s father appeared at the hearing and wanted to represent Claimant, but,

because the Referee did not have anything in writing from Claimant indicating that 

 

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

§ 874(a). Section 804(a) of the Law, pertaining to fault overpayments, requires a claimant to repay 

the fault overpayment with interest. 
3

his father was to be his representative, the Referee did not permit the father to 

represent Claimant. (Id.) The Referee also noted that Claimant’s father provided an 

address for Claimant (in Florida), which differed from the address on file for 

Claimant. (Id.) 

The Referee denied benefits pursuant to Section 402(b) of the Law, 

relating to voluntary separation from employment, and assessed a non-fault

overpayment in the amount of $789 under Section 804(b) of the Law.

3

 In so doing, 

the Referee made the following findings of fact:

1. [Claimant] worked for [Adecco] from 

March 23, 2017, until his last day of work, 

March 31, 2017.

2. [Claimant] voluntarily left his employment.

3. If [Claimant] had not voluntarily left his 

employment, continuing work was available for 

him.

4. [Claimant] received $789.00 in benefits for the 

weeks ending April 8, 2017, through April 22, 2017. 

(C.R., Item No. 11.) The Referee reasoned that Claimant did not meet the burden of 

proving that he voluntarily terminated his employment for a necessitous and 

compelling reason. (Id.) The Referee also explained that Claimant’s father appeared 

at the hearing without identification or authorization from Claimant. (Id.) Instead, 

 

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

43 P.S. § 874(b). Section 804(b)(1) of the Law, pertaining to non-fault overpayments, does not 

require a claimant to repay the non-fault overpayment. Rather, Section 804(b)(1) of the Law, 

provides, in part: 

Any person who other than by reason of his fault has received with respect to a 

benefit year any sum as compensation under this act to which he was not entitled 

shall not be liable to repay such sum but shall be liable to have such sum deducted 

from any future compensation payable to him with respect to such benefit year, or 

the three-year period immediately following such benefit year, in accordance with 

the provisions of this paragraph.
4

Claimant’s father provided a document, purporting to be from Claimant. (Id.) The 

Referee concluded that the document constituted hearsay and was not corroborated 

by any competent evidence in the record. (Id.) Finally, the Referee concluded that 

there was no evidence sufficient to establish a fault overpayment. (Id.) Thus, the 

Referee assessed a non-fault overpayment. (Id.)

Claimant appealed the Referee’s decision to the Board, asserting factual 

and procedural issues. The Board adopted and incorporated the Referee’s findings 

of fact and conclusions of law and affirmed the Referee’s decision. (C.R., Item 

No. 13.) Claimant now petitions this Court for review.

On appeal,4 Claimant argues that the Referee’s refusal to allow 

Claimant’s father to participate in the hearing as Claimant’s representative and the 

Referee’s failure to inform Claimant of procedures for participating via telephone 

constituted violations of Claimant’s right to due process. As to the merits, Claimant 

argues that the Referee and Board erred in concluding that he did not have 

necessitous and compelling reasons to quit.5

First, we address Claimant’s argument that the Referee violated his due 

process rights. The essential elements of due process in an administrative 

proceeding are notice and an opportunity to be heard. Groch v. Unemployment 

Comp. Bd. of Review, 472 A.2d 286, 287-88 (Pa. Cmwlth. 1984); Wojciechowski

 

4 This Court’s standard of review 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704. 

5 Claimant also argues that this Court does not have personal jurisdiction over him. This 

argument has no merit because Claimant is the party who filed this unemployment compensation 

claim, appealed to the Referee and Board, and brought this subsequent appeal in this Court, thereby 

clearly availing himself of process and this Court’s jurisdiction.
5

v. Unemployment Comp. Bd. of Review, 407 A.2d 142, 143 (Pa. Cmwlth. 1979). An 

allegation of a violation of due process essentially challenges whether the Referee 

conducted the hearing in accordance with Section 101.21 of Title 34 of the 

Pennsylvania Code.6 Hackler v. Unemployment Comp. Bd. of Review, 24 A.3d 1112, 

1115 (Pa. Cmwlth. 2011). This Court has consistently held that the unemployment 

compensation authority’s failure to provide an itemized list of a claimant’s options 

upon appeal is not a violation of due process. Groch, 472 A.2d at 288;

Wojciechowski, 407 A.2d at 143. Further, a referee’s failure to itemize each of a 

claimant’s available options on appeal is not procedural error. Groch, 472 A.2d 

at 288. Unemployment compensation regulations, including telephone regulations, 

are publicly available.

7

 The referee, by her own motion, “may schedule . . . 

testimony by telephone . . . when it appears from the record that the party . . . is 

located at least 50 miles from the location [of the hearing].” 34 Pa. Code 

§ 101.128(a). The referee may also schedule testimony by telephone on a motion 

by one of the parties when either the parties consent to the telephone testimony or a 

witness is “reasonably unable to testify in person due to a compelling employment, 

transportation, or health reason, or other compelling problem.” 34 Pa. Code 

§ 101.128(b). 

Claimant contends that the unemployment compensation authorities 

offered him no meaningful opportunity to present facts in his defense. Claimant 

argues that neither the Service Center nor the Referee informed him of his option to 

participate by phone, and, when he made efforts to have representation or participate 

by phone, the Referee enforced unmentioned restrictions. We observe, however, 

 

6

34 Pa. Code § 101.21.

7 For example, Pennsylvania’s regulations on the scheduling of telephone testimony is 

found under 34 Pa. Code § 101.128.
6

that when Claimant received unemployment compensation benefits and when he 

appealed the Service Center’s determination, Claimant provided his address as 

Wexford, Pennsylvania. The Referee had no reason to know that Claimant was 

living in Florida, because Claimant did not provide the Referee with an up-to-date 

address after moving from Pennsylvania to Florida. It was Claimant’s responsibility 

to inform the Service Center that he was no longer living in Pennsylvania. The 

Referee had no reason to know that Claimant now lived more than 50 miles from the 

hearing location, and, therefore, she did not have reason to schedule the hearing as 

a telephone hearing. Further, because the telephone regulations are publically 

available, the Referee’s failure to itemize Claimant’s options under the regulations 

does not constitute procedural error.

Claimant also argues that the Referee violated his due process rights 

when the Referee did not permit Claimant’s father to advocate on Claimant’s behalf. 

A review of the record reveals that the Referee provided notice and advised Claimant

of his procedural rights. The notice of hearing informed Claimant of the date of the 

hearing, the issues under consideration, what evidence he would need, and his rights 

on appeal. These rights included his right to present testimony and evidence, to 

cross-examine witnesses, and to be represented by an attorney or other 

representative. The notice of hearing further explained how to contact the Referee 

regarding specific requests and what to do if a party was unable to attend the hearing. 

The Referee provided Claimant notice and the opportunity to be heard, but Claimant

chose not to appear. Claimant’s “failure to avail [him]self of that opportunity before 

the [R]eferee is no cause for any remedial action on [his] behalf.” Groch, 472 A.2d 

at 288.
7

There is no unemployment compensation regulation that provides the 

required steps to permit a representative to appear on behalf of a claimant at a 

hearing. Regarding representation, Section 214 of the Law8 merely provides: “Any 

party in any proceeding under this act before the department, a referee or the board 

may be represented by an attorney or other representative.” See also 34 Pa. Code 

§ 61.25(a)(3)(ii) and (7). The Referee did not permit Claimant’s father to appear on 

behalf of Claimant, concluding that the document, purporting to be from Claimant, 

authorizing Claimant’s father to appear on Claimant’s behalf, was inadmissible 

hearsay.9 (C.R., Item No. 11.) The Referee noted that because Claimant did not 

provide a writing indicating that he was to be represented, the Referee did not permit 

Claimant’s father to participate in the hearing. (C.R., Item No. 10, at 1.) There is 

no legal authority to support this decision. The Referee abused her discretion in 

prohibiting Claimant’s father from appearing on behalf of Claimant. 

The Referee’s error regarding representation, however, constitutes

harmless error. Claimant did not submit evidence of his claim, challenge the hearsay 

objection on appeal to this Court, or explain what evidence Claimant’s father would 

have introduced had he been permitted to represent Claimant. It is particularly 

noteworthy that Claimant has not represented to this Court that his father had

personal knowledge of the circumstances of Claimant’s separation from 

employment or planned to introduce testimony or other admissible evidence. 

 

8 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of 

June 15, 2005, P.L. 8, 43 P.S. § 774. 

9 A claimant’s confidential information may not be disclosed to a representative unless the 

representative “present[s] a written authorization from the claimant or employer being 

represented.” 34 Pa. Code § 61.25(a)(7). The Pennsylvania Code provides three exceptions to the 

requirement of written authorization, but none of these exceptions are relevant to the present case. 

34 Pa. Code § 61.25(a)(7)(i-iii). Whether confidential information may be disclosed is a separate 

issue from whether a representative may represent a claimant at a hearing.
8

Claimant offers no explanation as to how his father’s participation at the hearing 

would have affected the outcome of the proceeding, and we cannot discern how the 

outcome would be different. Accordingly, any error in prohibiting Claimant’s father

from appearing on behalf of Claimant is harmless. 

We next address whether the Referee and Board erred in concluding 

that Claimant did not have necessitous and compelling reasons to quit.

Section 402(b) of the Law, pertaining to voluntary termination, provides, in part, that 

an employee shall be ineligible for compensation for any week “[i]n which his 

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

compelling nature.” Claimant disputes that he voluntarily terminated his 

employment. Thus, we must first determine whether Claimant left his employment 

voluntarily. 

Whether Claimant’s separation from his employment is the result of a 

voluntary action or a discharge is a question of law subject to our review and must 

be determined based on the totality of the facts surrounding the termination of 

employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 

(Pa. Cmwlth. 1996). Pennsylvania case law has established “‘a finding of voluntary 

termination is essentially precluded unless the claimant had a conscious intention to 

leave his employment.’” Monaco v. Unemployment Comp. Bd. of Review,

565 A.2d 127, 129 (Pa. 1989) (quoting Roberts v. Unemployment Comp. Bd. 

of Review, 432 A.2d 646, 648 (Pa. Cmwlth. 1981)). A claimant voluntarily 

terminates his employment when he resigns, leaves, or quits his employment without 

action by the employer. Roberts, 432 A.2d at 648. To be interpreted as a discharge, 

there must be the immediacy and finality of a firing. Charles v. Unemployment 

Comp. Bd. of Review, 552 A.2d 727, 729 (Pa. Cmwlth. 1989). 
9

Employer, through its representative, Equifax, as part of its “Employer 

Separation Response,” reported to the Service Center that Claimant had voluntarily 

quit a temporary position due to job dissatisfaction without discussing the matter 

with Employer prior to separation. (C.R., Item No. 2, letter from Equifax, dated 

June 8, 2018.) Claimant did not provide any information to the Service Center in 

response to the questionnaire sent to him by the Service Center, although he did 

submit an email to the Referee, sent July 5, 2018, wherein he appears to dispute that 

he did any work as part of his employment in what he referred to as Employer’s 

hiring pool.

10

 Additionally, Claimant did not explain what evidence his father would 

have provided, had he been permitted to represent Claimant, nor how having his 

father as a representative would have affected the proceeding. Given that neither 

Employer nor Claimant appeared at the hearing, the Referee considered the written 

information provided to her and found that Claimant had voluntarily left his 

employment while continuing work was available. Furthermore, the record is 

devoid of any evidence indicating that Employer terminated Claimant’s 

employment. 

A determination that Claimant voluntarily left his employment, 

however, is not an absolute bar to recovery of unemployment compensation benefits. 

Where the termination of employment is voluntary, in order to receive 

unemployment compensation benefits the claimant bears the burden of 

demonstrating that it was for a necessitous and compelling reason. Pennsylvania 

Gaming Control Bd. v. Unemployment Comp. Bd. of Review, 47 A.3d 1262, 1265 

 

10 Although Claimant, in his email to the Referee, appeared to dispute that he worked for 

Employer from March 23, 2017, through March 31, 2017, as found by the Referee, Claimant does 

not dispute this employment in his brief to this Court. Rather, he takes the position that he was 

not well-suited to the employment, and he and Employer agreed that he would no longer continue 

in the position. 
10

(Pa. Cmwlth.), appeal denied sub nom. 62 A.3d 381 (Pa. 2012). Whether a claimant 

has a cause of a necessitous and compelling nature to voluntarily leave employment 

is a question of law subject to this Court’s review. (Id.) To establish cause of a 

necessitous and compelling nature, Claimant must establish: (1) circumstances 

existed that produced real and substantial pressure to terminate employment, (2) like 

circumstances would compel a reasonable person to act in the same manner, (3) the 

claimant acted with ordinary common sense, and (4) the claimant made a reasonable 

effort to preserve his employment. Procito v. Unemployment Comp. Bd. of Review, 

945 A.2d 261, 264 (Pa. Cmwlth. 2008). Mere dissatisfaction with working 

conditions does not constitute cause of a necessitous and compelling nature for 

voluntarily terminating employment. McKeown v. Unemployment Comp. Bd. of 

Review, 442 A.2d 1257, 1258 (Pa. Cmwlth. 1982).

Here, Claimant argues that the assignment was not what he expected 

and that the nature of the assignment was unsuitable, so he and Employer agreed that 

he would stop working the temporary assignment. As such, he contends that he did 

not voluntarily quit his employment, but that, if the Court were to conclude 

otherwise, he had necessitous and compelling reasons to do so given the unsuitable 

nature of the employment. This argument, however, is not supported by the record. 

The only evidence before the Referee and Board indicated that Claimant voluntarily 

terminated his employment due to dissatisfaction with the assignment. There is 

nothing in the record to show that Claimant had a necessitous and compelling reason 

for leaving his assignment. Rather, his reason was mere job dissatisfaction. Based 

on the record, limited as it may be, the Referee and Board determined that Claimant 

had voluntarily terminated his employment and did not establish cause of a 

necessitous and compelling nature to do so. Claimant attempts to provide additional 
11

facts outside of the record to support his argument. Our review, however, is 

restricted to evidence of record. Based on the record, Claimant failed to demonstrate 

that he voluntarily terminated his employment for a necessitous and compelling 

reason.

Accordingly, we affirm the order of the Board.

P. KEVIN BROBSON, Judge

Judge Covey concurs in the result only.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian E. Heckmann, :

Petitioner :

:

v. : No. 1313 C.D. 2018

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 16th day of April, 2019, the order of the 

Unemployment Compensation Board of Review is AFFIRMED.

P. KEVIN BROBSON, Judge