IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duncan R. Smith, :

: No. 792 C.D. 2016

Petitioner : Submitted: September 30, 2016

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 4, 2017

Duncan R. Smith (Claimant) petitions pro se for review of the March 

30, 2016 order of the Unemployment Compensation Board of Review (Board) that 

affirmed the referee’s determination and held that Claimant was ineligible for

unemployment compensation benefits under Section 402(b) of the Unemployment 

Compensation Law (Law).1 We affirm.

Claimant was employed by Sears (Employer) beginning March 8, 

2009. At the time of separation, Claimant was working as a sales associate of 

consumer electronics for approximately 25 hours per week at rate of pay of $10.81 

 

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

802(b). Section 402(b) provides that an employee shall be ineligible for compensation for any 

week in which his unemployment is due to voluntarily leaving work without cause of a 

necessitous and compelling nature.
2

per hour. Findings of Fact (F.F.) No. 1. Employer decided to no longer utilize sales 

associates exclusively for consumer electronics and offered Claimant a 

commission-based position selling both consumer electronics and appliances. 

Claimant, assuming that he would not make as much money on a commission 

basis, voluntarily quit work effective July 18, 2015. Claimant never attempted to 

work in the commission-based position. Notes of Testimony (N.T.), February 22, 

2016, at 5-6.

Claimant filed for unemployment benefits on July 19, 2015, citing 

lack of work as the reason for the separation. Claimant received $175.00 weekly in 

benefits for the weeks of August 1, 2015 through October 3, 2015, totaling 

$1750.00. F.F. Nos. 6-8. The local service center determined that Claimant was not 

unemployed due to lack of work and established a fault overpayment for which 

Claimant was penalized 12 benefits weeks and a financial penalty of $262.50, 

equalling 15% of the benefits already received, pursuant to Section 801 of the Law.

43 P.S. §871. Claimant appealed.

A Notice of Hearing was sent to Claimant informing him that a 

referee’s hearing would be held by phone on February 22, 2016 at 10:30 a.m. The 

Notice specifically stated:

Please be advised that the referee will be calling parties 

on a telephone line that will not display the originating 

telephone number. Some telephones have the capability 

of blocking incoming calls for which no originating 

number is displayed. If your telephone blocks such calls 

and if you expect to participate in the hearing by 

telephone, it is your responsibility to ensure that you 

are able to accept the call to participate in the 

hearing.
3

Notice of Hearing at 2 (emphasis in original). When the referee attempted to 

contact Claimant on the date of the hearing, she heard this recorded message:

The party you are calling does not wish to talk to callers 

who block their numbers. If you wish to reach this party, 

please, hang up and place your call again without

blocking your number.

N.T. at 1. Kimberly Gillette, Assistant Store Manager, testified on behalf of 

Employer and was the sole witness in the hearing.

As a result of his absence from the hearing, Claimant offered no 

evidence for the record. The referee concluded that Claimant failed to meet his 

burden of proving a necessitous and compelling reason to voluntarily quit his 

employment. Accordingly, the referee issued an order affirming the local service 

center’s determination that Claimant was ineligible for benefits under Section 

402(b) and assessing penalties for fault overpayment.

2

Claimant appealed to the Board, arguing that he had proper cause for 

missing the hearing, a necessitous and compelling reason for quitting, and 

requesting remand. Section 504 of the Law states that “[t]he board shall have 

power, on its own motion, or on appeal, to . . . direct the taking of additional 

evidence.” 43 P.S. §824. Pursuant to Section 504, “the Board has the discretion to 

decide whether to grant a request for remand.” Fisher v. Unemployment 

 

2

Section 101.51 of the Board’s regulations states, in relevant part, that “[i]f a party 

notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the 

hearing may be held in his absence.” 34 Pa. Code §101.51. If a claimant fails to attend the 

referee’s hearing without ‘‘proper cause,” the referee must issue a decision on the merits with 

findings of fact based upon the evidence of record, including any testimony that the employer 

offered in support of its burden of proof. Ortiz v. Unemployment Compensation Board of Review, 

481 A.2d 1383, 1386 (Pa. Cmwlth. 1984).
4

Compensation Board of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997).3 The 

Board accepted, without change, the findings of the referee. The Board also found 

that Claimant did not have proper cause for his non-appearance at the hearing and

denied Claimant’s request for remand. Accordingly, the Board affirmed the order

of the referee.

On appeal to this Court,4 Claimant argues that the Board erred in 

concluding that he did not have a necessitous and compelling reason to quit his 

 

3

See also Section 101.23 of the Board’s regulations, 34 Pa. Code §101.23(a), 

(“Continuance of a hearing will be granted only for proper cause and upon the terms as the 

tribunal may consider proper.”); Section 101.24(a) of the Board’s regulations, 34 Pa. Code 

§101.24(a) (“If a party who did not attend a scheduled hearing subsequently gives written notice

. . . and it is determined by the tribunal that his failure to attend the hearing was for reasons 

which constitute ‘proper cause,’ the case shall be reopened. Requests for reopening . . . shall be 

in writing; shall give the reasons believed to constitute ‘proper cause’ for not appearing; and they 

shall be delivered or mailed . . . to the [Board] . . . .”); Section 101.24(c) of the Board’s 

regulations, 34 Pa. Code §101.24(c) (“If the request to have the hearing reopened is denied, the 

Board will append to the record the request, supporting material and the ruling on the request, so 

that it shall be subject to review in connection with any further appeal to the Commonwealth 

Court.”).

4 Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, and whether necessary findings of fact are 

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

525 A.2d 841, 843-44 (Pa. Cmwlth. 1987). The Board is the factfinder in unemployment 

compensation cases, empowered to determine credibility of witnesses and resolve conflicts in 

evidence. Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. 

Cmwlth. 2000). The Board’s findings are binding on appeal if they are supported by substantial 

evidence. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 292, 299 (Pa. 

Cmwlth. 2013). “Substantial evidence is 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). We view the record in the light most favorable 

to the party prevailing before the Board and afford that party the benefit of all reasonable 

inferences that can be drawn from the evidence to determine if substantial evidence exists. Big 

Mountain Imaging v. Unemployment Compensation Board of Review, 48 A.3d 492, 494–95 (Pa.

Cmwlth. 2012).
5

employment. Claimant asserts that his position was eliminated and research 

regarding commission-based work through Employer’s computer system proved 

that he would be paid less if he accepted the proffered position.

Under Section 402(b) of the Law, a claimant is ineligible for 

unemployment benefits if he voluntarily terminates employment without cause of a 

necessitous and compelling nature. The claimant has the burden of proving a 

necessitous and compelling cause. Dopson v. Unemployment Compensation Board 

of Review, 983 A.2d 1282, 1284 (Pa. Cmwlth. 2009). Necessitous and compelling 

cause “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.” 

Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 

654 A.2d 280, 282 (Pa. Cmwlth. 1995) (quoting Taylor v. Unemployment 

Compensation Board of Review, 378 A.2d 829, 832-33 (Pa. 1977)). Whether a 

person has a necessitous and compelling reason to voluntarily quit employment is a 

matter of law and subject to this Court’s review. Middletown Township v. 

Unemployment Compensation Board of Review, 40 A.3d 217, 227 (Pa. Cmwlth. 

2012).

After careful review of the record, we conclude the Board’s findings 

are supported by substantial evidence. These findings support the Board’s 

conclusion that Claimant failed to demonstrate a necessitous and compelling 

reason for voluntarily quitting his employment. Specifically, the Board determined 
6

that Claimant lacked proper cause for his non-appearance at the hearing5and, by 

failing to appear, Claimant offered no competent evidence to the record to support 

his assertion that he had a necessitous and compelling reason for quitting. In the 

absence of any record evidence, Claimant cannot rely on his own version of the 

facts in his appellate brief to meet his burden of proof. See, e.g., Anker 

v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 434 C.D.

2010, filed December 10, 2010), slip op. at 5 (“Unfortunately for Claimant, her 

failure to appear at the Referee's hearing meant that she failed to provide any 

competent evidence to meet her burden of proof on the ultimate legal 

issue. Accordingly, the Board did not err in deciding the case based upon the 

available records and denying benefits under Section 402(b) of the Law, 43 P.S. § 

802(b).”) (footnote omitted).6

Finally, Claimant also asserts, for the first time, that the Board erred 

in affirming the finding of a fault overpayment and the assessment of penalties.

However, because Claimant did not raise this issue before the Board, it is waived 

and it will not be considered on appeal.

7 Pa. R.A.P. 1551(a); Lewis v. 

Unemployment Compensation Board of Review, 42 A.3d 375, 379 n.8 (Pa. 

Cmwlth. 2012) (holding that a claimant waived issues regarding his employer's 

 

5 Claimant failed to raise the issue of his lack of proper cause for his non-appearance at 

the hearing in his Statement of Questions Involved. This Court may not consider questions not 

stated in the Statement of Questions Involved. Pa. R.A.P. 2116(a).

6

Anker, as an unreported panel decision of this Court, has persuasive value, but it does 

not constitute binding precedent. Internal Operating Procedure 414(a), 210 Pa. Code § 69.414(a).

7 Claimant also failed to outline this issue in his Statement of Questions Involved, 

therefore waiving the issue before this Court. Pa. R.A.P. 2116(a).
7

disciplinary procedures where he failed to raise the issues in his appeal to the 

Board).

Accordingly, we affirm the Board’s order.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Duncan R. Smith, :

: No. 792 C.D. 2016

Petitioner : 

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 4

th day of January, 2017, the order of the 

Unemployment Compensation Board of Review, dated March 30, 2016, is 

AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge