IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert E. Michael, :

:

Petitioner :

:

v. : No. 997 C.D. 2015

:

Unemployment Compensation : Submitted: November 13, 2015

Board of Review, :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: March 9, 2016

Robert E. Michael (Claimant), pro se, petitions for review of a May 6, 2015 

Order of the Unemployment Compensation (UC) Board of Review (Board) finding 

Claimant ineligible for UC benefits pursuant to Section 402(b) of the UC Law 

(Law)2because he voluntarily left his employment with Pittsburgh Protection 

Services (Employer) on December 15, 2014 without cause of a necessitous and 

 

1

This case was assigned to the opinion writer before January 4, 2016, when Judge 

Leavitt became President Judge.

2 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 is 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.” Id.
2

compelling nature. On appeal,3 Claimant argues that the Board erred by: (1) 

finding that Claimant did not have proper cause for his nonappearance at the 

March 3, 2015 consolidated Referee hearing;4and (2) concluding that there was no 

evidence supporting Claimant’s contention that he had a necessitous and 

compelling reason to voluntarily leave his employment on December 15, 2014.

5

 

Discerning no error, we affirm.

 

3

“Claimant had two [] appeals pending before the Board at appeal numbers B-15-09-C1920 and B-15-09-G-0932” for two different separations from Employer, this one from 

December 15, 2014 and a second occurring on January 7, 2015. (Board’s 998 C.D. 2015 Br. at 3 

n.3.) “In issuing its adjudications, the Board inadvertently transposed the appeal numbers, 

resulting in the findings of fact [not matching the discussion and compensable] week ending 

dates listed in the adjudication headers. Claimant appealed both adjudications.” (Board’s 998 

C.D. 2015 Br. at 3 n.3.) The error was not discovered “until after Claimant had filed [and 

served] his briefs. On the Board’s motion to consolidate these matters, Senior Judge Quigley 

ordered the appealed adjudications [] be switched.” (Board’s 998 C.D. 2015 Br. at 3 n.3.) 

Senior Judge Quigley found that “the appeal at 997 C.D. 2015 [is] deemed to be an appeal of the 

Board’s decision relating to the December 15, 2014 separation, and should correctly be identified 

as Appeal No. B-15-09-G-0932.” Robert E. Michael v. Unemployment Compensation Board of 

Review, (Pa. Cmwlth., Nos. 997 and 998 C.D. 2015, filed October 6, 2015) (single judge op.). 

The companion “[a]ppeal at 998 C.D. 2015 [is] deemed to be from the Board’s decision relating 

to the January 7, 2015 separation, and should correctly be identified as Appeal No. B-15-09-C1920.” Id. In light of Senior Judge Quigley’s Order, it follows that the file for 997 C.D. 2015 

contains the record for 998 C.D. 2015, and the file for 998 C.D. 2015 contains the record for 997 

C.D. 2015. Additionally, the Board’s briefs must be switched as the brief for 997 C.D. 2015 

addresses Claimant’s January 7, 2015 separation and the 998 C.D. 2015 brief addresses 

Claimant’s December 15, 2014 separation. Finally, certain portions of “Claimant’s briefs must

also be switched to ensure that his arguments are consistent with the facts of the applicable 

appeal numbers.” (Board’s 998 C.D. 2015 Br. at 3 n.3.) We will specifically cite to the 

appropriate document by the identifier listed thereon, i.e., “Claimant’s 997 C.D. 2015 Br. at __.”

4

This argument is from Claimant’s 998 C.D. 2015 brief, which addresses the multiple 

hearing notices received regarding this appeal, 997 C.D. 2015, pertaining to the December 15, 

2014 separation.

5

In his brief, Claimant also argues that “[i]t was not clear from the Board’s Opinion 

which title they were referring to” because “section 402 of the Unemployment Compensation 

(Continued...)
3

Claimant was employed by Employer as a part-time security guard from 

October 17, 2014 until he “walked off the job and quit” on December 15, 2014. 

(Board Decision, Appeal No. B-15-09-C-1920, Findings of Fact (FOF) ¶¶ 1-2.) 

Claimant filed a claim for UC benefits, stating that he did not quit his job, but was 

“fired” by Employer because he left his job due to safety concerns. (Claimant 

Questionnaire, January 21, 2015; Claimant Record of Oral Interview, January 27, 

2015.)6 Employer responded that Claimant voluntarily quit his job “with no 

excuse or follow[-]up with [Employer].” (Employer Questionnaire, January 23, 

2015.)

The Indiana UC Service Center (Service Center) issued a Notice of 

Determination finding Claimant eligible for UC benefits beginning with the 

compensable week ending December 27, 2014, pursuant to Section 402(b) of the 

Law. (Notice of Determination, February 2, 2015.) The Service Center 

determined that “Claimant voluntarily quit [due to] safety concerns”; however, 

because “[t]here were no [] alternatives [available] for the Claimant to resolve the 

situation,” Claimant met his burden of proving that he had a necessitous and 

compelling reason for quitting. (Notice of Determination.)

 

Law, 43 P.S. [§] 402, does not exist.” (Claimant’s 997 C.D. 2015 Br. at 8.) However, the 

Section 402(b) the Board relied upon corresponds to 43 P.S. § 802(b).

6 Claimant did not submit a reproduced record with his brief. Rule 556 of the 

Pennsylvania Rules of Appellate Procedure provides that “[a] claimant-appellant in an 

unemployment compensation matter may proceed in forma pauperis without applying for leave 

to do so.” Pa. R.A.P. 556. Rule 2151(b) of the Pennsylvania Rules of Appellate Procedure 

provides that a party proceeding in forma pauperis need not provide a reproduced record. Pa. 

R.A.P. 2151(b). Because the certified record in this case is not organized correctly, see note 3, 

citations to the certified record appear, in the first instance, by reference to the date filed or 

mailed.
4

Employer appealed the Service Center’s Determination and the matter was 

assigned to a UC Referee (Referee) for a hearing to be held on March 6, 2015. 

(Notice of Hearing, February 20, 2015.) After realizing Claimant had another 

hearing scheduled for March 3, 2015, regarding a later separation from Employer,

the Referee notified Claimant, in separate notices, that the March 6, 2015 hearing 

was continued and rescheduled for March 3, 2015. (Notice of Hearing – Other –

Revised, February 23, 2015; Notice of Continuance of Hearing, February 23, 

2015.) At the hearing on March 3, 2015, Employer presented the testimony of one 

witness, the owner of Employer (Owner), before the Referee. (Hr’g Tr. at 1, 

March 3, 2015.) Claimant received the hearing notices, including the revised 

notice scheduling the hearing for March 3, 2015, but did not attend. (FOF ¶ 3.) 

At the hearing, Owner testified that Claimant worked only one half hour on 

December 15, 2014 before walking off the job. (Hr’g Tr. at 7.) Owner further 

testified that Claimant only mentioned that “he had a verbal confrontation with [a]

child,” that he got upset, and “decided he didn’t want to be there anymore . . . and 

left.” (Hr’g Tr. at 9.) Upon review of the evidence, the Referee reversed the 

Service Center’s Determination and found Claimant ineligible for benefits pursuant 

to Section 402(b) of the Law. (Referee Decision at 3, March 3, 2015.) The 

Referee found that Claimant had been properly notified of the hearing, yet he still 

did not attend. (Referee Decision at 2.) The Referee concluded that because “the 

claimant failed to participate in the hearing, there is no competent evidence in the 

record to demonstrate that he was threatened or harmed on December 15, 201[4] or 

at any point thereafter.” (Referee Decision at 3.) Based on Employer’s evidence, 

the Referee found that Claimant was hired as a “fill-in” employee who worked as 
5

needed at the high school and that the record does not support a conclusion that 

Claimant is entitled to benefits under Section 402(b) of the Law. (Referee 

Decision at 3.) 

Claimant filed a timely appeal to the Board. On appeal to the Board, 

Claimant argued that he was confused about when the hearing was held because he 

received four hearing notices listing two different hearing dates. (Claimant’s 

Petition for Appeal from Referee’s Decision, R. Item 12.) Three of the notices

pertained to this appeal regarding his December 15, 2014 separation from 

Employer, and one pertained to the appeal of his later separation from Employer 

on January 7, 2015. In his Petition for Appeal to the Board, Claimant asserted that 

he called the Referee’s office on March 5, 2015 to confirm the hearing date and 

time and was told the hearing was on March 6, 2015 at 9:00 AM. (Claimant’s 

Petition for Appeal from Referee’s Decision, R. Item 12.) Claimant then became 

confused when he showed up for the hearing on March 6, 2015 only to learn that 

the hearing had already taken place on March 3, 2015. Claimant also argued, on 

the merits, that, because he was afraid for his safety, he had a necessitous and 

compelling reason to voluntarily leave his employment. Upon review, the Board 

made the following findings of fact:

1. Pittsburgh Protection Services employed the claimant from 

October 17, 2014 through December 15, 2014, as a part-time 

security guard earning $9.00 per hour.

2. On December 15, 2014, the claimant walked off the job and 

quit.

3. The claimant received notice of the March 3, 2015, hearing in 

this matter.
6

(Board Decision, Appeal No. B-15-09-C-1920, FOF ¶¶ 1-3.) The Board affirmed 

the Referee’s Decision and concluded that “[Claimant’s] negligent reading of the 

[revised hearing] notice [was] not proper cause for his nonappearance at the 

hearing.” (Board Decision, Appeal No. B-15-09-G-0932, at 1.) In its discussion, 

the Board determined that Claimant timely received three hearing notices 

pertaining to this appeal, which “stated, chronologically, (1) the hearing was 

scheduled for March 6, 2015; (2) the March 6, 2015, hearing will be rescheduled; 

and (3) the hearing was rescheduled for March 3, 2015.” (Board Decision, Appeal 

No. B-15-09-G-0932, at 1.) Furthermore, the Board concluded that because “[t]he 

record contain[ed] no firsthand evidence” supporting his claim, Claimant failed to 

meet his burden of proving a necessitous and compelling reason for voluntarily 

leaving his employment as required by Section 402(b) of the Law. (Board 

Decision, Appeal No. B-15-09-G-0932, at 1-2.) Claimant now petitions this Court 

for review.

This Court’s scope of review is limited to determining whether 

constitutional rights were violated, whether an error of law was committed, or 

whether necessary findings of fact were supported by substantial evidence. Johns 

v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. 

Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014). In UC

cases, the Board is the ultimate factfinder and, its findings are conclusive on 

appeal, even if there is conflicting testimony or evidence of a contrary conclusion, 

as long as its findings are supported by substantial evidence. Middletown 

Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 

(Pa. Cmwlth. 2012). “Substantial evidence is such relevant evidence which a 
7

reasonable mind might accept as adequate to support a conclusion.” American 

General Life and Accident Insurance Company v. Unemployment Compensation 

Board of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994). “This Court is bound 

‘to examine the testimony in the light most favorable to the party in whose favor 

the Board has found, giving that party the benefit of all inferences that can 

logically and reasonably be drawn from the testimony’ to determine if substantial 

evidence exists for the Board’s findings.” Morgan v. Unemployment 

Compensation Board of Review, 108 A.3d 181, 185 (Pa. Cmwlth. 2015) (citing 

United States Banknote Co. v. Unemployment Compensation Board of Review, 

575 A.2d 673, 674 (Pa. Cmwlth. 1990)).

On appeal, Claimant argues that he had proper cause for his nonappearance 

because he received four hearing notices and “[e]ach [n]otice had a different 

hearing time and date.” (Claimant’s 998 C.D. 2015 Br. at 10.) Claimant contends 

that the Referee’s office misled him by assuring him over the phone that the 

hearing on his December 15, 2014 separation would be held on March 6, 2015. 

Claimant argues that he missed the March 3, 2015 hearing because the Referee’s 

office gave him the wrong information. Claimant also argues that he had a 

necessitous and compelling reason to quit his job. Claimant contends that he 

should be permitted to prove on appeal that he had a necessitous and compelling 

reason to quit his job because he missed the hearing and “[t]he Referee never got a 

chance to hear things from [his] view.” (Claimant’s 998 C.D. 2015 Br. at 10.) 

We first address Claimant’s assertion that he had proper cause for his 

nonappearance based on his confusion over the hearing notices and should be 
8

given the opportunity to present his evidence before this Court. Pursuant to the 

Department of Labor and Industry’s (Department) Regulations, the Board may 

remand a matter for the presentation of additional evidence if a claimant who did 

not attend a scheduled hearing subsequently gives timely written notice to the 

Board and the Board determines that the claimant had “proper cause” for not 

attending. 34 Pa. Code § 101.24(a), (c).

7

“We have held that not receiving or not 

timely receiving a hearing notice can constitute ‘proper cause’ for reopening a 

hearing.” Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 40 

(Pa. Cmwlth. 2012). However, we have also held that “a party’s own negligence 

is not sufficient ‘good cause’ as a matter of law for failing to appear at a Referee’s 

hearing.” Eat’n Park Hospitality Group, Inc. v. Unemployment Compensation 

Board of Review, 970 A.2d 492, 494 (Pa. Cmwlth. 2008); Savage v. 

Unemployment Compensation Board of Review, 491 A.2d 947, 950-51 (Pa. 

Cmwlth. 1985) (stating that “[c]laimant’s own negligence [in misreading the 

timely received hearing notice] was the sole cause of his not appearing at . . . the 

referee’s hearing” and that “[his] own negligence is insufficient ‘proper cause,’ as 

 

7

The request to reopen the hearing must be made expeditiously. According to Section 

101.24(c) of the Department’s Regulations:

A request for reopening the hearing which is not received before the decision was 

mailed, but is received or postmarked on or before the 15th day after the decision 

of the referee was mailed to the parties shall constitute a request for further appeal 

to the Board and a reopening of the hearing, and the Board will rule upon the 

request.

34 Pa. Code § 101.24(c). The Referee’s decision was mailed to Claimant on March 3, 2015. 

Claimant’s Petition for Appeal, containing a request to reopen the hearing was received by the 

Department on March 12, 2015, well within the fifteen day time period.
9

a matter of law, to justify his failure to appear at a referee’s hearing and warrant a 

new hearing.”). 

Here, Claimant received notice that the hearing on his appeal based on his

December 15, 2014 separation was rescheduled to March 3, 2015. Although 

Claimant states that he was misled about the hearing date because the Referee’s 

office confirmed the March 6th hearing date, he admitted in his appeal to the Board 

that he did not call the Referee’s office until March 5, 2015 to see if the hearing 

was still scheduled for March 6, 2015. (Claimant’s Petition for Appeal from 

Referee’s Decision, R. Item 12.) Even if the Referee’s office was incorrect about 

the hearing date when Claimant called, he did not call until after the earlier hearing

date due to his negligent misreading of the hearing notices and his failure to seek 

clarification prior to March 3, 2015, the earlier of the two hearing dates. 

Accordingly, we conclude that Claimant lacked proper cause for failing to appear 

at the March 3, 2015 hearing.

Since Claimant voluntarily left his employment,8it was his burden to show 

that he had cause of a necessitous and compelling nature to do so. Latzy v. 

Unemployment Compensation Board of Review, 487 A.2d 121, 122 (Pa. Cmwlth. 

 

8 Claimant contends that he was “fired” by Employer on account of Employer’s statement 

that “if you leave to go home, then you are done.” (Claimant’s 997 C.D. 2015 Br. at 9-10.) 

Where an employer gives an employee the option of staying or leaving, and the employee leaves, 

it is considered a voluntary quit. Stugart v. Unemployment Compensation Board of Review, 85 

A.3d 606, 613 (Pa. Cmwlth. 2014). Here, Claimant was given the choice to either stay at the 

high school to finish the remainder of his shift, or to leave and be done with his employment. 

Claimant chose not to finish the remainder of his shift and to leave his job, therefore, he 

voluntarily quit.
10

1985). To satisfy this burden, Claimant must demonstrate that: “(1) circumstances 

existed which produced real and substantial pressure to terminate employment; (2) 

such 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.” Brunswick Hotel & Conference 

Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 

660 (Pa. Cmwlth. 2006). “Mere dissatisfaction with one’s working conditions 

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

one’s employment.” Id.

Where evidence supporting a party’s position is not offered before the 

referee at the referee hearing, nor otherwise made a part of the certified record, the 

evidence cannot be considered by this Court on appeal. Rothstein v. 

Unemployment Compensation Board of Review, 114 A.3d 6, 10 (Pa. Cmwlth. 

2015). Because there is no evidence in the record to support Claimant’s contention 

that he had necessitous and compelling reasons to leave his employment, Claimant 

did not satisfy his burden. 

For the foregoing reasons, the Board’s Order is affirmed.

________________________________

 RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert E. Michael, :

:

Petitioner :

:

v. : No. 997 C.D. 2015

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

NOW, March 9, 2016, the Order of the Unemployment Compensation 

Board of Review relating to Appeal No. 997 C.D. 2015 addressing Robert E. 

Michael’s December 15, 2014 separation from employment, is hereby 

AFFIRMED.

________________________________

 RENÉE COHN JUBELIRER, Judge