IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laurie A. McLean, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 429 C.D. 2019

Respondent : Argued: November 14, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: December 13, 2019

Laurie A. McLean (Claimant) petitions for review of the March 15, 

2019 order of the Unemployment Compensation Board of Review (Board) affirming 

the decision of the referee to deny Claimant unemployment compensation benefits 

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

which provides that a claimant shall be ineligible for benefits for any week in which 

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

and compelling nature. Upon review, we affirm.

Claimant was employed full time as a reading specialist with Upper 

Darby School District (Employer) from September 2000 to February 2018. 

 

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

802(b). 
2

Referee’s Decision & Order at 1, Finding of Fact (F.F.) 1, Certified Record (C.R.) 

at 74.

2

 Claimant worked in elementary schools until Employer transferred her to the 

high school in June 2017. See Internet Initial Claims at 4, C.R. at 13. On February 

2, 2018, Claimant sustained an injury at work during a physical altercation amongst 

a group of students in her classroom. F.F. 2. After leaving work following the 

February 2018 incident, Claimant’s doctor cleared her to return to part-time “light 

duty work” that same month. Transcript of Testimony (T.T.), 1/10/19 at 10 & 13, 

C.R. at 60 & 63. Claimant had health and safety concerns upon her return to work, 

but did not inform Employer of these concerns. F.F. 5 & 6. A second incident 

occurred shortly after Claimant returned, but it was not as severe and Claimant 

continued working. T.T. at 12-13, C.R. at 62-63. Employer then informed Claimant 

it could no longer accommodate her part-time schedule. T.T. at 12, C.R. at 62. 

Claimant again left work and received workers’ compensation until August 2018, 

when her doctor released her to return to work without restrictions. F.F. 3 & 4; see 

also T.T. at 13, C.R. at 64. Claimant submitted a notice of resignation to Employer 

on August 16, 2018. F.F. 7. Claimant resigned her position due to health and safety 

concerns. F.F. 8. 

Claimant thereafter applied for benefits. Internet Initial Claims at 2, 

C.R. at 11. Claimant noted that she had taken a leave of absence and was receiving 

workers’ compensation benefits after she was assaulted in a “violent mob fight in 

the workplace” during which she sustained physical injuries, and that she was 

suffering from post-traumatic stress disorder (PTSD) and anxiety and was under a 

doctor’s care. Internet Initial Claims at 3-4, C.R. at 12-13. Claimant contended that 

she was unable to work due to anxiety and PTSD stemming from an unsafe 

 

2 Our citations to the Certified Record reference the page numbers of the PDF document, 

as the record is not paginated.
3

workplace, and that she was not supported by administration. Internet Initial Claims 

at 3, C.R. at 12. 

The Unemployment Compensation (UC) Service Center deemed 

Claimant ineligible for benefits, finding that she voluntarily quit for personal 

reasons, and Claimant appealed. Notice of Determination at 1, C.R. at 33; Petition 

for Appeal, 12/14/18, C.R. at 37. A referee held a hearing, in which Claimant and 

Employer’s assistant superintendent participated. T.T. at 1-2, C.R. at 50-51. The 

referee affirmed the UC Service Center’s denial of benefits, determining that 

Claimant voluntarily left employment due to health and safety concerns, that 

Claimant failed to present competent evidence that health or safety reasons existed 

to prevent her return to work and that Claimant failed to inform Employer of her 

health or safety concerns prior to resigning. Referee’s Decision at 2-3, C.R. at 74-

75. 

Claimant appealed, and the Board affirmed, adopting the referee’s 

findings of fact and conclusions of law. Board’s Decision & Order at 1-2, C.R. at 

101-02. The Board found that Claimant failed to inform Employer of the reason for 

her resignation, noting that Claimant admitted in her brief that she had left blank the 

portion of the resignation form inquiring as to the reason for leaving employment. 

Board’s Opinion and Order at 1, C.R. at 101. Thus, the Board concluded that 

Claimant did not act with ordinary common sense in trying to keep her job. Board’s 

Opinion and Order at 1, C.R. at 101. Claimant then petitioned this Court for review.

Before this Court,3 Claimant argues that she had necessitous and 

compelling cause to quit her employment and, therefore, requests that this Court 

 

3 This Court’s review is limited to a determination of whether substantial evidence 

supported necessary findings of fact, whether errors of law were committed or whether 
4

reverse the Board’s order. Claimant’s Brief at 18-19. Claimant contends that 

working conditions that subject a claimant to safety hazards can constitute 

necessitous and compelling cause to quit employment. Id. at 14 (citing Green Tree 

Sch. v. Unemployment Comp. Bd. of Review, 982 A.2d 573, 577 (Pa. Cmwlth. 

2009)). Further, Claimant asserts that an employer’s refusal to address an 

objectively legitimate safety concern brought to its attention by a claimant provides 

necessitous and compelling cause to quit. Id. (citing Fitzgerald v. Unemployment 

Comp. Bd. of Review, 714 A.2d 1126, 1128-30 (Pa. Cmwlth. 1998)). Claimant 

maintains that Employer “completely ignor[ed]” and failed to mention the “written 

safety concern and suggestion” she made in the written workers’ compensation 

report.4 Id. at 17-18. Claimant asserts that “[E]mployer must be charged with 

knowledge of [C]laimant’s legitimate safety concerns,” and maintains that “[t]he 

fact is, . . . [Employer] simply did not care about those concerns.” Id. at 17. Claimant 

also asserts she acted reasonably under the circumstances to preserve her

employment. Id. at 14. 

A claimant who voluntarily terminates employment has the burden of 

proving that a necessitous and compelling cause existed. Solar Innovations, Inc. v. 

Unemployment Comp. Bd. of Review, 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012); see

43 P.S. § 802(b). Employees who claim to have left their employ for a necessitous 

and compelling reason must prove:

 

constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 

1009 n.2 (Pa. Cmwlth. 2014).

4 Claimant indicates that her safety concern was “violent mob formation in the hallways of 

[the high school].” Claimant’s Brief at 16. However, Claimant does not specify what her 

suggestion was, but she is presumably referring to her recommendation in the work-related 

incident report that Employer provide security in hallways of the high school, as Claimant 

mentioned in the factual summary of her brief. See id. at 7; see also infra discussion pp. 6-7.
5

(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 her employment.

Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 

906 A.2d 657, 660 (Pa. Cmwlth. 2006). “Whether a claimant had cause of a 

necessitous and compelling nature to quit a job is a conclusion of law subject to 

review by this Court.” Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d 

594, 596 (Pa. Cmwlth. 1997).

Claimant correctly notes that an unsafe work environment may provide

a necessitous and compelling reason to resign. See Claimant’s Brief at 14 (citing 

Green Tree Sch., 982 A.2d at 577). However, in order to demonstrate necessitous 

and compelling cause, an employee bears the burden to establish that she took all 

necessary and reasonable steps to preserve the employment relationship. Peco 

Energy Co. v. Unemployment Comp. Bd. of Review, 682 A.2d 58, 61 (Pa. Cmwlth. 

1996). A claimant is not eligible for benefits absent evidence that she “explored 

other options less drastic than quitting [her] job[.]” Draper v. Unemployment Comp. 

Bd. of Review, 718 A.2d 383, 385–86 (Pa. Cmwlth. 1998). Thus, “even where there 

is a real and serious safety concern, the claimant must make a reasonable attempt to 

seek protection from the danger before resigning from her job.” Scavillo v. 

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2723 C.D. 2015, filed Sept. 

29, 2016), slip op. at 85(citing Dep’t of Corr. v. Unemployment Comp. Bd. of Review, 

547 A.2d 470, 474 (Pa. Cmwlth. 1988); Iaconelli v. Unemployment Comp. Bd. of 

 

5 This Court’s unreported memorandum opinions may be cited for persuasive value. 

Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
6

Review, 423 A.2d 754, 756 (Pa. Cmwlth. 1980); Mackanic v. Unemployment Comp. 

Bd. of Review, 390 A.2d 884, 886 (Pa. Cmwlth. 1978)). 

We note that on February 2, 2018, Claimant completed the section of 

Employer’s work-related incident report regarding how the incident could have been 

prevented, stating that “[s]tudents could have complied and left the room when told, 

security could have been quicker, halls could be monitored so mobs are prevented,” 

and “[s]ecurity should be in hallways between classes[.]” Work Related Incident 

Report at 1-2, C.R. at 69-70. However, the Board found that “[C]laimant did not 

inform . . . [E]mployer of her concerns” and, despite asserting that Employer should 

be charged with knowledge of her safety concerns, Claimant does not argue that this 

finding lacks substantial evidentiary support. F.F. 6; Board’s Decision & Order at 

1, C.R. at 101; see also Claimant’s Brief at 17. Therefore, this finding is conclusive 

on appeal. See Gibson v. Unemployment Comp. Bd. of Review, 760 A.2d 492, 494 

(Pa. Cmwlth. 2000) (stating that if a petitioner fails to challenge the factual findings, 

they are conclusive on appeal). 

Nevertheless, as noted above, Claimant contends that “[E]mployer 

must be charged with knowledge of [C]laimant’s legitimate safety concerns.” 

Claimant’s Brief at 17. Claimant maintains that Employer “simply did not care 

about [these] concerns” and “chose to do nothing about” them. Id. at 17-18. 

However, in attempting to shift the onus to Employer, Claimant evidently fails to 

appreciate that she bears the burden of proving that she made a reasonable effort to 

preserve her employment. See Brunswick Hotel & Conference Ctr., LLC, 906 A.2d 

at 660.

When Claimant submitted her resignation form to Employer, 

approximately six-and-a-half months after completing the incident report, Claimant 
7

omitted the reason for her resignation. Board’s Decision at 1, C.R. at 101. 

Additionally, Claimant did not tell the secretary to Employer’s assistant 

superintendent that she did not feel safe returning to work until after she submitted 

her resignation. Id. We note that even communicating these concerns at the time of 

resignation would not have provided Employer the requisite notice. See Blackwell

v. Unemployment Comp. Bd. of Review, 555 A.2d 279, 281-82 (Pa. Cmwlth. 1989)

(stating that informing an employer of an issue at the time of resignation does not 

satisfy a claimant’s burden to provide the requisite notice). Claimant testified that 

Employer sent the e-mail accepting her resignation later that same day. See T.T. at 

14-15, C.R. at 64-65. “It is well established that prior to terminating employment 

the claimant must establish that [s]he has made a reasonable effort to advise the 

employer of the problem or has otherwise made a reasonable effort to preserve [her] 

employment.” Iaconelli, 423 A.2d at 756 (emphasis added).6 We therefore conclude 

that Claimant failed to demonstrate that she made a reasonable effort to preserve her 

employment. See Brunswick Hotel & Conference Ctr., LLC, 906 A.2d at 660. Thus, 

the Board did not err in concluding that Claimant was unable to establish that she 

had necessitous and compelling cause to quit. See id.

Accordingly, we affirm.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

6 Because a claimant must demonstrate all four elements in order to establish necessitous 

and compelling cause to quit, it is evident that Claimant cannot prevail. See Brunswick Hotel & 

Conference Ctr., LLC, 906 A.2d at 660. We therefore decline to address the remaining Brunswick

factors.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laurie A. McLean, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 429 C.D. 2019

Respondent :

O R D E R

AND NOW, this 13th day of December, 2019, the March 15, 2019 

order of the Unemployment Compensation Board of Review is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge