IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tiffany J. Cunningham, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1090 C.D. 2019

Respondent : Submitted: December 13, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: February 4, 2020

Tiffany J. Cunningham (Claimant) petitions this Court pro se for review 

of the Unemployment Compensation (UC) Board of Review’s (UCBR) July 25, 2019 

order affirming the Referee’s decision denying Claimant UC benefits under Section 

402(b) of the UC Law (Law).1 Claimant presents three issues for this Court’s review: 

(1) whether Claimant voluntarily quit her employment; (2) whether the Referee 

properly excluded Claimant’s hearsay evidence; and (3) whether Lifestyle Support 

Services, Inc. (Employer) committed unfair work practices because Claimant was 

alone with three supervisors when she was fired.2 After review, we affirm. 

Claimant worked as a part-time day program aide for Employer from

December 18, 2017 through April 16, 2019, working 30 hours per week and earning 

 

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

802(b) (relating to voluntarily leaving work without cause of a necessitous and compelling nature).

2 Claimant includes the additional issue of whether she committed willful misconduct 

because she had good cause for missing work. See Claimant Br. at 6. However, because Claimant

was not discharged from her employment, as discussed fully below, that issue is not before this 

Court. 
2

$13 per hour. Prior to April 16, 2019, Claimant had been excessively absent from 

work. On March 29, 2019, Employer placed Claimant on an employee improvement 

plan regarding her attendance. Claimant continued to be absent from work after 

being placed on the employee improvement plan for attendance. Claimant’s position 

as a day program aide does not afford Employer an opportunity to find replacement 

staff members when Claimant is absent from work. Claimant’s frequent absences

had a negative impact upon the day program and prevented Employer from offering

certain programs to its clients because Employer was short-staffed.

On April 16, 2019, Employer met with Claimant to discuss her ongoing 

attendance issues and to offer Claimant work in Employer’s group homes which 

would provide more flexibility for Claimant in scheduling her hours and allow 

Employer to provide coverage for any absences Claimant may continue to incur. The 

group home position offered the same number of hours and pay rate she received in 

the day program. Additionally, Claimant could continue to work her day shift 

schedule, typically from 9:00 a.m. to 3:00 p.m. During the meeting, Claimant refused 

to accept work in Employer’s group home, as she believed she would have to work 

nights and weekends, which she was unable to do because of childcare issues. 

Employer did not inform Claimant that she would need to work nights and weekends 

and met with her again prior to the end of her workday on April 16, 2019, hoping that 

she would reconsider its offer. Claimant again refused to work in the group home 

setting and informed Employer that she would not accept work other than in the day 

program. Pursuant to Employer’s handbook, Employer asked Claimant to sign a 

resignation notice giving her two-weeks’ notice. Claimant refused to do so. 

Claimant applied for UC benefits. On May 8, 2019, the Altoona UC 

Service Center determined that Claimant was not eligible for UC benefits under 

Section 402(b) of the Law. Claimant appealed and a Referee held a hearing. On June 

7, 2019, the Referee affirmed the UC Service Center’s determination. Claimant 
3

appealed to the UCBR. On July 25, 2019, the UCBR affirmed the Referee’s decision. 

Claimant appealed to this Court.3, 4

Claimant first argues that she did not voluntarily quit but, rather, she was 

wrongfully discharged.

Initially, 

[w]hether a claimant’s separation from employment is the 

result of a voluntary action or a discharge is a question of 

law subject to review by this Court and must be determined

from a totality of the facts surrounding the cessation of 

employment. A claimant seeking [UC] benefits bears the 

burden of establishing either that (1) h[er] separation from 

employment was involuntary or (2) h[er] separation was 

voluntary but [s]he had cause of a necessitous or 

compelling nature that led h[er] to discontinue the 

relationship. In other words, in order to be eligible for [UC] 

[benefits], the claimant bears the burden of proving 

separation from employment, whether voluntary or 

involuntary.

Greenray Indus. v. Unemployment Comp. Bd. of Review, 135 A.3d 1147, 1149-50 

(Pa. Cmwlth. 2016) (quoting Watkins v. Unemployment Comp. Bd. of Review, 65 

A.3d 999, 1004 (Pa. Cmwlth. 2013) (citations and footnote omitted)).

Further, 

[i]t is well-established law that ‘[a]n express resignation is 

not necessary to constitute a voluntary termination; conduct 

which is tantamount to a voluntary termination of 

 

3

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

violated, whether an error of law was committed, or whether the findings of fact were unsupported 

by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa. 

Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Review, 197 A.3d 842, 843 n.4 (Pa. 

Cmwlth. 2018).

4 On December 11, 2019, Claimant filed an Application to Compel [(Application)] 

consisting of the following: “I [Claimant] [w]ould like to make a[n] Application to Compel[] [d]ue 

to not [r]ec[ei]ving [the UCBR’]s Br[ie]f Statement. Commonwealth [C]ourt noted that it was 

submitted el[]ectronic[al]ly November 20th 2019.” Application at 2. Because the UCBR’s brief 

contains a certificate of service stating its brief was mailed to Claimant’s record address, the 

Application is denied.
4

employment is sufficient.’ Shrum v. Unemployment Comp. 

Bd. of Review, 690 A.2d 796, 799-800 (Pa. Cmwlth. 1997) 

(quoting Sears, Roebuck & Co. v. Unemployment Comp. 

Bd. of Review, . . . 394 A.2d 1329, 1332 ([Pa. Cmwlth.] 

1978)). This Court has held that ‘[c]laimants who, while 

employed, refuse to accept an offer of continued

employment are deemed to have quit their position, and 

are thus subject to Section 402(b) of the [Law], which 

denies compensation to a claimant who ‘voluntarily [leaves] 

work without cause of a necessitous and compelling 

nature.’’ Middletown Twp. v. Unemployment Comp. Bd. of 

Review, 40 A.3d 217, 225 (Pa. Cmwlth. 2012) (quoting 

Hosp. Serv. Ass’n of Ne. Pa. v. Unemployment Comp. Bd. of 

Review, . . . 476 A.2d 516, 518 ([Pa. Cmwlth.] 1984)). 

Greenray Indus., 135 A.3d at 1150 (bold emphasis added).

Here, because of Claimant’s excessive absenteeism, Employer offered 

Claimant continued employment in its group home program. Claimant refused the 

offer because she believed working in the group home program would require her to 

work nights and weekends. Specifically, Claimant testified, in relevant part:

I showed up to work on April 16th, 2019. A typical day. I 

had given [Employer] my medical notice that I had got [sic] 

from the doctor to come back to work. . . . As soon as I 

came in [Employer’s Day Program Manager] [] Terry Kuhn 

[(Kuhn)] had a whole bunch of papers for me to fill out. 

Documents for consumers. Approximately around I think it 

was 1:30 p.m. I was asked to go upstairs. I was pulled into 

the office into a conference room and it was [] Kuhn, 

[Employer’s Program Director] Vikki Nelson [Nelson] and

[Employer’s Executive Program Director] Mike Cappella

were [sic] all in there. They had told me that my missing 

attendance did not work for a day program because 

they need consistency which I totally agree with because 

the consumers do need consistency. But I had given plenty 

of medical notices. We were all understanding of what was

going on and actually I had called and talked to [Kuhn] on 

the phone whenever I was off. I think I was off about five 

days give or take and he -- . . . . So at that point they had all 

told me that I wouldn’t work for day program and they 

wanted to offer me a position in group homes. I said I 

could not take that because they want me to work nights 
5

and weekends. . . . That is the reason why I declined group 

homes. Because I declined group homes they then told me 

that I would not work for day program and was fired. . . .

Certified Record (C.R.) Item 9, Notes of Testimony, June 5, 2019 (N.T.) at 6-7

(emphasis added). Claimant continued: 

I can’t take group homes because of the kids. When I was 

originally hired and it says on this paper I was hired for day 

programming. That’s what I was hired for. That was the 

availability that I gave them and in my opinion and this is 

just my opinion if you can’t no longer offer me a job that I 

was originally assigned that shows right there that I was 

fired.

N.T. at 7.

However, Nelson related:

[Q] [] Nelson[,] did [Claimant] voluntarily resign her

employment with [Employer]?

[A] Yes.

[Q] [] Nelson[,] do you recall the date when [Claimant] 

voluntarily resigned or resigned from [Employer]?

[A] 4/16/19.

[Q] On that date was there any attempt whatsoever to 

terminate [Claimant’s employment]?

[A] No. There was absolutely no intent to terminate her

[employment].

[Q] You said that there was -- well what was the purpose of

meeting with [Claimant] on 4/16/19?

[A] To discuss her absenteeism and also to offer her 

employment in the group home to open up availability that 

she could actually get in her 30 hours per week.

[Q] Was it your belief that she would accept that 

agreement? That alternative?
6

[A] Yes[,] that was the purpose. The first meeting was for 

that purpose so we expected that she would do that because 

we’ve done this in the past. Other people have accepted. 

She did not. That’s why we ended up having that second 

meeting just because I had to consult with [Employer’s 

attorney Devin] Bennati.

[Q] So there was [sic] two meetings that day?

[A] There were two meetings that day. Yes.

[Q] What was discussed at the second meeting later that 

day?

[A] The second meeting we had hoped that after she 

processed it and had a few minutes to calm down that she 

would reconsider and take the employment in the homes to 

-- and then she was also -- she was asked if she wanted to 

write a resignation letter not to say hey I quit today. That 

was in our handbook you’ll see that it’s a two[-]week 

notice. We do a resignation letter is generally a two[-] 

week notice so we offered her to write that resignation 

letter. And again like I said we asked if she would 

reconsider working in the group homes because it would 

open up so much -- so many different times for her. Other 

people from the day program who transferred over have 

still worked a 9 to 3 position so we never gave her a time 

that she had to work. It was just extra hours that she could 

have.

N.T. at 12-13 (emphasis added).

The law is well established that “‘[i]n [UC] proceedings, the [UCBR] is 

the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence 

and to determine the credibility of witnesses.’ Procito v. Unemployment Comp. Bd. 

of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008).” Umedman v. Unemployment 

Comp. Bd. of Review, 52 A.3d 558, 562 (Pa. Cmwlth. 2012). Here, 

[w]hile [] [C]laimant testified at the time of hearing that she 

was told by [] [E]mployer that she would have to work 

nights and weekends and could not do so due to childcare 

constraints, the Referee credit[ed] [] [E]mployer’s 

testimony that the position offered to [] [C]laimant did 
7

not require nights and weekends and that [] [C]laimant 

would be able to continue to work the same schedule and 

would be offered more flexibility with the work in the 

group home setting and would also benefit [] [E]mployer by 

allowing [it] to be able to provide coverage for any of the 

absences [] [C]laimant may continue to incur.

Referee Dec. at 3 (emphasis added). “[T]he [UCBR] adopt[ed] and incorporate[d] 

the Referee’s findings and conclusions[.]” UCBR Dec. at 1. 

The record evidence establishes: (1) Claimant was working at the time 

Employer offered her work in its group homes; (2) Claimant knew that she would 

lose her job if she refused to work in group homes; and, (3) Claimant refused to work 

in group homes. Because Claimant refused to accept an offer of continued 

employment while employed, she is deemed to have quit her position. Greenway 

Indus. Thus, Claimant engaged in conduct that was tantamount to a voluntary 

termination. Id. Accordingly, the UCBR properly concluded that Claimant 

voluntarily quit her job.

Having ruled that Claimant voluntarily resigned from her employment, 

we must next determine whether she had a necessitous and compelling reason for 

doing so.

Whether a claimant had cause of a necessitous and 

compelling nature for leaving work is a question of law 

subject to this Court’s review. A claimant who voluntarily 

quits h[er] employment bears the burden of proving that 

necessitous and compelling reasons motivated that decision. 

In order to establish cause of a necessitous and compelling 

nature, a claimant must establish that (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 [her] 

employment.
8

Greenray Indus., 135 A.3d at 1151 (quoting Middletown Twp., 40 A.3d at 227–28

(citations omitted)). 

Here, Claimant testified that she refused to work in the group homes 

because she could not work nights and weekends. However, the UCBR found 

Employer’s testimony credible that Claimant would not be required to work nights 

and weekends in the group homes. Thus, Claimant did not meet her burden of 

proving that her concern over working nights and weekends was real and substantial 

pressure that would cause a reasonable person to terminate her employment. Because 

a person with ordinary common sense would not refuse the alternative job offer, 

Claimant did not prove that she made a reasonable effort to preserve her employment. 

Thus, Claimant did not have a necessitous and compelling reason to terminate her 

employment. Greenray Indus. Accordingly, the UCBR properly denied Claimant 

UC benefits under Section 402(b) of the Law.

Claimant next asserts that the Referee improperly excluded an 

anonymous witness statement from evidence, and that Employer committed an unfair 

work practice because Claimant was alone with three supervisors during the April 16, 

2019 meetings. However, although Claimant raised both of these issues in her 

“Statement of Questions Involved,” Claimant Br. at 6, she did not mention either 

issue in the “Summary of Argument,” Claimant Br. at 8, or the “Argument of 

Petitioner” in her brief. Claimant Br. at 9-10. It is axiomatic that “[w]hen a party 

appeals, but fails to address an issue in the brief, the issue is waived.” HPM 

Consulting v. Unemployment Comp. Bd. of Review, 185 A.3d 1190, 1196 (Pa. 

Cmwlth. 2018) (quoting Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 

608, 611 (Pa. Cmwlth. 2006)). Accordingly, these issues are not properly before the 

Court. 
9

For all of the above reasons, the UCBR’s order is affirmed. 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tiffany J. Cunningham, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1090 C.D. 2019

Respondent :

O R D E R

AND NOW, this 4

th day of February, 2020, the Unemployment 

Compensation Board of Review’s July 25, 2019 order is AFFIRMED. Tiffany 

Cunningham’s Application to Compel is DENIED. 

___________________________

ANNE E. COVEY, Judge