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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald J. McKenna,
:

Petitioner

:

:

v.

: No. 1409 C.D. 2004

: Submitted: November 19, 2004
Unemployment Compensation Board of :
Review,

:

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: February 2, 2005

Claimant, Gerald J. McKenna, appeals pro se from an order of the
Unemployment Compensation Board of Review (Board) that denied Claimant
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides in pertinent
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 was employed by Philadelphia Honda (Employer) as a full-
time lead technician from August 1995 until he was separated from employment
on November 24, 2003. The Bureau of UC Benefits and Allowances denied
Claimant's application for unemployment benefits, determining that he left his
employment without a necessitous and compelling reason. After a hearing held on

appeal, at which Claimant and Employer's general manager and service director
testified, the referee affirmed the Bureau's determination and denied Claimant
benefits under Section 402(b) of the Law.

Accepting the testimony of Employer's witnesses and rejecting
Claimant's conflicting testimony, the Board found the following circumstances
leading to Claimant's separation from employment. On August 4, 2003, Employer
demoted Claimant from the lead technician position to a technician position for his
habitual tardiness despite previous warnings. As a result, Claimant's wages were
reduced from $19.50 to $17.50 an hour.1 On August 6, 2003, Claimant requested a
twelve-week medical leave under the Family and Medical Leave Act, 29 U.S.C.
§§2601 - 2654, which Employer approved. When Claimant did not return to work
at the expiration of the leave on November 11, 2003, Employer sent Claimant a
letter on November 17, 2003 extending the leave to November 24, 2003 and
directing him to return to work by that date with a doctor's note. Claimant,
however, did not return to work on November 24, 2003.

While admitting that the technician position was available to him on
November 24, 2003, Claimant testified that he decided not to return to work
because of the demotion which resulted in a pay cut and loss of bonuses.
Disputing the testimony of Employer's witnesses, Claimant further testified that he
was demoted after he requested the medical leave and that Employer demoted him
because of that request. Claimant asserted that Employer failed to properly handle
employees' requests for leaves of absence, failed to allow him to seek medical

1The Board found that Claimant earned $19 an hour while working as the lead technician.
However, the pay slips admitted into evidence support Claimant's testimony that he was paid
$19.50 an hour before the demotion.
2

treatment and demoted him in retaliation for having filed a discrimination
complaint with the Pennsylvania Human Relations Commission. He later
conceded that the complaint was filed after he quit the job. The Board found that
Claimant terminated his employment because he was demoted and dissatisfied
with the working conditions. Concluding that Claimant failed to establish a
necessitous and compelling reason for terminating his employment, the Board
affirmed the referee's denial of benefits.2

To become eligible for benefits under Section 402(b) of the Law, a
claimant must prove that his or her separation from employment was for a
necessitous and compelling reason. The claimant must establish circumstances
which produced real and substantial pressure to terminate employment, such as
would compel a reasonable person to act in the same manner. Empire Intimates v.
Unemployment Compensation Board of Review, 655 A.2d 662 (Pa. Cmwlth. 1995).
Also the claimant must show that he or she acted with ordinary common sense by
making a reasonable effort to preserve the employment but had no real choice
other than to quit. Carter v. Unemployment Compensation Board of Review, 629
A.2d 212 (Pa. Cmwlth. 1993). Whether a separation was for a necessitous and
compelling reason is a legal question which is subject to appellate review. Eby v.
Unemployment Compensation Board of Review, 629 A.2d 176 (Pa. Cmwlth. 1993).

2This Court's review is limited to determining whether the Board's adjudication is in
violation of constitutional rights, whether an error of law was committed or whether all
necessary factual findings are supported by substantial evidence in the record as a whole.
Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d
124 (Pa. Cmwlth. 1994). In reviewing the Board's decision, this Court must examine the
evidence 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 evidence.
Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
3

Where, as here, the claimant terminated employment following a
demotion, the focus of the Court's inquiry is on whether the employer was justified
in its demotion of the claimant. Allegheny Valley School v. Pennsylvania
Unemployment Compensation Board of Review, 548 Pa. 355, 697 A.2d 243 (1997).
If the claimant refused to accept the justified demotion and terminated
employment, the claimant is ineligible for benefits under Section 402(b) of the
Law. Id. In such case, it is unnecessary to further determine whether changes in
working conditions alleged by the claimant are reasonably related to the justified
reasons for the demotion. Id.

In this matter, the Board accepted the testimony of Employer's
witnesses and found that Employer demoted Claimant due to his habitual tardiness.
Claimant presented no evidence to dispute Employer's reason for the demotion, nor
did Claimant establish good cause for his tardiness. The Board rejected as not
credible Claimant's assertion that he was demoted because of his medical leave
request and because of his discrimination charges against Employer. As the
ultimate factfinder, the Board is empowered to make credibility determinations,
and in making those determinations the Board may accept or reject the testimony
of any witness in whole or in part.3 See Peak v. Unemployment Compensation
Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Greif v. Unemployment

3Claimant states: "Employer back dated the hourly pay scale to make it look like it
occurred before the medical leave...." Claimant's Brief, p. 4. In so stating, Claimant improperly
challenges the credibility determination of the Board rejecting his testimony that he was demoted
after he requested the medical leave. Claimant also attached to his brief his attorney's letter sent
to Employer seeking settlement of his potential discrimination claim against Employer and the
proposed settlement agreement. However, those documents were not presented at the hearing
and are not contained in the record certified to this Court. It is well established that any facts
which are not in the certified record may not be considered on appeal. Givnish v. State Board of
Funeral Directors, 578 A.2d 545 (Pa. Cmwlth. 1990).
4

Compensation Board of Review, 450 A.2d 229 (Pa. Cmwlth. 1982). Since the
Board's finding regarding the reason for Claimant's demotion was based on the
Board's credibility determinations, that finding is conclusive and may not be
disturbed on appeal.

Because Claimant admittedly refused to accept the justified demotion,
he failed to establish a necessitous and compelling reason for terminating his
employment. Consequently, it is unnecessary to further consider Claimant's
allegations that Employer refused to allow him to seek medical treatment and that
he was dissatisfied with Employer's handling of the employees' requests for leave.4
Allegheny Valley School. Moreover, Claimant failed to present any evidence
demonstrating that he made a reasonable effort to preserve his employment. Since
the record supports the Board's conclusion that Claimant failed to establish a
necessitous and compelling reason for terminating his employment, he is ineligible
for benefits under Section 402(b) of the Law. Accordingly, the order of the Board
is affirmed.

DORIS A. SMITH-RIBNER, Judge

4Suffice it to say that the Board did not find Claimant's allegations credible and that the
mere dissatisfaction with working conditions does not support a claim of a necessitous and
compelling reason for terminating employment. Magazzeni v. Unemployment Compensation
Board of Review, 462 A.2d 961 (Pa. Cmwlth. 1983).
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald J. McKenna,
:

Petitioner

:

:

v.

: No. 1409 C.D. 2004

:
Unemployment Compensation Board of :
Review,

:

Respondent

:

O R D E R

AND NOW, this 2nd day of February, 2005, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.

DORIS A. SMITH-RIBNER, Judge

Document Outline