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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard M. Levulis,
:

Petitioner

:

:

v.

: No. 1432 C.D. 2004

:
Unemployment Compensation
: Submitted: November 12, 2004
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 SENIOR JUDGE JIULIANTE

FILED: February 1, 2005

Richard M. Levulis (Claimant) petitions for review of the June 7,
2004 order of the Unemployment Compensation Board of Review (Board) that
affirmed the decision of the referee denying Claimant's request for unemployment
compensation benefits under Section 402(b) of the Unemployment Compensation
Law (Law).1 We affirm.

The referee made the following findings of fact:2 Claimant was
employed with Service Group, Inc. (Employer) as a street cleaner in Wilkes-Barre

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b). Pursuant to this section, an employee is ineligible for benefits for any week in which his
unemployment is due to his voluntarily leaving work without cause of a necessitous and
compelling nature.
2 In unemployment compensation matters, the Board is the ultimate fact finder and is
empowered to resolve conflicts in the evidence and to determine witness credibility. Kelly v.
(Footnote continued on next page...)

from July 22, 2003 until November 10, 2003. His final rate of pay was $7.50 per
hour.

On November 5, 2003, Claimant went to the hospital before
completing his shift for treatment of a prior injury to his right arm. Employer gave
Claimant permission to go to the hospital on that date.

On November 6 and 7, 2003, Claimant was again absent from work
due to his injury but was unable to notify Employer of his absence. On November
10, 2003, Claimant returned to work and was issued a warning regarding his
unreported absences during the prior week.

On November 10, 2003, Claimant became involved in an argument
with his supervisor, Dennis Evangelista, who is Employer's Wilkes-Barre branch
manager. The argument escalated and Claimant left the office and went to the
police station to report the incident.3

Claimant never returned to work after November 10, 2003 because he
feared for his safety. Claimant, however, did not inform Employer of the incident
or his concern for his personal safety.

Claimant subsequently filed for unemployment compensation benefits
and the Service Center issued a February 17, 2004 notice of determination finding
Claimant ineligible under Section 402(b). Claimant appealed and a hearing was
held before a referee during which both parties presented evidence. On April 8,

(continued...)

Unemployment Compensation Board of Review, 776 A.2d 331 (Pa. Cmwlth. 2001). In its June 7,
2004 order, the Board adopted the referee's findings of fact as its own.
3 Claimant testified that Evangelista pounded his fist on the desk and shook the filing
cabinet closed. N.T. 11; R.R. 20. Evangelista testified that he was just trying to explain to
Claimant that he could not leave the area without permission and that he raised his voice and
closed a desk drawer that was open. Id. at 19; R.R. 28. Evangelista further testified that no
police report was filed and that the police never came to see him. Id.
2

2004, the referee issued a decision and order finding that Claimant voluntarily quit
for safety concerns involving his supervisor and that Claimant did not
communicate those concerns to Employer at the upper management level. As a
result, the referee concluded that Claimant was ineligible for benefits under
Section 402(b).

On appeal, the Board affirmed. In its order, the Board agreed with the
referee's conclusion that Claimant was ineligible for benefits under Section 402(b)
because he failed to exhaust reasonable alternatives such as speaking with
management prior to ending his employment.

Claimant's petition for review to this Court followed. On review, we
are limited to determining whether the Board's findings of fact are supported by
substantial evidence, whether errors of law were made, or whether constitutional
rights were violated. Fekos Enters. v. Unemployment Compensation Board of
Review, 776 A.2d 1018 (Pa. Cmwlth. 2001).

Claimant contends that the Board erred in ruling that he was ineligible
for benefits under Section 402(b) insomuch as Employer was aware of the
November 10, 2003 incident and Claimant's fears regarding Evangelista. Claimant
further contends that Employer made no attempt to contact Claimant or have him
return to work after the incident.
In
Porco v. Unemployment Compensation Board of Review, 828 A.2d
426 (Pa. Cmwlth. 2003), this Court addressed the issue of whether the claimant
was eligible for benefits under Section 402(b) where the claimant quit due to the
abusive conduct of his supervisor. "[T]he question of whether an employee has
voluntarily quit his or her employment is a question of law." Id. at 429.

"An unemployment compensation claimant may be entitled to benefits
if he or she can demonstrate that real and substantial circumstances caused the
claimant to voluntarily leave and that those circumstances would have compelled a
3

reasonable person to act in the same manner." Id. at 428. "After a claimant
demonstrates that real and substantial circumstances existed, a voluntary leave is
transformed into an involuntary leave." Id.

"In hostile work environment cases, Pennsylvania courts for half a
century have found that profanity in the workplace, abusive conduct and unjust
accusations represent adequate justification to terminate one's employment and
that the claimant need not be subjected to such conduct or language indefinitely."
Id. "However, a claimant must take common sense action to obviate the problem
so that he or she does not have to terminate employment, and this is accomplished
by informing one's superiors of the harassing, humiliating or abusive conduct." Id.

In Porco, the claimant, Daniel Porco, "was routinely subjected to
abusive conduct and profanity from his sales manager, and this finding was
corroborated by another employee." Id. at 429. Citing Willet v. Unemployment
Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981) (resignation
due to abusive conduct by supervisor results from a cause of a necessitous and
compelling nature), we determined that Porco need not tolerate such a hostile
environment and, therefore, that he established justification for leaving.

Nevertheless, we also determined that because Porco failed to speak
to upper level management about his supervisor's abusive conduct, he "failed to
exhaust all alternatives to preserving his employment relationship, and,
consequently, he [had] not established that he had a cause of a necessitous and
compelling nature to voluntarily leave his position." Id. (footnote omitted). In
Porco, we recognized that where the claimant's immediate supervisor is the
perpetrator of the abusive conduct, it is incumbent upon the claimant to report that
conduct to upper level management to provide it an opportunity to remedy the
situation.
4

In the present case, Claimant avers in his brief that he was hired in
Employer's Wilkes-Barre office and that he was unaware of any upper level
management or corporate office. Claimant further avers that if he had been aware
of a corporate office, he would have contacted them about the incident with
supervisor.

Claimant, however, never raised such averments before the referee or
Board. Inasmuch as they are not a part of the record, they cannot be considered by
this Court on appeal. Croft v. Unemployment Compensation Board of Review, 662
A.2d 24 (Pa. Cmwlth. 1995).4

Nonetheless, Claimant cites Danner v. Unemployment Compensation
Board of Review, 443 A.2d 1211 (Pa. Cmwlth. 1982), where this Court reasoned
that where the employer's plant manager was aware of abusive conduct toward the
claimant in the workplace, the claimant need not attempt to maintain the
employment relationship by informing management of the abusive conduct. As
the Board noted, however, Danner is factually distinguishable from the present
case. Employer's corporate office is not located at the Wilkes-Barre site and thus
its upper level management was not able to observe Claimant's interaction with
Evangelista. Hence, it cannot be said that Employer's management either knew or
should have known about Evangelista's abusive conduct during the November 10,
2003 incident.

In addition, Claimant cites Tedesco Mfg. Co., Inc. v. Unemployment
Compensation Board of Review, 552 A.2d 754 (Pa. Cmwlth. 1989) and Homan v.

4 We note that although Claimant testified that he did have Employer's corporate phone
number, he never attempted to call Kayte Faux, Employer's Manager of Business Improvement
Districts. N.T. 15; R.R. 24. Earlier in his testimony, however, Claimant referred to her as
"Kayte" and stated that she was there when he tried to operate a sweeper. Id. This contradicts
Claimant's averment on appeal that he was unaware of any upper level management.
5

Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth.
1987) for the proposition that a claimant need not notify the employer of each and
every incident of harassment and that a claimant should not be ineligible for
benefits as long as he or she had taken "common sense" actions which would have
provided the employer with an opportunity to understand the nature of his or her
objection and a chance to take steps to resolve the problem.
Both
Tedesco and Homan involve claimants who quit as a result of
repeated incidents of sexual harassment. In both cases, the Board found that the
claimants had taken sufficient "common sense" actions to provide their respective
employers with notice of the harassment and an opportunity to take steps to stop it.
In fact, in both Tedesco and Homan the Board found that the claimants had
reported the incidents of harassment on several occasions. In Tedesco, the
claimant reported the harassment to her supervisor who did nothing about it. In
Homan, the claimant reported several incidents of harassment to her supervisors
who did not consider the incidents to be harassment.

In the present case, however, Claimant failed to report the November
10, 2003 incident with his supervisor to Employer's upper level management.
Unlike the situation in either Tedesco or Homan, Claimant's supervisor was the
perpetrator of the abusive conduct. As such, we believe that Porco is applicable
here and that Claimant failed to exhaust all alternatives for preserving his
employment by failing to report his supervisor's abusive conduct to Employer's
upper level management. Consequently, we conclude that Claimant has not met
his burden of proving that he had a cause of a necessitous and compelling nature
for his voluntary quit. Porco. Accordingly, we affirm.

JESS S. JIULIANTE, Senior Judge
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard M. Levulis,
:

Petitioner

:

:

v.

: No. 1432 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:

O R D E R

AND NOW, this 1st day of February, 2005, the June 7, 2004 order of
the Unemployment Compensation Board of Review is hereby AFFIRMED.

JESS S. JIULIANTE, Senior Judge

Document Outline