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AMY SELL v. COMMONWEALTH PENNSYLVANIA (02/06/81)

decided: February 6, 1981.

AMY SELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Amy L. Sell, No. B-154214-B.

COUNSEL

Terry L. Fromson, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 56 Pa. Commw. Page 498]

This is an appeal by the petitioner, Amy Sell, from an order of the Unemployment Compensation Board of Review (Board) denying benefits under Section 402(b)(1) 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)(1), and holding that she had voluntarily terminated her employment without cause of a necessitous and compelling nature.

The petitioner was employed as an art instructor for the Southern Home for Children, a psychiatric treatment center for emotionally disturbed boys and girls, until her last day of work on June 27, 1977. In December of 1976, after she had been struck in the back of her head by a cue stick case thrown by one of the children, she reported the incident to her employer, received medical treatment and then returned to work the next day, despite advice from her doctor that she should remain at home for two days in order to recover from the anxiety which she felt as a result of the experience. In May of 1977, she had also twice been struck in the head by basketballs thrown by one of the children, and at other times she had received verbal threats from one or more children, including an incident in April of 1977, when a seventeen year-old male with a criminal history of violent acts had said, while he was hitting a punching bag, "that he was going to knock [her] head off." One week after the May, 1977 occurrence, the Petitioner submitted her resignation to become effective on June 28, 1977,

[ 56 Pa. Commw. Page 499]

    stating that she was leaving because of the existing conditions of her employment. The Bureau (now Office) of Employment Security granted unemployment benefits but, upon appeal by her employer, a hearing was held and a referee reversed the grant. The Board ordered a remand for further testimony and after additional evidence was taken, the Board affirmed the referee's denial of benefits, holding that the petitioner did not have cause of a necessitous and compelling nature to terminate her employment. This appeal followed.

An employee who voluntarily terminates his or her employment bears the burden of proving that such resignation was due to a necessitous and compelling cause, Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977), and the issue of whether or not the facts as found by the Board amount to such good cause is a question of law to be resolved by this Court. Taylor v. Unemployment Compensation Board of Review, supra.

The petitioner does not challenge the facts as determined by the Board, but she does argue that those facts, as a matter of law, rise to the level of necessitous and compelling cause. She contends that her fear of physical injury due to the existing conditions of her job was an "emotional agitation experienced in the presence of an actual and imminent danger" and not merely an "anxiety produced by anticipation of danger." Labenski Unemployment Compensation Case, 171 Pa. Superior Ct. 325, 332, 90 A.2d 331, 335 (1952). She asserts that the dangers with which she was confronted were real, objective and substantial and she relies upon the case of Stanakenas Unemployment Compensation Case, 215 Pa. Superior Ct. 353, 257 A.2d 275 (1969), aff'd, 438 Pa. 554, 265 A.2d 519 (1970), wherein a claimant was found to have good cause for declining reemployment as a bus

[ 56 Pa. Commw. Page 500]

    driver when his previous experience demonstrated that the children distracted his attention by shouting, throwing objects and verbally abusing him, and thereby endangered himself and all the occupants of the bus. The petitioner also emphasizes that she made a good faith effort to retain employment by requesting a transfer to a department where she would be safer. See ...


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