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PATRICIA DAVIS v. COMMONWEALTH PENNSYLVANIA (04/22/87)

decided: April 22, 1987.

PATRICIA DAVIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Patricia Davis, No. B-240354.

COUNSEL

Terry L. Fromson, for petitioner.

Jody P. Mahon, for intervenor, Pennsylvania Manufacturers' Association Insurance Company.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.

Author: Palladino

[ 105 Pa. Commw. Page 378]

Patricia Davis (Petitioner) appeals*fn1 from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying benefits to Petitioner for a voluntary quit without cause of a necessary and compelling nature.*fn2

[ 105 Pa. Commw. Page 379]

Petitioner was employed by Pennsylvania Manufacturers' Association Insurance Co. (Employer) as a customer representative. She terminated her employment on September 28, 1984 alleging harassment and retaliation for a discrimination lawsuit she had filed in December of 1982 against the Employer.

The referee made a finding that Petitioner had received three probations preceding her termination, the first probation for six months for unacceptable attendance, the second for 60 days for unsatisfactory production, and the third for six months for unacceptable attendance. She quit five days after the imposition of the last probation.

Our scope of review for appeals from Board orders is limited to a determination of whether constitutional rights were violated, errors of law were committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. Commonwealth Ct. 377, 517 A.2d 523 (1986).

In a voluntary quit case, the claimant has the burden of proving that the termination was based on a necessitous and compelling reason in order to receive unemployment compensation benefits. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982). A claimant who willingly resigns from her position must demonstrate that she had no real choice but to leave her employment. Stiffler v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 44, 438 A.2d 1058 (1982).

In the case at bar, the referee found, and Petitioner does not dispute, that the Employer imposed three probationary periods during the final year of her employment. Petitioner alleges that this amounted to ...


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