The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonelle Ensor, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1427 C.D. 2023
Respondent : Submitted: December 9, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 17, 2025
Jonelle Ensor (Claimant) petitions this Court, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) October 30, 2023
order affirming the Referee’s decision that denied Claimant UC benefits under
Section 402(b) of the UC Law (Law).1 Jonelle Ensor (Claimant) petitions this
Court for review of the Unemployment Compensation (UC) Board of Review’s
(UCBR) October 30, 2023 order affirming the Referee’s decision that denied
Claimant UC benefits under Section 402(b) of the UC Law (Law).2 Essentially,
there are two issues before this Court: (1) whether Claimant voluntarily left her
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary separation without cause of a necessitous and compelling nature).
employment; and (2) whether the UCBR’s Findings of Fact (FOF) 5, 13, and 16
were supported by substantial evidence. After review, this Court affirms.
On September 12, 2013, Claimant and Clearfield Professional Group
(Employer) entered into a contract (Original Contract) which provided the following
terms for Claimant’s employment as a Physician Assistant:
1. [Claimant] will be paid a salary of $75,000.00 per year
($2,884.62 biweekly minus all applicable taxes, etc.)[,]
effective September 30, 2013. On April 15, 2013, [sic] a
re-assessment will be carried out regarding profit/loss over
the first six months of the year and reimbursement will be
adjusted at that time.
2. [Claimant] will work 40 hours per week as per schedule
developed between [Claimant] and [Employer].
Additional hours may be required as directed by the
Physician Supervisor. [Claimant] will be reimbursed at
the rate of $54.09 for each hour worked in excess of 40
hours per week.
3. [Claimant] will be provided a personal monthly
profit/loss statement as soon as it is available at the end of
each month.
4. [Employer] agrees to make regular contributions for
[Claimant] into the [Employer] Retirement Plan as is for
other eligible employees of [Employer].
5. [Claimant] will be entitled to three weeks of vacation
and one week of educational leave during the term of this
contract. Vacation and educational leave may be taken at
her discretion. [Claimant] will also be entitled to five
days of sick/personal leave during the term of the
contract. [Claimant] will also be entitled to seven (7) paid
holidays per year as are other full-time employees of
[Employer].
6. [Claimant] will remain eligible for health care benefits
as are other full-time employees of [Employer]. Family
health insurance, if desired, will be provided with the
premiums paid by [Employer]. Individual vision coverage
2
will be provided by [Employer]. Family vision coverage
is available with the difference between family and
individual premiums paid through payroll deduction.
7. It is understood that [Employer] will be responsible for
paying the necessary costs of malpractice insurance and
the dues necessary for [Claimant] to maintain good
standing in the national, state[,] and local Physician
Assistant Societies. [Employer] will also pay registration
fees and expenses associated with [Claimant’s]
Continuing Medical Education.
8. It is understood that the term of this [Original
C]ontract will be for one year commencing on
September 30, 2013. Contract negotiations for
subsequent year(s) will be initiated sixty (60) days
before the termination of this [Original C]ontract.
9. It is understood that the terms of this [Original C]ontract
are dependent upon [Claimant] maintaining National
Certification as a Physician Assistant as well as
maintaining an unrestricted license to practice as a
Physician Assistant in the [s]tate of Pennsylvania.
10. It is understood by the parties of this [Original
C]ontract that this [Original C]ontract may be
terminated within [30] days of written notification of
the same.
Reproduced Record (R.R.) at 63a (emphasis added). Notwithstanding the Original
Contract’s one-year expiration date, Claimant continued working for Employer
thereafter, pursuant to the terms of the Original Contract as amended by verbal
agreements to increase Claimant’s pay.
On August 25, 2015, Claimant and Employer entered into a Loan
Repayment Assistance Agreement (LRAA) subject to the following terms:
This [LRAA] entered into between [Claimant] and
[Employer] is intended to provide student loan repayment
assistance to [Claimant] for obligations previously
incurred to finance her professional education. Nothing
herein commits [Employer] to future financial obligations
incurred by [Claimant].
3
It is understood that the total of [Claimant’s] payments is
$1,242.42 per month. [Employer], agrees to increase
[Claimant’s] monthly salary by $1,600.00 for the
remaining term of her loans. It is understood by both
parties that this salary increase is for the purpose of loan
repayment assistance and will terminate at the end of the
loan repayment term, which is scheduled for October
9, 2024. At that time, [Claimant’s] salary will revert to her
current salary or a salary to be re-negotiated between
[Claimant] and [Employer].
....
In consideration of this loan repayment assistance,
[Claimant] agrees to remain in the employ of
[Employer] for a term of one (1) year after the loan
repayment date, ending on October 9, 2025.
[Claimant] also agrees to maintain a schedule of seeing
an average of 260 or more patients per month.
This [LRAA] is effective August 24, 2015 through
October 9, 2025.
R.R. at 65a (emphasis added).
In June 2022, Claimant was diagnosed with pancreatitis which
necessitated a two-week absence from work, and which had the potential to require
future work absences. On June 24, 2022, Employer presented Claimant with the
following terms for a new proposed contract (Proposed Contract):
1. [Claimant] will be paid an hourly rate [of] [$]48.00
and the expectation is to work 5 days/week, 40 hours.
No overtime is expected and will require prior
authorization well before overtime would be incurred.
2. [Claimant] will be provided a personal [q]uarterly
profit/loss statement as soon as it is available at the end of
each [q]uarter. This will serve as a resource for possible
raises, and/or not renewing the annual contract for
employment.
3. [Employer] agrees to make regular contributions for the
401k into the [Employer] Retirement Plan as is done for
4
other eligible employees of [Employer]. This is currently
a dollar for dollar match up to 4%.
4. [Claimant] will be entitled to three weeks of vacation,
given annually, and then follow the vacation time accrual
as outlined in the Employee Handbook. Vacation will be
taken only one week at a time, and not in conjunction
with another provider, unless prior approval has been
arranged. Three days of educational leave will be
provided annually at [Employer] to ensure [Claimant]
uses this for meeting [her] . . . requirements for licensure;
any unused time will not be paid out at the time of
[Claimant’]s exit from [Employer]. [Claimant] will also
be entitled to [five] days of sick/personal leave per year.
This will be a use/lose benefit and will not be paid out
at the time of departure from [Employer]. [Claimant]
will also be entitled to seven (7) paid holidays per year
as are other full-time employees of [Employer]. If
[Claimant] is scheduled to work on the day that the
[h]oliday is celebrated on. [sic] (Follow Employee
Handbook).
5. [Claimant] will remain eligible for health care benefits
as are other full-time employees of [Employer].
6. It is understood that [Employer] will be responsible for
paying the necessary costs of malpractice insurance and
the dues necessary for [Claimant] to maintain good
standing in the national, state[,] and local Physician
Assistant Societies, while employed at [Employer]. If
[Claimant] exits [Employer], [Claimant] will reimburse
any months remaining.
7. It is understood that the term of this [Proposed C]ontract
will begin [July 26, 2022]. And the separate [LRAA] is
considered completed. Contract negotiations for
subsequent year(s) will be initiated sixty (30) [sic] days
before the termination of this [Proposed C]ontract.
8. It is understood that the terms of this [Proposed
C]ontract are dependent upon [Claimant] maintaining
National Certification as a Nurse Practitioner as well as
maintaining an unrestricted license to practice as a
[Physician Assistant] in the [s]tate of Pennsylvania.
5
9. It is understood by the parties of this [Proposed
C]ontract that this [Proposed C]ontract may be terminated
within [30] days of written notification of the same.
R.R. at 66a (emphasis added).
By August 25, 2022 correspondence (August Letter), Claimant’s
attorney (Counsel) notified Employer:
On September 12, 2013, [Employer] and [Claimant]
entered into a binding[,] written [Original Contract]. The
[Original] Contract was verbally amended as to the pay
provisions in the first part of 2014, and again in 2015, but
otherwise remains in effect as initially written. In 2015,
[Claimant’s] pay was changed to $49.12/hour (which
works out to $102,000[.00] per year), as reflected in her
paychecks for years. She has not received a raise since.
No other provisions of the [Original] Contract were
amended, verbally or otherwise.
The [Original] Contract was never terminated. At Section
10, the [Original] Contract clearly requires 30 days’
written notice prior to its termination. Whenever
[Claimant] brings up the [Original] Contract with your
office manager, the office manager consistently refuses to
acknowledge its provisions as applicable and binding.
Consultation with your counsel should confirm the
opposite. If [Employer] is represented by counsel with
respect to this matter, please ask [Employer’s] counsel to
contact me.
R.R. at 58a.
Counsel further recounted in the August Letter:
After [Claimant’s] recent bout with pancreatitis and the
associated ongoing health conditions surfaced,
[Employer] hired another physician[] assistant, cut
[Claimant’s] patient volume back, told her she would no
longer be able to take two weeks’ vacation back-to-back,
and, most surprisingly, presumed to unlawfully and
retroactively reduce [Claimant]’s rate of pay by $10[.00]
an hour, down to $39.12 per hour, for the two-week pay
period from July 17 through July 30, 2022, summarily
informing her on receipt of her paycheck that her pay had
6
been retroactively reduced and would continue to be
reduced until she signed the [Proposed C]ontract that
[Employer] provided to [Claimant] . . . . [Employer]
wisely abandoned that unlawful tactic after only one pay
period, presumably after its counsel advised it that doing
so was not legally justifiable, but [Employer] continued to
maintain the threat that [Claimant] will be fired if she does
not sign the Proposed . . . Contract by today, August 26,
2022. [Claimant] declines to sign any new employment
contract that would result in material adverse changes to
her terms and conditions of employment.
The Proposed . . . Contract that [Employer] is trying to
force [Claimant] to sign is significantly worse than the
[Original] Contract . . . currently . . . in effect, representing
. . . materially adverse changes in the terms and conditions
of [Claimant’s] employment. The Proposed . . . Contract
was not proposed due to any deficient performance
reasons or other such cause[.] . . . [I]t is clear that
[Claimant] is being singled out for this outrageous
treatment due to her chronic health condition, which is a
disability as defined under the Americans with Disabilities
Act [of 1990 (ADA)].[3]
R.R. at 59a.
Counsel demanded in the August Letter:
[Claimant] insists that [Employer] stop discriminating
against her because of her disability by taking unwarranted
adverse employment actions against her. At the minimum,
even if disability discrimination [was] not illegal,
[Claimant] would be entitled to [30] days’ written notice
prior to termination of the [Original] Contract. In addition,
if [Employer] chooses to fire [Claimant] in violation of the
[ADA] and her [Original] Contract and without cause,
[Employer] will remain liable under the [LRAA] to pay
$1,600[.00] per month for the remaining 26 months (a total
of $41,600[.00]). [Employer] cannot escape liability
under the [LRAA] by reducing [Claimant’s] patient
volume or by wrongfully terminating her.
3
42 U.S.C. §§ 12101-12213.
7
In addition, [Claimant] demands that [Employer]
immediately pay [Claimant] all of her improperly withheld
pay . . . .
If [Employer] prefers to terminate the [Original] Contract
and settle the disability discrimination and Wage Payment
and Collection Law[4] violations, [Claimant] might be
amenable to an appropriate buyout/settlement agreement,
and [Employer] can direct any proposals to me.
R.R. at 58a-59a.
By September 23, 2022 letter, Employer notified Claimant: “The intent
of this letter is to inform you that your last day of employment with [Employer] will
be on Thursday, [September 29, 2022]. We appreciate your time here at [Employer]
and do wish you the best of luck in your future endeavors.” R.R. at 10a.
On October 17, 2022, Claimant applied for UC benefits. The Altoona
UC Service Center determined that Claimant was eligible for benefits under Section
402(b) of the Law because Claimant demonstrated a necessitous and compelling
reason for voluntarily leaving her employment. Employer appealed and a Referee
held a hearing on April 4, 2023. On April 19, 2023, the Referee reversed the UC
Service Center’s determination, concluding that Claimant was ineligible for benefits
because she voluntarily left her employment without a necessitous and compelling
reason. The Referee made the following FOFs in support of the reversal:
1. [] Claimant was employed by [Employer] as a full-time
Physician[] Assistant from September 30, 2013, until
September 29, 2022, her last day of work.
2. [] Claimant had a written [Original C]ontract effective
September 30, 2013.
3. [] Claimant then had a verbal agreement regarding rate
of pay.
4. On August 25, 2015, [] Claimant and Employer agreed
upon a[n LRAA] which would provide [] Claimant with
4
Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§ 260.1-.13, 260.45
8
$1,600[.00] per month if she successfully met the
requirements of the [LRAA].
5. The $1,600[.00] per month was never a guaranteed
payment.
6. [] Claimant estimated her hourly rate at $49.10 per hour
if she received the additional $1,600[.00] per month.
7. Due to multiple new hires, [] Employer was providing
all employees with updated and uniform contracts.
8. [] Claimant’s [Proposed C]ontract did not [contain] the
loan repayment incentive.
9. The [Proposed C]ontract did provide an hourly rate of
$48[.00] per hour which was approximately $1[.00] less
than the maximum [] Claimant could receive if she met the
requirements of the previous contract.
10. The [Proposed C]ontract was for the same amount of
vacation. The only difference with the vacation in the
[Proposed C]ontract was that any leave of two weeks or
more needed pre-approval.
11. The [Proposed C]ontract also provided that the
vacation pay and sick pay would not roll over.
12. [] Claimant received the [Proposed C]ontract in early
July 2022.
13. Following receipt of the [Proposed C]ontract, []
Claimant made no attempt to negotiate the terms of the
[Proposed C]ontract with [] Employer.
14. [] Claimant failed to sign the [Proposed C]ontract.
15. [] Claimant was permanently separated on September
28, 2022, [sic] due to her failure to sign the [Proposed
C]ontract.
16. Continuing work was available had [] Claimant
voluntarily signed the [Proposed Contract].
R.R. at 69a (emphasis added).
9
On May 8, 2023, Claimant appealed to the UCBR. On October 30,
2023, the UCBR adopted the Referee’s factual findings and legal conclusions and
affirmed the Referee’s determination.5 Claimant appealed to this Court.6
Claimant first contends that the UCBR erred by concluding that
Claimant voluntarily terminated her employment where the record evidence
establishes that Employer discharged Claimant.
Section 402(b) of the Law provides, in relevant part, that
an employee shall be ineligible for UC benefits for any
week “[i]n which h[er] unemployment is due to
voluntarily leaving work without cause of a necessitous
and compelling nature[.]” 43 P.S. § 802(b). This Court
has explained:
The claimant has the burden of proving that [s]he
had a necessitous and compelling cause for
voluntarily terminating [her] employment. PECO
Energy Co. v. Unemployment Comp. Bd. of Rev[.],
682 A.2d 58, 60 (Pa. Cmwlth. 1996). A
necessitous and compelling cause is that which
“results from circumstances which produce
pressure to terminate employment that is both real
and substantial, and which would compel a
reasonable person under the circumstances to act
in the same manner.” Taylor v. Unemployment
Comp. Bd. of Rev[.], . . . 378 A.2d 829, 832-33
([Pa.] 1977). To meet this burden, the claimant
must generally demonstrate that [s]he took “all
necessary and reasonable steps to preserve the
employment relationship.” PECO Energy Co.,
682 A.2d at 61.
5
“[T]he [UCBR] is the ultimate fact-finder in [UC] matters and is empowered to resolve
all conflicts in evidence, witness credibility, and weight accorded the evidence.” HPM Consulting
v. Unemployment Comp. Bd. of Rev., 185 A.3d 1190, 1194 (Pa. Cmwlth. 2018) (quoting Ductmate
Indus., Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008)).
6
“This Court’s review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, whether the agency’s practices or procedures
were violated, or whether the findings of fact were supported by substantial evidence.” Sangston
v. Unemployment Comp. Bd. of Rev., 325 A.3d 892, 893 n.4 (Pa. Cmwlth. 2024).
10
St. Clair Hosp. v. Unemployment Comp. Bd. of Rev., 154
A.3d 401, 404-05 (Pa. Cmwlth. 2017) (en banc) . . . .
Mroz v. Unemployment Comp. Bd. of Rev., 313 A.3d 1150, 1152 (Pa. Cmwlth. 2024)
(underline emphasis added; bold emphasis omitted).
This Court has explained:
Whether a [c]laimant’s separation from employment is the
result of a voluntary action or a discharge is a question of
law subject to this Court’s review and must be determined
from a totality of the facts surrounding the cessation of
employment. Key v. Unemployment Comp. Bd. of Rev[.],
687 A.2d 409, 412 (Pa. Cmwlth. 1996). “It is a claimant’s
burden to prove that h[er] separation from employment
was a discharge.” [Id]. If a claimant proves that [s]he was
discharged, then the burden to prove that the claimant was
discharged for willful misconduct is on the employer. Id.
at 412-13. If a claimant fails to prove that [s]he was
discharged, then the claimant has the burden to prove
necessitous and compelling reasons for quitting. See
Empire Intimates v. Unemployment Comp. Bd. of Rev[.],
655 A.2d 662, 664 (Pa. Cmwlth. 1995).
In Hospital Service Ass[’n] of Northeastern Pennsylvania
v. Unemployment Compensation Board of Review, . . . 476
A.2d 516 ([Pa Cmwlth.] 1984), this Court explained 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 [UC] to a claimant who
‘voluntarily [leaves] work without cause of a necessitous
and compelling nature.’” Hospital Serv. Ass’n . . . , 476
A.2d [at] 518 . . . (emphasis and alteration in original).
Middletown Twp. v. Unemployment Comp. Bd. of Rev., 40 A.3d 217, 224-25 (Pa.
Cmwlth. 2012) (bold emphasis added).
This Court has expounded:
The phrase ‘voluntarily leaving work’ in
Section 402(b)[] [of the Law] means that
‘[s]he left of h[er] own motion; [s]he was
not discharged. It is the opposite of a
11
discharge, dismissal[,] or layoff by the
employer or other [a]ction by the employer
severing relations with [its] employes . . . .’
Labor [&] Indus[.] [Dep’t] v. Unemployment
Comp[.] [Bd.] of Rev[.], . . . 3 A.2d 211, 213,
. . . ([Pa. Super.] 1938). . . .
Hutt [v. Unemployment Comp. Bd. of Rev.], 367 A.2d
[390,] 391 [(Pa. Cmwlth. 1976)] (emphasis added).
The Pennsylvania Supreme Court clarified:
The resolution of [whether an employee
voluntarily quit h[er] job] requires a
determination of the intent of the employee[].
Case law has established ‘a finding of
voluntary termination is essentially
precluded unless the claimant had a
conscious intention to leave h[er]
employment.’ . . . Roberts v. [Unemployment
Comp. Bd. of Rev.], . . . 432 A.2d 646[, 648],
. . . ([Pa. Cmwlth.] 1981). Furthermore, the
case law supports the [] contention that
leaving the premises is not enough to
determine intent to voluntarily terminate
employment. However, where an employee
without any action of the employer resigns,
leaves[,] or quits employment[,] that action
amounts to a voluntary leaving. In all cases
the totality of the circumstances surrounding
the incident must be considered when
determining the intent to quit.
Monaco v. Unemployment Comp. Bd. of Rev[.], . . . 565
A.2d 127, 129 ([Pa.] 1989) (emphasis added; citations
omitted).
Gosner v. Unemployment Comp. Bd. of Rev., 234 A.3d 934, 937-38 (Pa. Cmwlth.
2020).
It is true that this [C]ourt has held that “[]when an
employee engages in conduct which necessarily leads to
termination of [her] employment, the [UCBR] is clearly
justified in characterizing such termination as
voluntary.[]” Comstock v. Unemployment Comp[.] B[d.]
12
of Rev[.], . . . 437 A.2d 1318, 1319 ([Pa. Cmwlth.] 1981)
(quoting Fisher v. Unemployment Comp[.] B[d.] of Rev[.],
. . . 393 A.2d 1304, 1306 ([Pa. Cmwlth.] 1978)). For
instance, in Comstock, the claimant was laid off from his
position, but . . . was aware that he could exercise his
privilege of seniority under the applicable collective
bargaining agreement and that he could continue working
by exercising this “bumping” right. We found that since
the claimant had a right to continue employment under
the collective bargaining agreement, his failure to
exercise that right constituted a voluntary termination
of his employment.
Maines v. Unemployment Comp. Bd. of Rev., 532 A.2d 1248, 1251 (Pa. Cmwlth.
1987) (emphasis added).
Here, Claimant contends that she did not voluntarily leave work
because she was working subject to the Original Contract’s terms and intended to
continue to do so until such time as Employer terminated her employment. Claimant
entered into the Original Contract - a one-year employment contract7 - on September
13, 2013, to commence on September 30, 2013. The record does not reflect that the
parties thereafter executed yearly contracts. Instead, the parties continued to
perform in accordance with the Original Contract’s terms, as supplemented by the
LRAA and verbally-approved salary increases.8 Although the Original Contract was
7
See R.R. at 63a, ¶ 8.
8
With respect to the nature of Claimant’s employment at the time of her employment
termination, the Pennsylvania Superior Court has explained:
In a 1949 Superior Court case, we held that the employee’s
continuation of his employment, without objection, following
the expiration of the employee’s one-year contract, resulted in a
renewal by implication of the same contract, under the same
terms and conditions. Smith v. Shallcross, . . . 69 A.2d 156 ([Pa.
Super.] 1949); see also DeMuth v. Miller, . . . 652 A.2d 891 ([Pa.
Super.] 1995) . . . . In support of its decision[,] the Shallcross Court
cited to Williston on Contracts.
Where a contract of employment for a definite time
is made and the employee’s services are continued,
13
for a one-year term, because neither party terminated it, upon its expiration, the
Original Contract automatically renewed each year thereafter with the same terms,
as modified by the LRAA and the verbally-approved salary increases. Therefore,
the Original Contract, as modified, automatically renewed on September 30, 2021,
and remained in effect until September 29, 2022. Further, based on the Original
Contract’s terms, either party could terminate it with 30 days’ written notice, and
negotiations for the Proposed Contract could begin 60 days prior to the contract’s
September 29, 2022 expiration.
On July 26, 2022, Employer informed Claimant that it intended not to
renew the Original Contract set to expire on September 29, 2022, and offered
Claimant continued employment under the Proposed Contract with different terms.
Thus, Employer’s September 23, 2022 letter did not terminate Claimant’s
employment, but rather confirmed the Original Contract’s September 29, 2022
expiration, and Employer’s intention to proceed under a new one. Because Claimant
refused “to accept an offer of continued employment[, she is] deemed to have quit
[her] position [by rejecting the Proposed Contract], and [is] thus subject to Section
402(b) of the [Law.]” Middletown Twp., 40 A.3d at 225.
This Court’s conclusion that Claimant voluntarily quit her employment
does not end the inquiry. The law is well established:
In order to establish cause of a necessitous and
compelling nature, a claimant must establish that (1)
after the expiration of the time, without objection,
the inference is that the parties have assented to
another contract for a term of the same length with
the same salary and conditions of service, following
the analogy of a similar rule in regard to leases.
Shallcross, [69 A.2d] at 158 ([italicized] emphasis in original),
quoting 1 Williston, Contracts, § 90.
Janis v. AMP, Inc., 856 A.2d 140, 147-48 (Pa. Super. 2004) (bold emphasis added).
14
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. Procito
v. Unemployment Comp. Bd. of Rev[.], 945 A.2d 261, 265
(Pa. Cmwlth. 2008).
“[I]t is well[]settled that an employer’s imposition of a
substantial unilateral change in the terms of employment
constitutes a necessitous and compelling cause for an
employee to terminate her employment.” Brunswick
Hotel [& Conf.] Ctr., LLC v. Unemployment Comp. Bd. of
Rev[.], 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Whether
a change is “so substantial as to warrant necessitous
cause for terminating employment,” must be
determined based on the circumstances of each case.
Id., 906 A.2d at 660. “[S]ubstantiality is measured by
the impact on the employee, and whether the change
involves any real ‘difference’ in employment
conditions.” McCarthy v. Unemployment Comp. Bd. of
Rev[.], 829 A.2d 1266, 1272 (Pa. Cmwlth. 2003). The
reasons for the change in employment conditions are
irrelevant, as “[i]t is not a defense for the employer to
merely establish that it had good reasons for the unilateral
change.” Chavez (Token) v. Unemployment Comp. Bd. of
Rev[.], 738 A.2d 77, 82 (Pa. Cmwlth. 1999) . . . .
Middletown, 40 A.3d at 227-28 (emphasis added).
Claimant argues that the Referee’s FOFs 5, 13, and 16, which the
UCBR adopted, were not supported by substantial evidence. Rather, Claimant
contends that the record evidence demonstrates that Claimant had a necessitous and
compelling reason for leaving her employment. “Substantial evidence is such
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964
(Pa. Cmwlth. 2022).
Specifically, Claimant asserts:
15
Employer knew that a critical term of the [Current
Contract] provided [] Claimant with a significant amount
of paid vacation time, which she used at her pleasure and
sole discretion, and this eventually dissatisfied Employer,
invoking [sic] it to propose the . . . Proposed . . . Contract
that substantially curtailed Claimant’s use of vacation
time, particularly by eliminating Claimant’s right to take
two weeks of vacation time consecutively. [See] R.R. at
48a-55a.
Further, by its terms, the . . . Proposed . . . Contract would
have: (1) terminated the [LRAA] and reduced Claimant’s
hourly compensation to $48.00 from approximately
$49.10 and thus reduced her effective annual
compensation to $99,840.00 from approximately
$102,000.00; (2) eliminated her right to overtime pay; (3)
eliminated any reference to salary, in favor of exclusively
referencing hourly pay; (4) eliminated her right to be paid
for unused vacation time upon termination; (5) eliminated
her right to take vacation and education leave at her
discretion; and (6) nullified the [Original Contract’s] 30-
day termination notice provision. [See] R.R. at 9a, 32a,
43a.
Finally, in rescinding the [LRAA], the . . . Proposed . . .
Contract would also have immediately eliminated
Claimant’s guaranteed term of employment tenure up to
and including October 9, 2026. [See] R.R. at 9a, 65a.
Claimant Br. at 25.
The Referee observed:
Here, [] Claimant and [] Employer testified to the terms of
the [Original C]ontract as well as the [Proposed C]ontract.
[] Claimant argued that she would not sign the [Proposed
C]ontract due to an approximately $1[.00] less per hour
[sic]. However, that figure is based only upon the
assumption that [] Claimant would qualify for the terms of
the [LRAA]. The new contracted hourly rate was a raise
if not considering the loan repayment incentive, as it was
not guaranteed. [] Employer credibly testified that the
contract changes were unilateral. [] Claimant argued that
a medical condition and a two-week leave of absence
resulted in the [Proposed C]ontract. The Referee does not
16
accept [] Claimant’s assumption. The Referee finds that
the [Proposed C]ontract was reasonable, and that []
Claimant made no effort to negotiate the [Proposed
C]ontract. [] Claimant made no attempt to maintain the
employment relationship and had every intent to
voluntarily separate. As such, the Referee cannot find that
[] Claimant has established a necessitous and compelling
reason for leaving employment at the time [] Claimant did
or that [] Claimant acted with ordinary common sense and
made a good faith effort to preserve the employment.
R.R. at 70a (emphasis added).
Claimant challenges the UCBR’s FOF 5 - “The $1,600[.00] per month
was never a guaranteed payment[,]” FOF 13 - “Following receipt of the [Proposed
C]ontract, [] Claimant made no attempt to negotiate the terms of the [Proposed
C]ontract with [] Employer[,]” and FOF 16 - “Continuing work was available had []
Claimant voluntarily signed the [Proposed Contract].” R.R. at 69a.
With respect to FOF 5, relating to the nature of Employer’s obligation
to pay Claimant $1,600.00 per month, the LRAA provided:
[Employer] agrees to increase [Claimant’s] monthly salary
by $1,600.00 for the remaining term of her loans. It is
understood by both parties that this salary increase is for
the purpose of loan repayment assistance and will
terminate at the end of the loan repayment term, which is
scheduled for October 9, 2024. At that time, [Claimant’s]
salary will revert to her current salary or a salary to be re-
negotiated between [Claimant] and [Employer].
R.R. at 65a. However, as consideration therefor, Claimant agreed to remain in
Employer’s employ for 1 year after the loan repayment date and to “maintain a
schedule of seeing an average of 260 or more patients per month.” Id. Employer
asserted at the Referee hearing that Claimant did not maintain the required scheduled
patient numbers, but Employer continued to pay Claimant $1,600.00 per month. See
R.R. at 44a. Because Employer’s $1,600.00 payment was in consideration of
Claimant’s agreement to maintain the required scheduled patient numbers, Employer
17
was under no duty to pay that amount if Claimant failed to maintain her required
schedule numbers. Thus, FOF 5 is supported by substantial evidence.
With respect to FOF 13, pertaining to Claimant’s obligation to take
steps to preserve the employment relationship, the LRAA’s termination and the
implementation of the Proposed Contract’s new hourly rate would result in a $1.00
per hour reduction in Claimant’s remuneration for the Proposed Contract’s year
term. The Proposed Contract included other changes to Claimant’s employment
terms, such as eliminating Claimant’s right to be paid for unused vacation time upon
termination and eliminating her right to take vacation and education leave at her
discretion. Claimant contends that these changes were a substantial unilateral
change to the terms of her employment, justifying her voluntary employment
termination.
Assuming arguendo that Employer’s proposed changes to Claimant’s
employment terms constituted a substantial unilateral change, Claimant was still
required to demonstrate that she made a reasonable effort to preserve the
employment relationship. In FOF 13, the Referee found that “[f]ollowing receipt of
the [Proposed C]ontract, [] Claimant made no attempt to negotiate the terms of the
[Proposed C]ontract with [] Employer.” R.R. at 69a. Claimant contends that her
testimony at the Referee hearing that she was willing to negotiate the Proposed
Contract demonstrated her attempts to preserve the employment relationship.
However, the UCBR did not find Claimant credible and discounted her testimony.9
Claimant further argues that Counsel, “seeking to engage negotiations, sent [the
August Letter] to Employer stating: ‘If [Employer] is represented by counsel with
respect to this matter, please ask [Employer’s c]ounsel to contact me.’” Claimant
Br. at 27 (quoting R.R. at 58a-60a). However, the August Letter primarily threatens
9
This Court is bound by the UCBR’s credibility determinations. See Rivera v.
Unemployment Comp. Bd. of Rev., 310 A.3d 348 (Pa. Cmwlth. 2024).
18
legal action for alleged discrimination based on Claimant’s medical issues,
violations of various laws, and breach of the Original Contract. It does not express
Claimant’s willingness to negotiate the Proposed Contract’s terms. In fact, it states,
in pertinent part: “[Claimant] declines to sign any new employment contract that
would result in material adverse changes to her terms and conditions of
employment.” R.R. at 59a. It is clear that Claimant declined to discuss the Proposed
Contract directly with Employer. See R.R. at 39a, 41a-42a. Therefore, substantial
evidence supports FOF 13 that Claimant “made no attempt to negotiate the terms of
the [Proposed C]ontract with [] Employer.” R.R. at 69a.
Finally, with respect to FOF 16, Employer’s Proposed Contract
evidences Employer’s availability of continuing work for Claimant. Accordingly,
because FOFs 5, 13, and 16 are supported by substantial evidence, the UCBR
properly concluded that Claimant did not have a necessitous and compelling reason
for leaving her employment.
For all of the above reasons, the UCBR’s order is affirmed.
____________________________________
ANNE E. COVEY, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonelle Ensor, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1427 C.D. 2023
Respondent :
ORDER
AND NOW, this 17th day of January, 2025, the Unemployment
Compensation Board of Review’s October 30, 2023 order is affirmed.
____________________________________
ANNE E. COVEY, Judge