Schwartz v. Commonwealth , 41 Pa. Commw. 451 ( 1979 )

Opinion by

Judge Blatt,

The appellant, Linda Schwartz, appeals here from the denial of unemployment compensation benefits, the denial having been based on finding that she had voluntarily quit her employment without cause of a necessitous and compelling nature.

The appellant had been employed as a medical technician for three years by the Diagnostic and Rehabilitation Center (employer). She and her supervisor evidently experienced a personality conflict, and, although the appellant requested to be transferred, there was no other work available. The unpleasant working conditions, she says, adversely, affected her health to such an extent that she began to take tranquilizers, and states that she advised the management several times that the working conditions were psychologically unbearable for her. After exploring the alternative of seeking work elsewhere, no transfer having been offered, she decided that her employment situation had brought her to the brink of a nervous breakdown and she then voluntarily quit. The Bureau of Employment Security denied unemployment benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law¹ (Act), and this ruling was affirmed on appeal by the referee and the Unemployment Compensation Board of Review. This appeal followed.

The issue here is whether or not the appellant had cause of a necessitous and a compelling nature which would justify the termination of her employment and establish eligibility for benefits. In cases of this kind, of course, the party alleging that the termination is based on “necessitous and compelling reasons” bears the burden of proof. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

Our Supreme Court has recently reviewed the relevant law on this issue in Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977), where the Court cites with approval the definition of “cause of a necessitous and compelling nature” as previously laid down by our Superior Court in Sturdevant Unemployment Case, 158 Pa. Superior Ct. 548, 556, 45 A.2d 898, 903 (1946).

[T]hey connote, as minimum requirements, real circumstances, substantial reasons, objective conditions, palpable forces tbat operate to produce correlative results, adequate excuses tbat will bear tbe test of reason, just grounds for action, and always the element of food faith.

Tbe Supreme Court bas also held tbat:

‘good cause’ for voluntarily leaving one’s employment (i.e. tbat cause wbicb is necessitous and compelling) results from circumstances wbicb produce pressure to terminate employment tbat is both real and substantial, and wbicb would compel a reasonable person under tbe circumstances to act in tbe same manner.

Taylor v. Unemployment Compensation Board of Review, 474 Pa. at 358-59, 378 A.2d at 832-33 (1977).

It is clear tbat any aggravation of a nervous condition or any other adverse effect of employment upon an employee’s health may constitute a necessitous and compelling cause. Baldassano v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 457, 383 A.2d 988 (1978); Wenrich v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 186, 382 A.2d 1303 (1978); Kernisky v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 199, 309 A.2d 181 (1973). It has also been clearly established, however, that a claimant in such a case must inform the employer of the health problems, must request a transfer to work wbicb is more suitable, and must establish tbat every reasonable effort bas been made to sustain tbe employer-employee relationship. It is not necessary for tbe employee to introduce documentation evidencing tbat a physician bas advised termination of employment for, as tbe Court said in Deiss, supra.

We believe that . . . the relevant consideration is the claimant’s health at the time of terminating employment. If a claimant realizes that either physically or emotionally he is unable to continue working and he offers competent testimony that at time of termination, adequate health reasons existed to justify termination, we can perceive no reason to require claimant to prove that he was advised to quit his job. (Emphasis supplied.)

Deiss v. Unemployment Compensation Board of Review, 475 Pa. at 555-56, 381 A.2d at 136.

In that case, however, the claimant had been under a psychotherapist’s care for over a year and the psychotherapist testified that at the time of termination the appellant would have suffered a nervous breakdown had he continued his employment. The Court there held that the appellant there had offered competent evidence to support the claim that he terminated employment for cause of a necessitous and compelling nature and that he was entitled to unemployment benefits. In this case, however, the appellant did not adduce any medical evidence to support her allegation. Rinehart v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 15, 389 A.2d 243 (1978). See Deiss v. Unemployment Compensation Board of Review, supra. Furthermore, she testified that, while she had been under a doctor’s care for her nervous condition in the past, he had not advised her she was unable to continue working. Her testimony to the effect that she felt she was going to have a nervous breakdown does not rise to the level of the competent evidence required under Deiss to support her allegation of a necessitous and compelling cause, Rinehart v. Unemployment Compensation Board of Review, supra, and we must, therefore, affirm the order of the Board.

Order

And Now, this 30th day of March 1979, the order of the Board in the above-captioned matter is hereby affirmed.

1 Act of December 5, 1936, Second Es. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (b)(1).