KK Fit, Inc. v. UCBR - Cmwlth. Court- October 22, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/349CD08_10-22-08.pdf
The court upheld the UCBR decision that the claimant had good cause to quit her job as the director of a children's gym, whose clients included infants.
The gym had two ongoing problems about which claimant complained for 5 months, to no avail. There were wiring problems and torn upholstery; some infants were eating pieces of the stuffing.
A third problem involved spider in the gym. One child had a bad reaction to a spider bite and had to be taken to the ER. The employer promised to take care of this problem, but claimant discovered that the exterminator visit had been cancelled and quit. The spider problem was not dealt with until 10 days later.
The Referee found that Claimant “acted as a reasonable person in inferring that [Employer] probably did not intend to take care of the problem immediately, as had been the case with the upholstery and the wiring.” Accordingly, the Referee affirmed the Service Center’s determination. Employer appealed the Referee’s decision to the Board. On appeal, the Board adopted and incorporated the Referee’s findings and conclusions, resolved the conflicts in testimony in favor of Claimant, and concluded that Employer “did not make timely and reasonable efforts to correct the serious safety issues present in the children’s gym.” The court held that these findings were "amply supported" by substantial evidence and the relevant law.
In order to show a necessitous and compelling cause to quit, the claimant must show that: “1) circumstances existed which produced real and substantial pressure to terminate employment; 2) like circumstances would compel a reasonable person to act in the same manner; 3) she acted with ordinary common sense; and 4) she made a reasonable effort to preserve her employment.” An employee has a necessitous and compelling reason for terminating employment when the job jeopardizes her health or safety, or when the work results in a violation of the law.
Claimant acted reasonably in terminating her employment when she did. Claimant brought to Employer’s attention two serious safety issues regarding the electrical and upholstery defects which went unaddressed on a permanent basis for nearly five months that Claimant continued with her employment, when another safety issue arose, i.e., the problem with the spiders, at which time Claimant approached Employer about her decision to resign.
Claimant opted to trust Employer that the spider issue would be taken care of in a timely manner and, when she found out that Employer had cancelled the exterminator, she quit her employment. Employer did not address the safety issues. When Employer did not address the spider issue when it said it would, it was not unreasonable for Claimant to believe said safety condition would continue to go unaddressed, because the "Employer did not address the safety issues in a timely manner."
Claimant acted with ordinary common sense and made a reasonable effort to preserve her employment by taking proactive measures to address the safety concerns, while timely notifying the appropriate people of the various safety concerns. A reasonable person would act in the same manner both out of concern for her own safety from the faulty electrical wiring, as well as the lingering safety hazards to the children that were under her care. Based on the totality of the circumstances, and the gravity of the complaints that were not addressed, we cannot conclude that the Board erred as a matter of law in granting Claimant benefits.
