IN THE COMMONWEALTH COURT OF PENNSYLVANIA
   John Paul Brenneman,       :
                  Petitioner  :
                              :
             v.               :  No. 596 C.D. 2004
                              :  Submitted: August 20, 2004
 Unemployment Compensation    :
  Board of Review,            :
                  Respondent  :
 
                  BEFORE: HONORABLE D AN PELLEGRINI, Judge
                          HONORABLE MARY HAN NAH LEAVITT, Judge
                          HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

     OPINION NOT REPORTED
     MEMORANDUM OPINION  BY SENIOR JUDGE McCLOSKEY

               FILED:  October 1, 2004      

John Paul Brenneman (Petitioner), petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), dated February 6, 2004, affirming the decision of an Unemployment Compensation Referee (the Referee), thereby denying unemployment compensation benefits to Petitioner. We now affirm.

On or about August 25, 2003, Petitioner sought unemployment compensation benefits after having ceased employment with Lobar, Inc. (Employer). On or about October 3, 2003 , the Pennsylvania Department of Labor and Industry (Department) issued a notice of determination under Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. $802(b), denying benefits for Petitioner. The Department found that Petitioner voluntarily quit his job because of verbal abuse at work and that he did not exhaust all alternatives prior to quitting.

Petitioner filed a timely appeal from the Department's determination. A hearing was conducted on November 18, 2003. On December 15, 2003, the Referee issued a decision affirming the Department's determination and denying benefits to Petitioner under Section 402( b) of the Unemployment Compensation Law. The Referee found that Petitioner voluntarily resigned from his employment because he had concerns about the safety program of Employer and other concerns. The Referee concluded, however, that Petitioner had not reported all of his concerns to Employer, and, therefore, he did not allow Employer the opportunity to exercise its managerial duties and prerogatives before he resigned. The Referee stated that Petitioner "had not shown [that] his reasons for leaving employment were necessitous and compelling."

Petitioner then filed an appeal to the Board. By decision and order dated February 6, 2004, the Board issued an order affirming the decision of the Referee. The Board agreed that Petitioner had not communicated his concerns to Employer prior to quitting. Further, the Board stated that safety equipment was available to Petitioner on the job site, but he chose not to use it. The Board adopted the findings and conclusions of the Referee. Petitioner then filed a timely petition for review with this Court.

On appeal, Petitioner argues that it is unethical to deny unemployment compensation benefits when an employee quits a job because of unsafe employment practices. He also argues that his lawyer misrepresented him by not asking important questions and by discouraging the use of subpoenas which would have been beneficial to his case. Finally, he argues that he is due unemployment compensation benefits, including back pay.1 Employer argues that the decision of the Board is correct as a matter of law and is supported by facts in the record. In addition, Employer argues that Petitioner has not stated any appealable issues.

The scope and standard of review in an unemployment compensation case is limited to whether the findings of facts are supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Walton v. Unemployment Compensation Board of Review, 797 A.2d 437 (Pa. Cmwlth. 2002); Ellis v. Unemployment Com pensation Board of Review, 749 A.2d 1028 (Pa. Cmwlth. 2000); and Broadus v. Unemployment Compensation Board of Review, 721 A.2d 70 (Pa. Cmwlth. 1998).

Section 402(b) of the Unemployment Compensation Law provides that a claimant shall be ineligible for compensation for any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Whether an employee quits employment for cause of a necessitous and compelling nature is a legal conclusion subject to appellate review. Brown v. Unemployment Compensation Board of Review , 780 A.2d 885 (Pa. Cmwlth. 2001). This Court has stated that:

A claimant has the burden of establishing the existence of necessitous and compelling reasons for quitting, and such cause is defined as circumstances that produce pressure to terminate the employment which is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner. Additionally, the claimant must prove that she acted with ordinary common sense in quitting her job, that she made a reasonable effort to preserve her employment, and that she had no other real choice than to leave her employment.

Our review of the record reveals that beginning in 1995, Petitioner was employed full-time as a general construction mechanic, who performed work at multiple customer locations. (O.R., transc ript of hearing, pp. 4-5.) His last day of work was August 14, 2003. Id. at 5. At that time, he was working on a project at the West Perry Middle School, which is located approximately nine miles from his house. Id. at 6.

Petitioner testified to a variety of concerns regarding his work at the West Perry Middle School. He testified to concerns that he had that he might be working with substances that contained asbestos, and he stated that he began collecting samples of materials at the work site. 2 Id. at 7-8, 13-14. He testified that he had safety concerns regarding working on the roof of the project because there was no rope in place to function as a warning line for a worker nearing the edge of the roof and harnesses were not used to prevent a worker from hitting the ground if he fell. Id. at 10-11. He also testified that one stairwell lacked temporary handrails. Id. at 11-12, 27-28. He also testified that a co-worker had fallen off a ladder that was not tied off, and the co-worker broke his wrist. 3, 4 Id. at 12-13.

Petitioner testified that on August 13, 2003, he made a comment to the superintendent of the work site regarding the stairwell. Id. at 14-15. The following day he was given an assignment to cut into an electrical power line. Id. at 15-16. He had previously had assignments that included cutting through dead power lines as part of demolition. Id. He had been informed that the power ha d been cut off, but it was not. Id. The line sparked when he began to cut it and sparks flew. Id. He did not get hurt and they all laughed. Id. The saw blade turned red, and the temporary generator began smoking. Id. Petitioner stated that the incident was not his fault, and he did not receive a reprimand. Id.

However, the next day he was informed that he was being assigned to a Jersey Shore project, which was located approximately an hour and forty-five minute to two hours away from his house. Id. at 17. He was assigned to pour concrete. Id. He testified that Employer employs many employees who could pour concrete. Id. On cross-examination, he acknowledged that it was not uncommon for him to be assigned for short periods of time to other projects to pour concrete and that he poured concrete better than most employees in the company. Id. at 31-32.

That night, he considered the reassignment, the incident involving the electrical line and other incidents that had occurred over the years. Id. 17-19. He testified that the following morning, on August 15, 2003, while driving to the job site, he decided that he no longer wished to work for Employer. Id. at 19-20. He returned home and then telephoned Employer. Id. There was no testimony that Petitioner addressed his complaints and concerns with Employer prior to quitting.

Petitioner further testified that in August, 2003, he delivered to a laboratory the samples that he had collected from various areas around the work site.5 Id. at 20-21. The laboratory tested the samples and determined that all but one of the samples contained asbestos. Id. The floor pad that he had ground for months did not contain asbestos. Id. He had concerns be cause he believed that there was no plan in place to deal with asbestos. Id.

Based on our review of the test imony, we m ust conclude that substantial evidence exists to support the finding that Petitioner did not communicate his concerns to Employer prior to quitting. Hence, Petitioner did not make a reasonable effort to preserve his employment in that he did not allow Employer an opportunity to address his complaints and concerns. Therefore, we must conclude that Petitioner voluntarily quit his employment without cause of a necessitous and compelling nature.6

Accordingly, the order of t he Board, dated February 6, 2004, affirming the decision of the Referee, is affirmed.

JOSEPH F. McCLOSKEY, Senior Judge

O R D E R AND NOW, this 1st day of October, 2004, t he order of the Unemployment Compensation Board of Review, dated February 6, 2004, affirming the decision of an Unemployment Compensation Referee, is hereby affirmed.

JOSEPH F. McCLOSKEY, Senior Judge

1. Petitioner also complains that he did not have the entire transcript of the testimony of his unemployment compensation hearing available to him, and that it contained inaccuracies. This Court has received and reviewed the entire transcript of the proceeding. We conclude that it reliable and sufficient for our purposes of review.
2. In August, 2003, Petitioner was given th e task of working on a floor. Id. at 13. When he removed the floor tile and began grinding, he discovered a black substance which he suspected could contain asbestos. Id. at 13-14. This caused Petitioner to be come concern ed about what might be occurring at the work site, so he began collecting samples. Id.
3. Petitioner testified that the lead man told Petitioner that it would be written up as a slip, not a fall from a ladder. Id. He speculated that this was done for purposes of insurance. Id. On cross-examination, Petitioner testified that safety harnesses were available during some phases of the project, but he chose not to use them . Id. at 26-27. Also, four stairwells with temporary handrails were available for use by Petitioner. Id. at 27-29. Further, Petitioner acknowledged that he did not witness the incident involving his co-worker. Id. at 34.
4. Additionally, Petitioner testified that around January 15, 2003, Employer requested that he and other employees work on the West Perry Middle School project over a weekend without pay. Id. at 9. He rejected the request. Id. The following Monday, he was asked to report to a job site in Williamsport, which was located quite a way from his house, to do the exact same task that was being performed at the West Perry Middle School. Id. He said that after the request for free work was made that the three employees located close to the West Perry Middle School were sent to jobs further from their homes. Id. at 9-10. Instead of accepting the request to work in Williamsport, Petitioner asked for a layoff, which was granted. Id. at 10. During the layoff, he would occasionally work one day here and there. Id. He was called back to a full-time position in March or April of 2003. Id. Testimony of cross-exam ination suggested that the architect and owner had asked if employees of Employer would volunteer to move furniture as a donation to the school. Id. at 25. Testimony on cross-examination also revealed that it was not uncommon for Petitioner to request a lay-off during winter months and for Employer to grant that request. Id. at 31-32. Testimony on cross-examination further revealed that Employer was moving from phase I to phase II of the project and would require less manpower, but that Petitioner believed that he should have been permitted to work closer to home. Id. at 25.
5. It is unclear whether Claimant delivered the samples before or after he quit his employment.
6. As to Petitioner's remaining arguments, we note that in determining whether a claimant is entitled to unemployment compensation benefits, we must apply the law. We do not apply individualized notions of ethical considerations. Also, while Petitioner may not be satisfied with the services rendered by his attorney, proper recourse is not through an unemployment compensation appeal.