IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Community Charter School, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 14 C.D. 2021

Respondent : Submitted: July 15, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: October 3, 2022

Chester Community Charter School (Employer) petitions this Court for 

review of the Unemployment Compensation (UC) Board of Review’s (UCBR) 

December 14, 2020 order affirming the Referee’s decision that David L. Rudnick

(Claimant) was not ineligible for UC benefits under Section 402(e) of the UC Law 

(Law).1 Employer presents two issues for this Court’s review: (1) whether the 

UCBR erred by failing to give weight to Employer’s hearsay evidence that was 

admitted without objection and corroborated; and (2) whether the UCBR erred in 

concluding, despite the competent evidence presented, that Employer failed to meet 

its burden of proof. After review, this Court affirms.

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

802(e) (referring to willful misconduct).
2

Employer employed Claimant as a full-time teacher beginning August

14, 2019. Employer has a code of conduct/policy that prohibits, in part, 

inappropriate remarks or comments to employees or students. Claimant was aware 

of Employer’s policy. On November 14, 2019, Employer’s counselor reported to its 

Principal, Nicole Patterson (Principal), that Claimant allegedly called students 

idiots. Employer suspended Claimant pending an investigation. On November 20, 

2019, Employer discharged Claimant because he called students idiots. 

Claimant applied for UC benefits. On March 30, 2020, the Altoona UC 

Service Center determined that Claimant was ineligible for UC benefits under 

Section 402(e) of the Law. Claimant appealed, and a Referee held a hearing on May 

12, 2020, which Claimant did not attend. On May 13, 2020, the Referee reversed 

the UC Service Center’s determination and found Claimant eligible for UC benefits 

under Section 402(e) of the Law because Employer failed to meet its burden of 

proving Claimant committed willful misconduct. Employer appealed to the UCBR, 

which affirmed the Referee’s decision. Employer appealed to this Court.2

Initially, 

Section 402(e) of the Law provides that an employee is 

ineligible for [UC] benefits when his unemployment is due 

to discharge from work for willful misconduct connected 

to his work. The employer bears the burden of proving 

willful misconduct in a[] [UC] case. Willful misconduct 

has been defined as (1) an act of wanton or willful 

disregard of the employer’s interest; (2) a deliberate 

violation of the employer’s rules; (3) a disregard of 

standards of behavior which the employer has a right to 

2

“‘Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether the findings of fact were unsupported 

by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa. 

Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth. 

2018).
3

expect of an employee; or (4) negligence indicating an 

intentional disregard of the employer’s interest or a 

disregard of the employee’s duties and obligations to the 

employer.

Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)

(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev., 

755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)). 

Where willful misconduct is based upon the violation of a 

work rule, the employer must establish the existence of the 

rule [and] its reasonableness, and that the employee was 

aware of the rule. Once employer meets this burden, the 

burden shifts to the claimant to prove that the rule was 

unreasonable or that he had good cause for violating the 

rule.

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26 

A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). Ultimately, “[t]he 

question of whether conduct rises to the level of willful misconduct is a question of 

law to be determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105 

A.3d 839, 844 (Pa. Cmwlth. 2014).

Employer first argues that the UCBR erred by failing to give weight to 

Employer’s hearsay evidence that was admitted without objection and corroborated

by other competent evidence. Employer cites Bell Beverage v. Unemployment 

Compensation Board of Review, 49 A.3d 49 (Pa. Cmwlth. 2102), to support its 

position.

The law is well established that “in [UC] proceedings, hearsay evidence 

admitted without objection will be given its natural probative effect and may support 

a finding of the [UCBR] as long as it is corroborated by other competent evidence

in the record.” Id. at 55 (emphasis added). In Bell, the evidence consisted of the 

employer’s testimony that, on two separate occasions, a private investigator 

observed one of the employer’s drivers unloading product into his home while the 
4

claimant was assigned to the truck. The employer further testified that, on both 

occasions, he telephoned the claimant as the thefts were occurring. The first time, 

the employer immediately telephoned the claimant’s cell phone, but the claimant did 

not answer. When the employer asked the claimant about it later, the claimant said 

he was sleeping in the truck. The second time, the claimant answered his phone and 

said that he and the driver were on the expressway and would be back to the 

warehouse in a few minutes. In addition, the employer presented the private 

investigator’s letter written to the employer describing what he had observed. The 

employer also attempted to offer into evidence the private investigator’s digital 

video disc (DVD) footage, but the Referee did not accept it into evidence because 

the parties agreed that the claimant did not appear on the DVD. The claimant did 

not appear at the hearing. The Referee concluded that the claimant committed 

willful misconduct.

The claimant appealed to the UCBR. The UCBR directed the Referee 

to schedule another hearing for the sole purpose of allowing the employer to submit 

its DVD evidence. Thereafter, the UCBR held that the claimant was eligible for UC 

benefits. With regard to the employer’s evidence, the UCBR considered only the 

testimony regarding the DVD, determining that any additional testimony was 

outside the scope of the remand hearing. The UCBR concluded that the employer’s 

testimony concerning information it received from its private investigator was 

hearsay, and concluded that the claimant was eligible for UC benefits. The employer 

appealed to this Court.

This Court held that the observations conveyed by the private 

investigator over the telephone to the employer were reliable because they were 

contemporaneously made as the event was unfolding. Thus, the employer’s 

testimony concerning the private investigator’s statement was admissible under the 

present sense impression hearsay exception, and the UCBR erred in rejecting the 
5

employer’s testimony on this subject as inadmissible hearsay. Further, this Court 

determined that the letter was properly admitted into evidence and the UCBR should 

have considered it because it was unobjected-to hearsay corroborated by the 

employer’s testimony. This Court ultimately remanded the matter to the UCBR for 

a new decision containing additional findings of fact based on the existing record.

Here, the Referee admitted into evidence without objection Employer’s 

Principal’s testimony concerning her investigation of Claimant’s purported 

misconduct. Although the Principal did not hear Claimant call a student an idiot, 

she testified about her investigation of the matter. Employer contends that the

information the Principal gathered corroborated the allegations made against 

Claimant. Specifically, the Principal explained that she followed the normal 

protocol for conducting an investigation (i.e., that she gathered statements and spoke 

with people who were present in the classroom), and learned from the classroom 

assistant that, in close time and space, the assistant heard a student say Claimant had 

called the student an idiot.

3 The Principal also described her firsthand experiences 

of Claimant’s prior Code of Conduct violations, and her prior counseling and 

discipline of Claimant for same. However, none of these statements are competent 

evidence that Claimant called a student an idiot, as they are not firsthand testimony 

or admissible non-hearsay evidence that he did so. Accordingly, Bell is inapposite.

Employer asserts that Claimant’s May 11, 2020 letter to the Referee’s 

Office, which was admitted into the record, corroborated the Principal’s hearsay 

testimony that Claimant engaged in the prohibited conduct. Claimant’s letter

declared:

This letter is to inform [sic] I cannot make the hearing 

scheduled for May 12[, 2020,] at 2:00 p[.]m[.] because of 

3 The Principal’s statement that the assistant heard the student say that Claimant called him 

an idiot is, essentially, hearsay upon hearsay.
6

my work schedule. All I was looking for [sic] 

unemployment funds, yes I am guilty of what[]ever 

[Employer] is claiming. If you need to speak with me, I 

am available at [redacted]. Thank you. 

Reproduced Record (R.R.) at 148a (emphasis added). However, Claimant’s 

admission to whatever is not an admission to calling a student an idiot. See Bailey 

v. Unemployment Comp. Bd. of Rev., 597 A.2d 241, 243 (Pa. Cmwlth. 1991) (“At 

no time did [the c]laimant testify as to the specific language which he directed at the 

terminal supervisor, but only acknowledged that he used abrasive language.” “As 

such, the Referee had no substantial evidence upon which to make a finding that [the 

c]laimant had directed abusive language towards the terminal supervisor[.]).” 

Accordingly, Claimant’s letter is not competent evidence to corroborate the 

Principal’s testimony.

Employer also insists that Claimant’s admissions in his UC 

Questionnaire corroborated the Principal’s hearsay testimony that Claimant engaged

in the prohibited conduct. However, the UC Claimant Questionnaire provided: 

“Please indicate the reason you were given for being discharged or suspended,” to 

which Claimant checked the box “Rule Violation.” R.R. at 9a (emphasis added). In 

answer to the next question: “What was the rule that you were accused of violating,” 

Claimant wrote “#35 inappropriate remarks.” Id. (emphasis added). Clearly, 

Claimant was only responding that Employer accused him of, and discharged him 

for, violating the rule, not that he committed such violation. 

Based on this Court’s review, the UCBR properly disregarded 

Employer’s hearsay evidence that was admitted without objection because it was not 

“corroborated by other competent evidence in the record.”4 Bell, 49 A.3d at 55. 

Without such evidence, Employer failed to meet its burden of proving Claimant 

4 Because this Court determined that competent evidence was not admitted into the record, 

Employer’s second issue is moot.
7

committed willful misconduct. Accordingly, this Court is constrained to affirm the 

UCBR’s order.

For all of the above reasons, the UCBR’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Community Charter School, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 14 C.D. 2021

Respondent :

O R D E R

AND NOW, this 3

rd day of October, 2022, the Unemployment 

Compensation Board of Review’s December 14, 2020 order is affirmed.

_________________________________

ANNE E. COVEY, Judge