IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Community Charter School

, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review

, : No. 14 C .D. 20 2 1

Respondent : Submitted: Ju ly 1 5 , 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) peti ti ons this Co u rt 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) o f the UC L a w (Law). 1 Employer presents two issues for this Court’s review: (1) whether the

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

admitted without objection an d corroborated ; and (2) whether the UCBR erred in
concluding, despite the competent evidence presented, that E mployer 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 t eacher beginning August
14, 2019 . E mployer has a code of conduct / policy that prohibits , in part,
inappropriate remarks or comments to employees or students. C laimant was aware

of E mployer ’ s policy. On November 14, 2019, Employer’s c ounselor reported to its
Principal

, Nicole Patterson (Principal)

, that C laimant allegedly called students

idiots. Employer suspend ed Claimant pending an investigation. On November 20

, 2019, E mployer discharged C laimant because he called students idiots.

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

Service Center determined that Claim a nt 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, t he Referee reversed
the UC Service Center’s determination and found Claimant eligible for UC b enefits
under Section 402(e) of the Law because Employer failed to meet its burden of
proving Claimant committed willful misconduct . Employer appealed to the UCB R,

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] c ase. 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 e mployee; 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 omitt ed) (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 “ i n [UC] proceedings, hearsay evidence
admitted without obje ction 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 the4

c laimant was assigned to the truck. The employer further testified that

, on both

occasions

, he telephoned the claimant as the theft s w ere occurring

. The first time,
the employer immediately telephoned the c laimant ’s cell phone, but the c laimant did

not answer. When the employer asked the claimant about it later, the c la imant said
he was sleeping i n the truck. The second time, the c laimant 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
investig ator’s letter written to the employer describing what he had observed. T he
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. T he UCBR directed the R eferee
to schedule another hearing for the sole purpose of allowing the e mployer to submit

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

benefits. With regard to the e mployer ’ 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 e mployer ’ s testimony concerning information it received from its private investigator was
hearsay , and concluded that th e claimant was eligible for UC benefits . The employer
appealed to this Court.

This Court held that t he observations conveyed by the private
investigator over the telephone to the employer were reliable because they were
contemporaneously made as the even t 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 the5

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 purporte d

misconduct

. Although t he Principal did not hear Claimant call a student an idiot,

she testif ied about her investigation of the matter. Employer contends that t he

information t he 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 sh e gathered statements and spoke
with people who were p resent in the cla ssroom )

, 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 T he Principal also described her firsthand experiences

of Claimant’s prior Code of Conduct viola tions , 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 the y are no t 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 C laimant engage d in the prohibited conduct

. Claim a nt’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 spea k 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 2 41, 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 whic h 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 h is UC
Questionnaire corroborated the Principal ’ s hearsay testimony that C laimant engage d

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

“Please indicate the reason you were given for being dischar g ed or suspended,” to

which Claim a nt 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). Cl early,

Claimant wa s 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 ad m itted into the record, Employer’s second issue is moot.7

committed wi llful 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, JudgeIN 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 , 20 2 2

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

___________________________ ______ ANNE E. COVEY, Judge