IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle VonNieda, :
Petitioner :
:
v. :
:
Unemployment Compensation : Board of Review, : No. 468 C.D. 2025 Respondent : Submitted: June 16, 2026
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: August 28, 2026
Michelle VonNieda (Claimant), pro se, petitions for review of the March 14, 2025 order of the Unemployment Compensation Board of Review (Board),1 which affirmed the determination of the referee denying Claimant unemployment compensation (UC) benefits due to Claimant’s willful misconduct
1 Claimant’s petition for review erroneously cites April 11, 2025, as the Board’s final order date. Pet. for Rev. at 1; see Certified Record (C.R.) at 361. Further, we note that there is a discrepancy as to the Board’s final decision date in the record. The original final decision was dated March 13, 2025. C.R. at 361. However, two subsequent mailings expressly stated that the decision of the Board became final on March 14, 2025, when it was “issued” and “mailed.” Id. at 376 & 378. This Court has determined that the appeal period commences on the date in which a decision is “placed into a properly addressed, stamped envelope and deposited in a proper place for receipt of mail.” Raichle v. Unemployment Comp. Bd. of Rev., 535 A.2d 694, 696 (Pa. Cmwlth. 1988); see also Pa.R.A.P. 108(a)(1) (stating that “the day of entry shall be the day . . . the office of the government unit mails or delivers copies of the orders to the parties”). Therefore, we refer to the subsequent March 14, 2025 mailing date as the Board’s final decision date.
under Section 402(e) of the Pennsylvania Unemployment Compensation Law (UC Law).2 Upon review, we affirm.
I. Background
Claimant was employed at an apartment complex as a part-time senior property manager with NDC Services LLC (Employer) from August 13, 2010, through December 4, 2023. Certified Record (C.R.) at 323. Claimant was paid an hourly wage. Id. at 361. Her work schedule had set hours of 10:00 a.m. to 2:00 p.m. on Mondays, Wednesdays, and Fridays, and Claimant was required to be in-office during those hours to be available for tenants, applicants, and walk-ins. Id. at 203- 04 & 323. Any changes to Claimant’s work schedule had to go through Employer. Id. at 206 & 323.
While Claimant indicated to Employer that she typically worked the job maximum of 30 hours per week, Employer began receiving complaints from tenants that Claimant was unavailable and non-responsive, and Claimant’s supervisor had difficulty reaching her during office hours. C.R. at 207-08 & 323. Employer hired a private investigator to determine whether Claimant was actually working the hours that she was submitting on her timesheets. Id. at 323. The investigation involved installing cameras throughout the apartment complex premises to observe when Claimant and her Land Rover vehicle were onsite. Id. at 20 & 234. Through the investigation, the private investigator determined that during the week of October 23, 2023, Claimant worked less than the 30 hours she submitted on her timesheet; she was only visible onsite for approximately 22 hours and was not present in her
2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
3
office for her entire mandatory Monday, Wednesday, and Friday shifts during that week. Id. Employer received the investigation report in mid- to late November 2023, and Claimant was terminated on December 5, 2023, for theft of time and failure to perform her job. Id.
Claimant filed an application for UC benefits on December 5, 2023, after the termination of her employment. C.R. at 2 & 6. On December 27, 2023, the Department of Labor and Industry (Department) found that Claimant was ineligible for UC benefits because Claimant’s discharge for theft of time indicated that there was willful misconduct involved in her termination pursuant to Section 402(e) of the UC Law, 43 P.S. § 802(e).3 Id. at 44. Claimant appealed the Department’s determination, and a hearing was scheduled with a referee for June 20, 2024.4 Id. at 162. The hearing was held via telephone. Id. at 162 & 194.
During the June 20, 2024 telephone hearing, Claimant, Claimant’s sole witness—coworker Jennifer Gehman (Gehman)5—and three Employer witnesses appeared. C.R. at 193. The parties presented conflicting testimony as to whether Claimant was actually present on the apartment complex premises during her mandatory work hours and whether Claimant had knowledge of the policy requiring her to notify her supervisor of any schedule changes. See id. at 206-08 & 210-13.
3 Under Section 402(e), an employee shall be ineligible for compensation for any week “[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is ‘employment’ as defined in this act[.]” 43 P.S. § 802(e).
4 The original Notice of Hearing was scheduled for April 30, 2024. C.R. at 89. However, Employer and Claimant each requested a continuance, both of which were granted. See id. at 104 & 155.
5 Gehman was also simultaneously investigated for theft of time. See C.R. at 20-31.
4
Employer introduced the private investigator’s report into evidence, which Claimant initially objected to on “best evidence” grounds.6 Id. at 202. The referee overruled Claimant’s objection due to the relaxed rules of evidence in UC hearings. Id.; see also 2 Pa.C.S. § 505.
Employer’s private investigator specifically testified that several cameras showed that Claimant’s Land Rover arrived late, if at all, at the complex on several occasions during the week of October 23, 2023, when Claimant reported working 30 hours. C.R. at 217-19 & 323. This testimony was based on the private investigator’s personal review of relevant portions of the continuous surveillance footage.7 See id. at 217. On cross-examination, Claimant raised a late hearsay objection to the private investigator’s report after the report had already been admitted. Id. at 220. The referee overruled Claimant’s late objection. Id.
During Claimant’s personal testimony, she disputed the private investigator’s testimony by arguing that her Land Rover’s absence from the premises was not dispositive of her own absence because she allegedly drove several different vehicles to work during the week of October 23, 2023.8 C.R. at 262-64. Claimant
6 Generally, the best evidence rule provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless [the Pennsylvania Rules of Evidence], other rules prescribed by the Supreme Court, or a statute provides otherwise.” Pa.R.E. 1002.
7 The private investigator testified that a technician first reviewed approximately 40,000 minutes of the continuous surveillance footage and created timestamps for the private investigator’s review. C.R. at 220. These timestamps were created based on where the technician caught significant movement in the video feed. Id.
8 Claimant alleges that she had car trouble during the weeks where the private investigatory cameras were installed. C.R. at 263. As a result, she was allegedly occasionally driving her husband’s white Jeep, a blue Ford F150 truck, or a red Ford Fusion. Id. Although Claimant’s testimony was unclear, both parties agree that her Land Rover was caught on camera several times during the investigatory period in October. Id.
5
intended to have Gehman testify to Claimant’s ownership of three other vehicles. Id. at 262. However, Gehman never testified because Claimant admitted that Gehman’s testimony was cumulative and would not contribute anything new to the record.9 Id. at 269. Claimant also admitted to hiding from residents who showed up at the office so she could “get some work done.” Id. at 249.
Based on the testimony, the referee determined that Claimant was properly terminated for willful misconduct because Claimant’s conduct “was inimical to [Employer’s] interests and beneath the standards an employer has the right to expect of its employees.” C.R. at 324. Thus, Claimant was ineligible for benefits under Section 402(e) of the UC Law, 43 P.S. § 802(e). Id. Claimant appealed to the Board, which affirmed the referee’s determination by order dated March 14, 2025, including the following relevant findings of fact:
5. The [C]laimant’s schedule was 10 a.m. – 2 p.m., Mondays, Wednesdays and Fridays.
6. The [C]laimant was required to be in-office during those hours, and be present and available for tenants, applicants and walk-ins.
...
8. The [C]laimant’s supervisor held weekly meetings . . . and explained the need [for employees] to enter their time correctly and notify the supervisor of any adjustments to time that would be needed.
9 Claimant’s testimony did not originally include the three different vehicles she purportedly drove to work. See C.R. at 262. However, when Claimant argued that Gehman’s testimony was going to attest to such, the referee requested that Claimant herself testify about the different vehicles she drove and why. Id. at 262-63. This detailed testimony spans approximately eight pages of the record. See id. at 262-69.
6
9. The [C]laimant was permitted to work additional hours and was typically submitting time sheets for 30 hours worked per week.
10. Any change to the [C]laimant’s schedule or hours had to go through [Employer] for approval.
11. [Employer] began receiving multiple complaints about the [C]laimant being unavailable and unresponsive to contractors and tenants[.]
12. The [C]laimant hid from tenants during her shifts.
...
15. During the week beginning Monday, October 23, the [C]laimant reported she worked approximately 30 hours.
16. The [C]laimant was on the premises a total of 21-22 hours. The [C]laimant was not present at all during her scheduled shift on Monday, October 23. The [C]laimant was present for one hour and 39 minutes during her scheduled shift on Wednesday.
17. The [C]laimant did not notify her supervisor that she was not present for work, nor did she request a change in her schedule.
Id. at 361-62. On March 17, 2025, Claimant requested reconsideration of the Board’s decision, which the Board denied. Id. at 373 & 378. Claimant then timely petitioned for review in this Court.
7
II. Issues
Before this Court,10 Claimant sets forth several evidentiary arguments in support of her eligibility for UC benefits. Claimant’s Br. at 4. Claimant first maintains that the private investigator’s report and testimony constituted “inadmissible hearsay evidence” which could not support the Board’s finding of willful misconduct. Id. at 7; see 43 P.S. § 802(e). Claimant similarly asserts that the referee’s findings of fact and conclusions of law were not supported by substantial evidence because the referee’s central findings rested on hearsay evidence. Claimant’s Br. at 9. Claimant further maintains that Employer failed to provide substantial evidence to satisfy its burden of proving willful misconduct because hearsay is not credible, firsthand evidence. Id. at 8-9. Finally, Claimant argues that Gehman was a material witness and the referee’s failure to hear Gehman’s testimony deprived Claimant “of the opportunity to challenge critical factual assertions [which] undermined the fairness of the proceedings.” Id. at 8.
The Board argues that the private investigator’s report constituted substantial evidence that Claimant engaged in theft of time from Employer, which amounted to willful misconduct under Section 402(e) of the UC Law, 43 P.S. § 802(e). Board’s Br. at 1. The Board also asserts that Claimant was afforded a fair hearing because she agreed during the hearing that Gehman’s testimony was unnecessary. Id.
10 This Court’s review of the Board’s order is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact were supported by substantial evidence. Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197 (Pa. Cmwlth. 2008) (citing Sheets v. Unemployment Comp. Bd. of Rev., 708 A.2d 884 (Pa. Cmwlth. 1988)).
8
III. Discussion
Claimant’s first three issues depend on whether substantial evidence existed to support a finding of willful misconduct, based on Claimant’s assertion that the evidence at issue was inadmissible hearsay. We address those issues together.
A. Substantial Evidence
1. Burden of Proof
The burden of proving willful misconduct under Section 402(e) of the UC Law, 43 P.S. § 802(e), rests with the employer. Adams v. Unemployment Comp. Bd. of. Rev., 188 A.3d 592, 597 (Pa. Cmwlth. 2018). While employers generally must prove the existence of a work policy to support a finding of willful misconduct, “the existence of a specific rule is not necessary where the employer has a right to expect a certain standard of behavior, that standard is obvious to the employee, and the employee’s conduct is so inimical to the employer’s interests that discharge is a natural result.” Ellis v. Unemployment Comp. Bd. of Rev., 59 A.3d 1159, 1162 (Pa. Cmwlth. 2013).
In this case, the Board found that Claimant knowingly submitted timesheets for time when she was not reporting to work, which fell below the standard of behavior that Employer had a right to expect. C.R. at 364; see also Ellis, 59 A.3d at 1162. These findings were supported by the private investigator’s testimony that several cameras showed Claimant’s Land Rover arriving late, if at all, at the complex on several occasions during the week of October 23, 2023, when Claimant reported working 30 hours. Id. at 217-19 & 323.
Once the employer has met its burden, “the burden of proof shifts to the employee to prove that she had good cause for her actions.” Chapman v.
9
Unemployment Comp. Bd. of Rev., 20 A.3d 603, 607 (Pa. Cmwlth. 2011). The employee establishes good cause where she can show that her actions were justified or reasonable under the circumstances. Id.
To attempt to establish good cause, Claimant offered vague explanations for why she would not have been visualized on the private investigator’s surveillance footage. She mainly emphasized that the surveillance footage focused only on her Land Rover while she occasionally drove four different vehicles to work. See C.R. at 262. She also attested that she occasionally ran errands for Employer that involved leaving the apartment premises. Id. at 244-45. However, Claimant could not provide specific dates or times to support either argument. Id. at 245-46 & 265-68. Due to Claimant’s vague testimony, the Board rejected Claimant’s explanations concerning her multiple vehicles and off-site errands. Id. at 364. Therefore, Claimant failed to establish good cause for her absenteeism and failure to perform her requisite duties. Id.; see also Chapman, 20 A.3d at 607. The Board also resolved the conflict in testimony in favor of Employer. C.R. at 364. Such credibility determinations are within the Board’s exclusive purview and are beyond the review of this Court. See Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1385 (Pa. 1985).
2. Hearsay Evidence
Claimant argues, however, that the private investigator’s testimony and report were hearsay and thus not substantial evidence to prove willful misconduct. Claimant’s Br. at 7-9. Hearsay is “an out of court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement.” Bailey v. Unemployment Comp. Bd. of Rev., 597 A.2d 241, 243 n.3 (Pa.
10
Cmwlth. 1991); see Pa.R.E. 801(c). A “statement” is defined in the Pennsylvania Rules of Evidence as an oral or written assertion, “or nonverbal conduct, if the person intended it as an assertion.” Pa.R.E. 801(a). If the conduct does not intend to convey a message, the conduct is non-assertive and is not hearsay. See Commonwealth v. Lewis, 623 A.2d 355, 357 (Pa. Super. 1993).11 Further, testimony based on an individual’s personal knowledge and observations is not hearsay. See Baird v. Unemployment Comp. Bd. of Rev., 372 A.2d 1254, 1257 (Pa. Cmwlth. 1977).
a. Private Investigator’s Report The portions of the private investigator’s report which contained written descriptions and conclusions offered for their truth constituted hearsay evidence. The surveillance images contained within the report are generally not hearsay—as they are not statements—but the accompanying timestamped, written descriptions as to when Claimant was entering and exiting the apartment complex were introduced to prove that Claimant was not at work during the hours she reported on her timesheets. C.R. at 21-30 & 215-17.
However, it is well settled that hearsay evidence is incompetent to support a finding of the Board only if it is “properly objected to.” Walker v. Unemployment Comp. Bd. of Rev., 367 A.2d 366, 370 (Pa. Cmwlth. 1976). Where hearsay evidence is admitted without objection, the evidence “will be given its natural probative effect and may support a finding of the Board, if it is corroborated
11 Although not binding on this Court, decisions of the Superior Court may be cited as persuasive where they address analogous issues. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
11
by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.” Id. (emphasis in original).
Here, Claimant failed to properly object to the private investigator’s report because she raised an objection only on best evidence grounds, not on hearsay grounds. C.R. at 202. While competent evidence is still required in administrative hearings, such hearings are not generally bound by the technical rules of evidence. See DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298 (Pa. Cmwlth. 1997). Consequently, Employer was permitted to attempt to satisfy its burden of proof to establish Claimant was terminated for willful misconduct without presenting the actual surveillance footage. Knepp v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 17 C.D. 2010, filed December 7, 2010).12 Moreover, while Claimant raised a hearsay objection later in the proceedings, that objection was not proper because it was untimely, the private investigator’s report having already been admitted and relied upon by Claimant herself in her cross-examination of several Employer witnesses. See C.R. at 213-17 & 220; see also Pifer v. Unemployment Comp. Bd. of Rev., 639 A.2d 1293, 1295 n.4 (Pa. Cmwlth. 1994) (claimant’s failure to object to a referee’s hearsay determination at the evidentiary hearing constituted waiver of that legal issue); Phila. Elec. Co. v. Commonwealth, 565 A.2d 1246, 1249 (Pa. Cmwlth. 1989) (agreeing that a “specific objection” cannot later be recharacterized as a separate objection). Thus, the private investigator’s report was properly admitted and may be given its natural probative effect to support the findings of the Board. Walker, 367 A.2d at 370.
12 Under Section 69.414(a) of the Commonwealth Court’s Internal Operating Procedure, unreported decisions of the Commonwealth Court issued after January 15, 2008, may be cited for their persuasive value. 210 Pa. Code § 69.414(a).
12
A thorough review of the hearing transcript also indicates that the Board’s findings of fact were substantially supported by separate, competent, nonhearsay evidence, including the private investigator’s testimony. See C.R. at 361- 62. Accordingly, the private investigator’s report was properly relied upon to support the Board’s findings.
b. Private Investigator’s Testimony In this case, the private investigator’s testimony was not hearsay because the testimony was based on his own knowledge of the events at issue due to his personal observation of the surveillance footage of the apartment complex. In Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1161 (Pa. Cmwlth. 2012), a police officer was terminated for willful misconduct for use of excessive force. The police chief was not present for the misconduct incident but instead viewed a video surveillance tape and provided testimony describing what he saw on the video. Id. at 1162-63. This Court held that the surveillance video was non-assertive because it captured only physical conduct; therefore, the police chief’s testimony as to what he objectively observed on the video was not hearsay because the testimony pertained to non-assertive conduct. Id. As such, the Board was required to make a credibility determination as to the truth of the testimony, and it found the police chief’s testimony credible. Id. at 1164 (citing Unemployment Comp. Bd. of Rev. v. Wright, 347 A.2d 328, 329 (Pa. Cmwlth. 1975)); see also Narmbaye v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 1003 C.D. 2015, filed Mar. 9, 2016) (holding, consistent with Yost, 42 A.3d at 1164, that testimony regarding what a witness objectively saw on a video tape does not constitute hearsay).
13
Instantly, the private investigator set up cameras to continuously monitor all entrances and exits of the apartment complex to observe Claimant’s employment activity. C.R. at 20 & 234. Employer provided the private investigator with photos of Claimant and Claimant’s Land Rover vehicle so that the private investigator could verify Claimant’s identity on the surveillance footage. Id. at 217- 18. Although a technician first identified relevant portions of the footage for review, the private investigator personally reviewed portions that identified Claimant or her vehicle leaving the apartment premises and testified only to what he himself observed. See id. at 220. During the hearing, the private investigator’s testimony was limited to the surveillance setup and his observations of Claimant entering and exiting the apartment complex on the footage. See id. at 21-30 & 216-38. The testimony did not constitute hearsay evidence because it did not concern a statement, but rather a description of physical, non-assertive conduct, specifically Claimant entering and exiting the apartment complex. Yost, 42 A.3d at 1162-63; Narmbaye (Pa. Cmwlth., No. 1003 C.D. 2015, filed Mar. 9, 2016). As such, both the referee and Board were entitled to consider the testimony and make credibility determinations as to its truth. Yost, 42 A.3d at 1164.
The private investigator’s credited testimony constituted substantial evidence that supported both the Board’s and referee’s findings that Claimant submitted time sheets for time she was not working, and Claimant failed to rebut that evidence with credible testimony. See C.R. at 363-64.
Further, the referee and Board did not solely rely on the private investigator’s testimony when determining that Claimant was ineligible for UC benefits. Specifically, the referee determined that Claimant’s own admission that she “hid from tenants” during mandatory work hours highlighted conduct that
14
contravened “the most basic aspect of her property manager position.” Id. at 324. The Board also credited Employer’s testimony that all changes to Claimant’s work schedule had to go through Employer for approval, which conflicted with Claimant’s uncredited attestation that she was permitted to come and go on her own terms without notice to Employer. Id. at 364. Consequently, the competent, substantial evidence provided by Employer supported both Employer’s burden of proof and the Board’s final determination that Claimant’s conduct was inimical to Employer’s interests. Id.; see also Ellis, 59 A.3d at 1162. Accordingly, Claimant is ineligible for UC benefits under Section 402(e) of the UC Law, 43 P.S. § 802(e).
B. Right to a Full and Fair Hearing The essential elements of procedural due process are “notice and an opportunity to be heard in a full and fair hearing before an impartial decision maker.” Leone v. Unemployment Comp. Bd. of Rev., 885 A.2d 76, 80 (Pa. Cmwlth. 2005). When a party is not represented by counsel, a referee should advise the unrepresented party as to his rights, aid him in examining and cross-examining witnesses, and assist in a manner that is compatible with the impartial discharge of the referee’s official duties. 34 Pa. Code § 101.21(a). This Court has recognized that “a UC referee discharges his due process obligation to an uncounseled claimant by informing the claimant of his right to counsel, his right to offer witnesses and his right to cross-examine adverse witnesses.” Frimet v. Unemployment Comp. Bd. of Rev., 78 A.3d 21, 25 (Pa. Cmwlth. 2013).
Claimant argues that the referee denied Claimant’s request to call Gehman, a material witness, which violated Claimant’s procedural due process right to a full and fair hearing. Claimant’s Br. at 8. However, that argument is plainly
15
refuted by the hearing transcript. During the hearing, Claimant expressed intent to call Gehman to testify “to other vehicles that [Claimant] would be driving to the property[.]” C.R. at 262. Claimant then, at the referee’s request, provided her own lengthy testimony regarding her access to and use of three different vehicles other than the Land Rover identified in the private investigator’s report and testimony. Id. at 263-68. After hearing this testimony, the referee specifically asked Claimant if there was anything else she wanted to add that she hadn’t yet testified to and Claimant declined. Id. at 268. The referee then asked Claimant whether Gehman’s testimony could provide anything new or whether it “would only be cumulative to what [Claimant] already testified.” Id. at 269. Claimant agreed on the record that Gehman’s testimony was cumulative. Id.
The referee did not violate Claimant’s due process rights by limiting the hearing to noncumulative testimony. See Zukoski v. Unemployment Comp. Bd. of Rev., 525 A.2d 1279, 1280 (Pa. Cmwlth. 1987) (holding that a fair hearing does not require a referee to subpoena witnesses that would “provide merely cumulative testimony concerning [a] claimant’s version of the facts”). Further, the materiality of a witness’s testimony depends on whether that testimony would affect the outcome of the case. Hussey Copper, Ltd. v. Unemployment Comp. Bd. of Rev., 718 A.2d 894, 899 (Pa. Cmwlth. 1998) (holding that the only “impartial” witness was material to establish whether claimant had a necessitous or compelling reason to quit her employment). Here, the Board did not credit Claimant’s multi-vehicle testimony and was not required to permit admittedly cumulative testimony on the issue. See C.R. at 364.
Moreover, Gehman’s testimony would not have negated Claimant’s admission that she “hid from tenants,” which the referee and Board weighed heavily
16
in finding Claimant ineligible for benefits. Id. at 324 & 364. As such, Claimant was not deprived of her due process right to a full and fair hearing.
IV. Conclusion
Based on the foregoing discussion, the March 14, 2025 order of the Board is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle VonNieda, :
Petitioner :
:
v. :
:
Unemployment Compensation : Board of Review, : No. 468 C.D. 2025 Respondent :
ORDER
AND NOW, this 28th day of August, 2026, the March 14, 2025 order of the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge