The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Darby, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1084 C.D. 2024
Respondent : Submitted: October 9, 2025
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 19, 2025
The Township of Darby (Employer) petitions for review of an order
(Order) of the Unemployment Compensation (UC) Board of Review (Board) that
affirmed a Referee’s reversal of an order denying Patrick Trio’s (Claimant) right to
receive UC benefits. The Referee concluded that Claimant offered credible and
competent testimony to justify a determination that he was discharged and that
Employer failed to sustain its evidentiary burden of proof. The Board determined
that the Referee’s findings were proper and granted the UC benefits to Claimant.1
Upon review, we affirm the Board’s Order.
1
Claimant did not opt to intervene after receiving a Notice to Participate. Reproduced
Record (R.R.) at 188; see also Pennsylvania Rule of Appellate Procedure 1531, Pa.R.A.P. 1531.
We note that, instead of filing a reproduced record with pages numbered as required by
Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P. 2173, Employer filed as its reproduced
record a copy of the certified record and used the pagination of the certified record as the page
I. Background
This case reflects a conflicting account of the reported events. We
primarily address the factual record established in the Referee hearing (Hearing) but
acknowledge the relevant disparities from the pre-hearing submissions.2
Claimant worked part time as a code enforcement officer for Employer
for two years. R.R. at 12. On February 13, 2024, Claimant was reprimanded by his
supervisor, Nicole Whitaker (Whitaker), after several commissioners complained
about Claimant’s investigation of a yard sale permit.3 Id. at 24 & 110. Claimant
contended at the Hearing that the stress of the public reprimand brought on a panic
attack, and he informed Whitaker that he had to leave work as a result. Id. at 24.
Before leaving, Claimant left his work iPad with an employee, stating that he “[did]
not want to be responsible” for it, and turned over notes for the inspections scheduled
for February 13, 2024. Id. at 110-11. Approximately two hours after Claimant’s
departure, Employer emailed Claimant to inform him of his discharge and requested
return of his gas card and work notebook. Id. at 110.
On February 15, 2024, Claimant applied for UC benefits effective
February 11, 2024. R.R. at 4. However, on March 16, 2024, the UC Service Center
issued a “Disqualifying Separation Determination” (Determination), denying
Claimant UC benefits on the grounds of job abandonment without good cause. R.R.
numbers for the reproduced record. For clarity, record cites in this opinion use the page numbers
as they appear in the reproduced record.
2
The Board made no new findings of fact on appeal of the Referee’s decision. See R.R.
139-40.
3
Claimant maintains that he has never engaged in prior problematic conduct, but his
supervisor contends that Claimant received a verbal warning in 2023 for an altercation with a
township resident. R.R. at 31 & 35.
2
at 38. The Determination was made pursuant to Section 402(b) of the Pennsylvania
Unemployment Compensation Law (UC Law),4 43 P.S. § 802(b), which provides
that “an employe shall be ineligible for compensation for any week” “[i]n which his
unemployment is due to voluntarily leaving work without cause of a necessitous and
compelling nature[.]” Id. Claimant subsequently filed a timely appeal from the
Determination to the Board, alleging that he “did not abandon [his] job without
notice” but, rather, was advised by his doctor to “stay away from work for a few
days” after his medication was adjusted. Id. at 53-54.
On April 2, 2024, the Department sent an “Acknowledgment of UC
Appeal to Referee” to Claimant and Employer, specifying that “[e]veryone who is a
party to this appeal will have the opportunity to testify and present witnesses and
evidence during this hearing. It is important that all parties participate and
follow instructions as explained in the Notice of Hearing.” R.R. at 60. The Notice
of Hearing (Notice) was provided on May 3, 2024, informing the parties that a
Referee would be determining the sole issue of whether Claimant voluntarily
terminated his employment at a hearing on May 21, 2024. Id. at 68. The Notice also
included procedural guidelines for available requests, which provided, in pertinent
part:5
Continuance of Hearing —If you cannot attend the
hearing for any reason, you may request a continuance
(postponement) of the hearing. You should do this as
soon as possible as untimely requests may be denied.
Written requests should include the specific reason for the
4
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 751-919.10.
5
A continuance was one of four procedural requests available to the parties. See R.R. at
72.
3
request. The referee will grant this only for “proper cause”
and upon terms that he/she deems proper. If a continuance
is granted, notice of the continuance and a new Notice of
Hearing will follow.
Id. at 72. Employer’s key fact witness, Whitaker, was out of town on the date of the
Hearing. However, as discussed below, the record does not indicate that Employer
requested a continuance. Instead, the Hearing proceeded with witnesses Harry
Dingler and Beatrice Poe for Employer, neither of whom was a firsthand witness to
the incident in question. See R.R. at 101-02. To compensate for the absence of
Whitaker, Employer attempted to submit both Whitaker’s questionnaire and sworn
statement (Statement) as testimony, but both were excluded on hearsay grounds.6
Id. at 105.
After hearing conflicting factual testimony from both parties as to the
circumstances surrounding Claimant’s departure on February 13, the Referee
reversed the decision of the UC Service Center pursuant to Section 402(e) of the UC
Law, determining that Claimant was eligible for UC benefits after Employer failed
to sustain its burden of proof. R.R. at 111.
On May 29, 2024, Employer filed an appeal with the Board, arguing
that Claimant left for personal reasons and violated three policies from the Employee
Handbook. R.R. at 126-27. Employer also argued that the “key person” was
unavailable because she was out of town for a work conference. Id. at 127.
However, upon consideration of the record, the Board adopted and incorporated the
Referee’s findings of fact and conclusions and affirmed the order granting
6
Claimant objected to the introduction of Whitaker’s questionnaire, and the Referee
unilaterally excluded the Statement. See R.R. at 95-96 & 105.
4
Claimant’s UC benefits.7 Id. at 139-40. Employer’s appeal to this Court followed,
challenging the Referee’s alleged denial of a requested continuance8 and the
credibility of Claimant’s medical testimony. Employer’s Br. at 5-6.
II. Issues
Before this Court,9 Employer argues that the Board erred in granting
the Claimant’s UC benefits and raises two issues for review, which we paraphrase
as follows. Employer’s Br. at 5-6.
First, Employer avers that the Referee’s alleged unwillingness to grant
a continuance prejudiced Employer’s case because Employer was unable to provide
firsthand testimony concerning Claimant’s willful misconduct due to the
unavailability of its primary witness.10 Id. at 5. Alternatively, Employer argues that
the Referee should have allowed a submission of the Statement of its primary
witness to give Employer the opportunity to properly present its case and meet its
burden of proof under Section 402(e) of the UC Law, 43 P.S. § 802(e). Id. at 6. This
7
The Board made no new findings of fact on appeal. See R.R. at 139-40.
8
This Court’s review of the record did not reveal the alleged continuance request, and
Employer failed to cite any record evidence of this request.
9
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)). In unemployment compensation cases, the Board is the ultimate factfinder,
and its findings are conclusive on appeal so long as the record, taken as a whole, contains
substantial evidence to support those findings. Hessou, 942 A.2d at 198 (first citing Peak v.
Unemployment Comp. Bd. of Rev., 501 A.2d 1383 (Pa. 1985); and then citing Taylor v.
Unemployment Comp. Bd. of Rev., 378 A.2d 829 (Pa. 1977)).
10
Due to the unavailability of Employer’s primary witness, Employer requests alternative
relief in the form of a remand for further testimony.
5
burden requires Employer to prove that Claimant’s unemployment “is due to
[Claimant’s] discharge or temporary suspension from work for willful misconduct
connected with his work[.]” 43 P.S. § 802(e).
Second, Employer asserts that Claimant’s medical testimony was not
credible and could not support a finding that Claimant did not engage in willful
misconduct. Id. at 6-7.
The Board maintains that it properly addressed the matter under Section
402(e) of the UC Law, 43 P.S. § 802(e), instead of Section 402(b), 43 P.S. § 802(b).11
Board’s Br. at 11. As such, the Board asserts that it fairly resolved the conflicting
testimony in favor of Claimant because Employer did not satisfy its burden of proof
that Claimant committed willful misconduct. Id. at 9. It further asserts that the
Statement from Employer’s unavailable witness constituted impermissible hearsay
which was properly excluded from the Hearing. Id. at 19.
III. Discussion
A. Referee’s Abuse of Discretion
1. Referee’s Alleged Failure to Grant a Continuance
The procedural guidance provided to the parties in the Notice of
Hearing stated that a continuance will be granted only for what the Referee deems
to be “proper cause.” R.R. at 72; 34 Pa. Code. § 101.23(a). Such requests are to be
submitted in writing to the Referee, and a Notice of Continuance and new Notice of
Hearing are issued upon granting a party’s request. R.R. at 72. In the event that
11
The Board uses this argument to justify its application of Section 402(e) of the UC Law.
However, it recognizes that Employer’s failure to argue error of law in its brief waives the
argument on appeal, as discussed further below. R.R. at 11; see Pennsylvania Rule of Appellate
Procedure 2116(a), Pa.R.A.P. 2116(a); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).
6
there is a dispute over the Referee’s procedural judgment, this Court may override
the determination of the Referee only if there is a clear showing of abuse of
discretion. Steadwell v. Unemployment Comp. Bd. of Rev., 463 A.2d 1298, 1300
(Pa. Cmwlth. 1983).
Here, however, this Court cannot consider whether the Referee abused
his discretion in denying the Employer’s alleged continuance request. It is well
settled that “[t]his Court may not consider any evidence that is not part of the
certified record on appeal,” and it cannot permit parties to supplement the record
with material that was “never introduced before the administrative agency.” Pa.
Turnpike Comm’n v. Unemployment Comp. Bd. of Rev., 991 A.2d 971, 974 (Pa.
Cmwlth. 2009); Anam v. Workmen’s Comp. Appeal Bd., 537 A.2d 932, 936 (Pa.
Cmwlth. 1988). Under Rule 1951(a) of the Pennsylvania Rules of Appellate
Procedure, the scope of the record of the proceedings to be considered by the Court
consists of
(1) The order or other determination of the government
unit sought to be reviewed.
(2) The findings or report on which such order or other
determination is based.
(3) The pleadings, evidence and proceedings before the
government unit.
Pa. R.A.P. 1951(a). Thus, this Court requires that the record be well established,
particularly as to matters that should be made a part of the record “when counsel and
[] litigants are present.” Grubbs v. Pa. Bd. of Prob. & Parole, 481 A.2d 1390, 1391
(Pa. Cmwlth. 1984); see also Pa. R.A.P. 1951(b).
In Grubbs, 481 A.2d at 1390-91, Petitioner moved to strike several
documents referenced by Respondent on appeal that were neither introduced into the
7
record nor referenced at the administrative hearing. This Court determined that,
because there was no proper effort to admit them as part of the proceedings under
Rule 1951(b), the documents could not qualify as part of the proceedings under Rule
1951(a). Id. at 1391.
The present case suffers from a nearly identical procedural deficiency.
Employer maintains through its brief that it was prejudiced due to the Referee’s
denial of its timely request for a continuance. Employer’s Br. at 5. However, this
alleged continuance is only referenced in Employer’s brief; there is no evidence of
a request and subsequent denial in the record, and Employer failed to raise the issue
at the Hearing, even though Whitaker’s unavailability was addressed at the Hearing.
See R.R. at 105. Therefore, this Court will not evaluate any potential prejudice
against Employer as a result of the Referee’s alleged actions, because the
administrative record does not include the alleged continuance denial and Employer
has not made the proper effort to supplement the record.
2. Referee’s Exclusion of Sworn Testimony
Generally, issues of admission and exclusion of evidence are within the
discretion of the lower tribunal, and this Court will not disturb such decisions unless
there is a clear showing of abuse of discretion. Capital BlueCross v. Pa. Ins. Dep’t,
937 A.2d 552, 580 (Pa. Cmwlth. 2007) (citing Subaru of Am., Inc., v. State Bd. of
Vehicle Mfrs., 842 A.2d 1003, 1012 (Pa. Cmwlth. 2004)). In other words, the
exclusion of evidence constitutes a procedural defect subject to reversible error only
if prejudice results to the complaining party. Capital BlueCross, 937 A.2d at 580-
81. The excluded evidence in dispute in the present case is a Statement purportedly
made by Whitaker. Employer’s Br. at 5; R.R. at 105. Therefore, this Court must
8
determine whether Employer demonstrated that the Referee’s unilateral exclusion of
hearsay evidence constituted a procedural defect that prejudiced Employer’s case.
Hearsay is “an out of court [statement] offered to prove the truth of the
fact asserted [in the statement].”12 Commonwealth v. Coleman, 326 A.2d 387, 388
(Pa. 1974). When hearsay evidence is properly objected to by the opponent, it does
not function as competent, probative evidence to support the factual findings of the
Board. Unemployment Comp. Bd. of Rev. v. Stiles, 340 A.2d 594, 595-96 (Pa.
Cmwlth. 1975); see Harrison v. Unemployment Comp. Bd. of Rev., 383 A.2d 965,
966 (Pa. Cmwlth. 1978). However, “a hearsay statement that is not objected to is
still competent evidence and may form the basis for a finding of fact if it is
corroborated by other competent evidence.” Pierce-Boyce v. Unemployment Comp.
Bd. of Rev., 289 A.3d 130, 137 (Pa. Cmwlth. 2022) (citing Remaly v. Unemployment
Comp. Bd. of Rev., 423 A.2d 814, 816 (Pa. Cmwlth. 1980)). Further, this Court has
determined that “it is unnecessary that the finding of willful misconduct be supported
by substantial evidence absent the hearsay. . . . All that is necessary is that the facts
adding weight or confirming the hearsay be established by competent
evidence.” Pierce-Boyce, 289 A.3d at 137 (quoting Socash v. Unemployment Comp.
Bd. of Rev., 451 A.2d 1051, 1053 (Pa. Cmwlth. 1982)).
The Referee was correct in concluding that Whitaker’s Statement
constituted hearsay evidence because it was being offered for its truth to compensate
for her absence. R.R. at 105. Nonetheless, the burden lies with the opponent to
object to the admission of hearsay evidence. Harrison, 383 A.2d at 966. Due to
12
Testimony that is based on an individual's personal knowledge and observations is not
considered hearsay. See Baird v. Unemployment Comp. Bd. of Rev., 372 A.2d 1254, 1257 (Pa.
Cmwlth. 1977).
9
Claimant’s failure to object to the admission of the Statement,13 the evidence should
have been admitted.
However, despite the fact that the Statement was improperly excluded,
the exclusion does not rise to the level of a procedural defect. In Unemployment
Compensation Board of Review v. Cooper, 360 A.2d 293, 295-97 (Pa. Cmwlth.
1976), this Court held that there was a lack of competent evidence to support the
referee’s factual findings when the only evidence of such facts came from hearsay
testimony (without objection) and no other firsthand knowledge or corroboration.
Similarly in the present case, neither of Employer’s witnesses had adequate firsthand
knowledge of the events on February 13 and both relied solely on the Statement to
testify as to Claimant’s conduct. R.R. at 101-02. The extent of the personal
testimony is Poe’s contention that she heard loud voices coming from Whitaker’s
office and heard Claimant leaving. Id. Such vague testimony cannot fairly rise to
the level of competent corroborating evidence that would establish a factual finding
that Claimant voluntarily departed from his employment. Therefore, even if the
Statement had been admitted after Claimant failed to object, a favorable
determination in reliance on the Statement would have to be reversed because
“finding[s] of fact based solely on hearsay [cannot] stand.” Walker v.
Unemployment Comp. Bd. of Rev., 367 A.2d 366, 370 (Pa. Cmwlth. 1976). As a
13
It appears that the Referee improperly excluded the Statement based on Claimant’s prior
hearsay objection to the admission of Whitaker’s questionnaire, which was a separate piece of
evidence. See Zurawski v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 610 C.D. 2015,
filed September 9, 2015) (stating that contemporaneous objections to evidence are required before
referees when there is an opportunity to do so (citing Williams v. Unemployment Comp. Bd. of
Rev., 484 A.2d 831 (Pa. Cmwlth. 1984))). Under Rule 69.414(a) of the Commonwealth Court’s
Internal Operating Procedures, unreported decisions of the Commonwealth Court issued after
January 15, 2008, may be cited for their persuasive value. 210 Pa. Code § 69.414(a).
10
result, Employer was not prejudiced by the Referee’s unilateral decision to exclude
the Statement.
B. Credibility of Medical Testimony
This Court cannot disturb the Board’s findings concerning the
credibility of Claimant’s testimony. In UC cases, “[t]he Board is the ultimate
factfinder . . . and is empowered to make credibility determinations. The Board’s
findings of fact are conclusive upon appeal[.]” Elser v. Unemployment Comp. Bd.
of Rev., 967 A.2d 1064, 1069 n.8 (Pa. Cmwlth. 2009). The Board’s determination
is not subject to reversal based on differing accounts of witnesses who were or could
have been present, as long as substantial evidence supports the Board’s findings.
Tapco v. Unemployment Comp. Bd. of Rev., 650 A.2d 1106, 1108-09 (Pa. Cmwlth.
1994); Russo v. Unemployment Comp. Bd. of Rev., 13 A.3d 1000, 1003 (Pa. Cmwlth.
2010). Factual findings are supported by substantial evidence if “a reasonable mind,
without weighing the evidence or substituting its judgment for that of the fact finder,
might accept [the evidence] as adequate to support the conclusion reached.” Minelli
v. Unemployment Comp. Bd. of Rev., 39 A.3d 593, 595 n.4 (Pa. Cmwlth. 2012).
Here, most of the evidence admitted at the Hearing consisted of
Claimant’s perspective of the events on February 13. Although there were factual
disparities between the parties’ stories, Claimant’s testimony is supported by a
doctor’s letter confirming his diagnosis and treatment.14 R.R. at 107. Moreover, he
was the only witness at the hearing who could provide a firsthand account of what
14
“Patrick J Trio . . . was [seen] on 5/14/2024 . . . for a follow up of ongoing anxiety and
panic disorder. Patient states that he has been having stressful situations at work . . . This
culminated in a recent interaction with the supervisor that brought upon [sic] a panic attack.” R.R.
at 107.
11
allegedly occurred between himself and Whitaker. Therefore, substantial evidence
existed such that a reasonable mind could believe that Claimant left work due to a
medical emergency with no intention of quitting his position.
Furthermore, the Board is not at fault for affirming the Referee’s
findings based largely on one side of the story. Employer had advance notice of
Whitaker’s unavailability but failed to assure her attendance. Because Whitaker was
the only other individual present during the February 13 incident, her testimony was
clearly germane to the case. However, it is not the responsibility of the lower
tribunal, nor of this Court, to compensate for the shortcomings of the parties’
evidence. Thus, the Board did not err in its credibility determination based on the
evidence on the record.
C. Waiver of Issues Excluded from Briefs on Appeal
The Board asserts that the question of whether Section 402(b), 43 P.S.
§ 802(b), or Section 402(e), 43 P.S. § 802(e), applies to the facts has been waived
on appeal because Employer failed to raise this issue in its brief. Board’s Br. at 11.
We agree.
Under Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure,
“[t]he statement of the questions involved must state concisely the issues to be
resolved . . . [and] will be deemed to include every subsidiary question fairly
comprised therein. No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Thus, an
appellate brief must “provide . . . discussion of a claim with citation to relevant
authority” or “develop the issue in [another] meaningful fashion capable of review”
to prevent waiver. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It is
12
not the obligation of the courts to formulate arguments on behalf of the parties. Id.
Because Employer failed to develop its argument concerning which section of the
UC Law to apply, that issue has been waived.
IV. Conclusion
Based on the foregoing discussion, this Court concludes that there was
no abuse of discretion by the Referee when he denied Employer’s alleged request
for a continuance and excluded Whitaker’s hearsay Statement. Further, the Board
did not err in affirming the Referee’s credibility determination of Claimant’s
evidence and testimony at the Hearing. Accordingly, we agree with the Board that
Employer waived further challenge under Section 402(b) of the UC Law, 43 P.S. §
802(b), and we affirm the Board’s July 17, 2024, order granting Claimant UC
benefits.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Darby, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1084 C.D. 2024
Respondent :
ORDER
AND NOW, this 19th day of November, 2025, the July 17, 2024, order of the
Unemployment Compensation Board of Review is AFFIRMED. Petitioner’s
request for relief in the form of a remand for further testimony is DENIED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge