Opinion
No. 1337 C.D. 2011
03-07-2012
Budget Maintenance, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Budget Maintenance, Inc. (Employer) petitions for review from an order of the Unemployment Compensation Board of Review (Board) that granted Angel L. Dominguez (Claimant) benefits after Employer failed to establish proper cause for its absence at the initial hearing and failed to sustain its burden of proof on the merits. Employer argues it presented a sufficient cause for its absence at the hearing, and Claimant is ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct). Additionally, Employer claims it was denied due process by the presiding referee and the Board. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant worked for Employer as a janitor for approximately three years. In September 2010, Employer issued Claimant a two-day suspension for inappropriately joking around with his co-workers. Employer warned Claimant that any additional misbehavior could result in the termination of his employment. Thereafter, Claimant returned to work and kept to himself.
Within the month, a co-worker reported to Employer that Claimant made a vulgar and abusive remark to her. Claimant denied the accusation. Nonetheless, Employer terminated Claimant's employment based on the co-worker's report. At that time, Claimant filed for unemployment benefits, which were denied. Claimant appealed, and a hearing ensued.
At a hearing, Claimant testified on his own behalf, and Employer failed to appear. Concluding Employer did not establish Claimant's actions constituted willful misconduct, the referee granted benefits. Upon receipt of the referee's determination, Employer petitioned the Board to reopen the record. Thereafter, the Board ordered another hearing to determine whether Employer had proper cause for not appearing at the first hearing and to accept additional evidence on the merits, which the Board would consider if necessary.
At the second hearing, where a referee acted as the Board's hearing officer, Employer presented the testimony of three witnesses. On the threshold issue of whether Employer had proper cause for its absence at the prior hearing, Employer presented the testimony of its president, John Allen (Employer's President).
Employer's President testified Employer did not attend the first hearing because it never received a Notice of Hearing. When asked how he knew Employer did not receive its Notice of Hearing, Employer's President explained that he consulted with Tammy Hoffman (Hoffman), the one person Employer designated to handle all unemployment compensation matters. Reproduced Record (R.R.) at 112a. Furthermore, Employer's President stated he knew everything Hoffman knew because he often opened the office mail, discussed unemployment cases with Hoffman, and took these matters very seriously. R.R. at 112a-113a. In sum, Employer's President testified he never saw the Notice of Hearing or learned of it from Hoffman; therefore, he concluded Employer never received it. Id. Employer did not call Hoffman to testify. As to the merits, Employer presented the testimony of its president and two additional witnesses. Claimant again testified on his own behalf.
Upon review, the Board determined Employer did not establish proper cause for its absence at the initial hearing. As a result, the Board did not consider Employer's witnesses' testimony on the merits. Instead, the Board credited Claimant's testimony, and it concluded Employer did not establish Claimant's actions constituted willful misconduct.
Before this Court, Employer claims the Board erred in determining it did not have proper cause for not appearing at the initial hearing. Furthermore, Employer argues it was denied due process because the referee did not aid it as an unrepresented party, and the Board did not consider the substantive merits of its appeal. Moreover, Employer contends the Board erred in determining Claimant's behavior did not constitute willful misconduct.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Pursuant to 34 Pa. Code §101.51, a referee is permitted to hold a hearing in a party's absence, if that party was properly notified of the hearing and did not request a continuance. Gadsden v. Unemployment Comp. Bd. of Review, 479 A.2d 74 (Pa. Cmwlth. 1984). In order to reopen the record to allow an absent party to present evidence, that party must file a written request to the Board to reopen, and must present proper cause for not appearing before the referee. 34 Pa. Code §101.51; Stop-N-Go v. Unemployment Comp. Bd. of Review, 707 A.2d 560 (Pa. Cmwlth. 1998). A party's own negligence does not constitute proper cause, but the negligence of a disinterested party, such as the postal service, may justify a party's absence. Verdecchia v. Unemployment Comp. Bd. of Review, 657 A.2d 1341 (Pa. Cmwlth. 1995); Savage v. Unemployment Comp. Bd. of Review, 491 A.2d 947 (Pa. Cmwlth. 1985).
Pursuant to the "mail-box rule," proof that a notice was mailed creates the rebuttable presumption it was received, so long as it was properly addressed, and the carrier did not return it as undeliverable. Dep't of Transp., Bureau of Driver Licensing v. Whitney, 575 A.2d 978 (Pa. Cmwlth. 1990); Gaskins v. Unemployment Comp. Bd. of Review, 429 A.2d 138 (Pa. Cmwlth. 1981). Thus, if the record indicates that a notice was mailed, the burden is on the absent party to establish proper cause for its absence. Id. A mere denial of receipt is insufficient to rebut the "mail-box rule" presumption. Janick v. Unemployment Comp. Bd. of Review, 383 A.2d 973 (Pa. Cmwlth. 1978). The Board decides the credibly and weight of testimony on the issue of proper cause. Gaskins.
Here, Employer contends the record lacks competent evidence that its Notice of Hearing was ever mailed. Employer therefore argues the presumption that it received a Notice of Hearing is impermissibly based only on a presumption of administrative regularity. Employer asserts a presumption of administrative regularity, which assumes the notice was mailed in the ordinary course of business, is insufficient evidence to trigger the "mail-box rule" presumption that Employer received its Notice of Hearing. See Whitney (a presumption a letter was received cannot be based on a "routine business practice" presumption that the letter was written and mailed).
Contrary to Employer's argument, the referee admitted without objection a copy of the Notice of Hearing issued in this case. R.R. at 112a. It is undisputed the Notice of Hearing contains Employer's correct address, was not returned as undeliverable, and was received by Claimant. Id.; cf. Whitney (no proof the letter was ever written or mailed). In addition to these circumstances, the Notice of Hearing contains the statement, "Date Mailed 1/14/2011." R.R. at 18a; see Dep't of Transp., Bureau of Traffic Safety v. Warenczuk, 636 A.2d 1225, 1225 (Pa. Cmwlth. 1991) (offering a certified copy of the notice containing the notation "Mail Date: ..." is sufficient to support a finding of mailing on that date). In sum, the record contains sufficient circumstantial evidence to support an inference that Employer's Notice of Hearing was mailed; thus, the Board properly applied the "mail-box rule" presumption. See Gaskins.
In addition, Employer did not present credible evidence to rebut the presumption it received its Notice of Hearing. Specifically, the Board determined Employer's President's testimony was not credible. R.R. at 147a-148a.; See Gaskins. Moreover, the Board acknowledged Employer did not present the testimony of Hoffman, a person with firsthand knowledge of whether Employer received its notice. See BMY v. Unemployment Comp. Bd. of Review, 504 A.2d 946 (Pa. Cmwlth. 1986) (Board may make a negative inference where the party with the burden of proof does not present a material witness on a particular issue). Therefore, Employer did not establish proper cause for its absence at the referee's hearing. See Verdecchia. As such, the Board did not err in affirming the referee's decision without reopening the record.
Next, we address Employer's due process concerns. Employer contends that during the hearing, the referee improperly prevented Employer's President from fully testifying and did not aid Employer in developing the record. Specifically, Employer objects to the referee stopping Employer's President's testimony regarding why he believed Employer did not receive a Notice of Hearing, and how importantly he treats unemployment compensation matters, on relevancy grounds.
Additionally, Employer argues the Board denied it due process by completely ignoring the evidence it presented to establish Claimant's willful misconduct. As discussed, Employer did not establish proper cause for failing to appear at the referee's hearing; thus, it waived its opportunity to present evidence on the merits. See McNeill v. Unemployment Comp. Bd. of Review, 510 Pa. 574, 511 A.2d 167 (1986). Accordingly, we reject Employer's argument.
Due process in unemployment compensation matters does not require a perfect hearing, but requires a fair one. White v. Unemployment Comp. Bd. of Review, 450 A.2d 770 (Pa. Cmwlth. 1982). When a party is unrepresented by counsel, fairness mandates, at the very least, the referee must advise the party of its right to have an attorney, to offer witnesses, and to cross-examine adverse witnesses. Katz v. Unemployment Comp. Bd. of Review, 430 A.2d 354 (Pa. Cmwlth. 1981). A referee is not required to advise a party on specific evidentiary questions or points of law. Snow v. Unemployment Comp. Bd. of Review, 433 A.2d 922 (Pa. Cmwlth. 1981).
Here, the referee interrupted Employer's President's testimony because it was repetitious and irrelevant to the issue of proper cause. See R.R. at 112a-114a. Furthermore, the referee, after stopping Employer's President once, asked him if he had any additional relevant testimony before allowing Claimant to cross-examine him. R.R. at 115a. Contrary to Employer's contention, the referee did not prevent Employer from presenting relevant evidence on any material fact. See Wilkins v. Unemployment Comp. Bd. of Review, 502 A.2d 283 (Pa. Cmwlth. 1985). Thus, as the referee did not err, Employer's argument lacks merit. See Vann v. Unemployment Comp. Bd. of Review, 508 Pa. 139, 494 A.2d 1081 (1985).
Last, we consider Employer's contention that the Board erred in determining Claimant did not engage in willful misconduct. The burden of proving willful misconduct rests on the employer. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). Here, the Board credited Claimant's testimony. In so doing, the Board accepted Claimant's testimony that on the day of the alleged incident he kept to himself to avoid getting into trouble, and he did not direct vulgar language at a co-worker. R.R. at 147. Furthermore, because of Employer's unjustified absence from the hearing, the Board excluded its evidence to the contrary. See McNeill v. Unemployment Comp. Bd. of Review, 510 Pa. 574, 511 A.2d 167 (1986). As a result, Employer did not establish Claimant engaged in willful misconduct. See Guthrie. Therefore, we reject Employer's argument.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 42 P.S. §802(e). "Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interest, a deliberate violation of the employer's work rules, or a disregard of the standards of behavior an employer can rightfully expect from its employees." Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997)). --------
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 7th day of March, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge