Opinion
No. 1425 C.D. 2011
08-14-2012
Dennis Johnson, 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 COHN JUBELIRER
Dennis Johnson (Claimant), proceeding pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which affirmed the determination of an Unemployment Compensation Referee (Referee) that found Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), 42 P.S. § 802(b). The Board also declined to grant Claimant a hearing to present evidence to support his allegation that he did not receive the notice of hearing and in opposition to the evidence presented by Job Connections Services, LLC (Employer) on the merits of his claim for UC benefits.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(b) of the Law provides that a claimant is ineligible for compensation if his unemployment is due to his voluntarily leaving employment without cause of a necessitous and compelling nature.
Claimant worked for Employer as a painter at Pocono Metals from July 28, 2008, until May 8, 2009. On May 8, 2009, Pocono Metals informed Claimant that he would be laid off at the end of the day, and Claimant walked off the job before the end of the day. Claimant filed a claim for UC benefits, which the Scranton UC Service Center denied, holding that Claimant was ineligible for benefits under Section 402(b). Claimant appealed, and the matter was assigned to the Referee for a hearing, at which Claimant did not appear. The Referee found that Employer's Rules of Conduct stated that:
it is your responsibility to call [Employer's] office immediately and let us know that you are available for work if your assignment is ended by the client or by yourself prior to its scheduled end date. Failure to notify us of your availability for work will be accepted as your voluntary resignation from [Employer].(Findings of Fact (FOF) ¶ 2.) The Referee also found that Claimant acknowledged his awareness of the Rules of Conduct on August 5, 2008, and that, after walking off the job at Pocono Metals, Claimant did not notify Employer that he was available for work. (FOF ¶¶ 3, 5-6.) The Referee concluded that, pursuant to Employer's rule, Claimant's failure to notify Employer that he was available to work resulted in his voluntary resignation, Claimant bore the burden of proving necessitous and compelling reasons for that resignation. Because Claimant was not present to introduce evidence to satisfy his burden, the Referee held that Claimant was ineligible for benefits under Section 402(b).
Claimant filed a timely appeal to the Board, arguing that he did not attend the hearing because he was not notified of the date, time, and place of the Referee's hearing. (Claimant's Appeal, R. Item 11.) The Board affirmed the Referee's decision and adopted the Referee's findings of facts as its own. In addition, the Board denied Claimant's request for a remand hearing to submit additional evidence because:
the hearing notice . . . was mailed to [C]laimant's last known address and was not returned as undeliverable. Therefore, it is presumed [C]laimant received notice for the hearing. Consequently, the Board discredits [C]laimant's assertion that he did not receive the hearing notice.(Board Op. at 1.) Claimant now petitions this Court for review.
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). --------
Claimant argues that there was no reason why he would not have attended the hearing and was told to wait for a letter informing him of when the hearing was scheduled, which he never received. Rather, the next communication he received from the UC authorities was the Referee's adverse decision. Claimant contends that he should be given the opportunity to present evidence in support of his claim for UC benefits. In response, the Board asserts that, because the hearing notice was mailed to Claimant's last known address and was not returned as undeliverable, it is presumed that Claimant received the notice, Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138 (Pa. Cmwlth. 1981), and it was within the Board's role as fact finder to find Claimant's assertion that he did not receive the hearing notice not credible. Therefore, the Board maintains that it properly denied Claimant's request for a remand hearing.
Based on the rationale set forth in Volk v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 576 C.D. 2011, filed July 26, 2012), we hold that the Board was required to order a hearing to give Claimant the opportunity to submit evidence to rebut the presumption of receipt of the hearing notice. Here, like Volk, the Board determined that Claimant did not have proper cause for not attending the hearing because Claimant only stated that he did not receive the notice without giving any explanation for that non-receipt in his request for an appeal. However, pursuant to the Board's regulations and principles of due process as discussed in Volk, Claimant should be given the opportunity to present evidence to support his claim that he did not receive a hearing notice. Accordingly, as we did in Volk, we vacate the Board's Order and remand this matter to the Board to order a hearing to allow Claimant the opportunity to submit evidence in an attempt to rebut the presumption of receipt of the hearing notice and explain why he did not attend the initial hearing.
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RENÉE COHN JUBELIRER, Judge Judge Simpson dissents. ORDER
NOW, August 14, 2012, the Order of the Unemployment Compensation Board of Review (Board) entered in the above-captioned matter is VACATED and this matter is REMANDED to the Board for further proceedings consistent with this opinion.
Jurisdiction relinquished.
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RENÉE COHN JUBELIRER, Judge