Opinion
No. 1212 C.D. 2013
01-30-2014
Peter Chrisbacher, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Peter Chrisbacher (Claimant) petitions pro se for review of the May 10, 2013 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision denying Claimant's request to backdate his claim for benefits. We affirm.
Claimant filed an application for unemployment benefits effective October 28, 2012. He subsequently requested backdating for an application effective September 23, 2012; Claimant sought backdating for the waiting week ending September 29, 2012, and the compensable weeks of October 6, 2012 through October 27, 2012. The stated reason for Claimant's request was that he did not open his claim for benefits when his lack of work began. The local job center denied Claimant's request under section 401(c) of the Unemployment Compensation Law (Law) and the regulation at 34 Pa. Code §65.43a. (Record Item No. 2.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(c). Section 401(c) provides that a claimant will be eligible for benefits if, among other things, the claimant has made a valid application for benefits.
In relevant part, the regulation provides that the time for filing a claim may be extended if the claimant fails to file a claim within the time allowed for one of the following reasons: the department suspends accepting filings or is unable to handle all filings due to an excessive volume of calls or other reasons; the claimant attempts to file by telephone, internet, or fax in accordance with 34 Pa. Code §65.41, the method used is unavailable or malfunctions, and the attempt occurs on the last day that the claimant could timely file using that method; an unemployment compensation office fails to accept a filing as a result of an error or mistake by the department; sickness or death of a member of the claimant's immediate family, or an act of God; and other reasons, if the claimant makes all reasonable and good faith efforts to file timely but is unable to do so through no fault of his own. 34 Pa. Code §65.43a(d)-(e).
Claimant appealed, stating that when he first stopped working he was under the mistaken impression that he was not eligible for benefits, which is not a valid reason for backdating a claim under 34 Pa. Code §65.43a. In the documents submitted in support of his appeal, Claimant provided his address as "234 S. Walnut Street, Kennett Square, PA, 19348." (Record Item No. 3.) Notice of a referee's hearing scheduled for January 8, 2013, was sent to that address and was not returned by the U.S. Postal Service as undeliverable. (Record Item Nos. 5, 6.) Claimant did not attend the hearing. Based on the documents of record, the referee determined that Claimant failed to establish that he is entitled to backdating under the very narrow exceptions permitted under the Law and the regulation. By order dated January 10, 2013, the referee affirmed the determination of the local job center and denied Claimant's request for backdating.
Claimant filed an appeal from the referee's decision, asserting that he had not received notice of the referee's hearing. In a letter accompanying his appeal form, Claimant stated: "I have also included the additional line 'Garage Apartment' in [my] address above, and below, in the interest of reducing the likelihood of issues with mailed correspondence, although I am aware of no prior issues with mailed correspondence; please update your records accordingly." (Record Item No. 8.)
The Board remanded the matter to the referee to conduct a hearing in order to receive testimony and evidence concerning the reasons for Claimant's nonappearance at the previous hearing. The Board's February 11, 2013 remand order, which reflected that Claimant's address had been updated, stated that additional evidence on the merits may be presented but would not be considered unless Claimant established proper cause for his failure to appear at the prior hearing. (Record Item No. 10.) Claimant twice requested a continuance, and a remand hearing was held on April 12, 2013. (Record Item No. 11.)
34 Pa. Code §101.104(c) (authorizing the Board to direct the taking of additional evidence).
Claimant first requested a continuance because he had begun a new job in Bentonville, Arkansas, and was out of town Monday through Thursday each week and needed time to obtain counsel; he requested a hearing date on a Friday or weekend no sooner than March 22nd. The Board issued a revised notice of a remand hearing, scheduled for March 22, 2013. Thereafter, Claimant requested and was granted an additional postponement.
At the start of the hearing, the referee identified the documents of record and specifically noted that the Board was seeking testimony concerning the reasons for Claimant's failure to appear at the first hearing. The referee then questioned Claimant, who proceeded pro se, about the delay in his application for benefits. (Record Item No. 12, Notes of Testimony at 2, 4-11.) The referee posed no questions, and Claimant offered no testimony, concerning his failure to appear at the first hearing.
In its May 10, 2013 decision and order, the Board found that Claimant had not proven good cause for his failure to appear at the first hearing. Regarding Claimant's assertion that he did not receive notice of the first hearing, the Board observed that notice was mailed to Claimant's last known postal address and was not returned by the postal authorities as undeliverable; therefore, receipt of notice was presumed. The Board concluded that Claimant's mere assertion that he did not receive notice was insufficient to rebut that presumption and declined to consider Claimant's testimony on remand. After considering the record of the prior proceeding, the Board adopted the referee's findings and conclusions and affirmed the referee's decision denying Claimant's request to backdate his claim.
On appeal to this Court, Claimant argues that the general presumption of receipt is invalid in this case, due to the existence of multiple apartments at his mailing address and the incomplete address used in the notice of the first hearing. Claimant asserts that when he learned that a letter sent by the Board had not been delivered to him, he immediately contacted the Board and provided his complete address, including the apartment number. Claimant contends that the Board failed to consider these facts when it presumed that he had received notice of the first hearing.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Claimant's statement of the questions involved does not specifically identify this issue, as required by Pa.R.A.P. 2116, but only asks, generally, whether the Board "overlook[ed] or provide[d] inadequate consideration of all available and relevant facts" in affirming the referee's decision. In addition, Claimant cites no authority to support his argument, (Claimant's brief at 11-12), as is required by Pa.R.A.P. 2119. This Court will quash appeals when substantial defects impede our ability to conduct appellate review. Shaffer v. Unemployment Compensation Board of Review, 928 A.2d 391, 393 (Pa. Cmwlth. 2007). However, the Board does not suggest that Claimant's brief should be quashed, and it is evident that Claimant challenges the Board's reliance on the presumption that he received notice.
It is well settled that an evidentiary presumption of receipt arises upon proof that a hearing notice was placed into the mail, addressed to a party's last known address, and was not returned by postal authorities as undeliverable. Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 41 (Pa. Cmwlth. 2012). In Volk we held that where a party fails to appear at a hearing and subsequently asserts that he did not receive notice, the matter must be remanded to the referee to allow that party to submit evidence. Id. at 40-41. If the party presents evidence rebutting the evidentiary presumption that notice was received, the Board will reopen the record. 34 Pa. Code §101.24.
In this case, the record establishes that notice of the January 8, 2013 hearing was mailed to Claimant, at the address he had provided, and was not returned as undeliverable. Thereafter, Claimant was afforded a remand hearing, and he was specifically advised that additional evidence would not be considered unless he established proper cause for his failure to appear at the prior hearing. (Record Item No. 10.) Nevertheless, he offered no testimony or other evidence concerning his nonappearance. In the absence of such evidence, the Board had no basis upon which to reopen the record or to reverse the referee's decision.
Claimant does not complain about the referee's failure to elicit testimony on this issue. See 34 Pa. Code §101.21(a) (providing that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.") Moreover, as noted above, the referee specifically announced that the purpose of the remand hearing was to take additional testimony concerning Claimant's failure to appear at the first hearing. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 30th day of January, 2014, the order of the Unemployment Compensation Board of Review, dated May 10, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge