Opinion
No. 2101 C.D. 2011
08-14-2012
Corinne L. Taylor, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Corinne L. Taylor (Claimant) petitions pro se for review of the August 24, 2011, order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for benefits and denying her request for a remand hearing. We vacate and remand.
Claimant was employed as a sales associate for Ross Dress for Less (Employer) until her employment was terminated on April 29, 2011. Claimant applied for unemployment compensation benefits, indicating in her application that she was fired for violating Employer's rule against "stashing items to purchase," and that Employer did not enforce the rule in a uniform manner. (C.R., Claimant Questionnaire: Discharge for Rule Violation.) The local service center awarded benefits. Employer appealed on the basis that Claimant had been fired for willful misconduct and was therefore ineligible for unemployment compensation benefits under section 402(e) of the Unemployment Compensation Law (Law). A hearing before a referee was scheduled for June 27, 2011.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e) (stating that employees are ineligible for compensation for any week in which their unemployment is due to discharge from work for willful misconduct connected with their work).
Claimant did not appear at the hearing. In that regard, the referee indicated that notice of the hearing was sent to Claimant at her last known place of address and was not returned as being undeliverable by the postal authorities. (N.T. at 7.) Employer presented the testimony of Brenda Poorman, store manager. According to Poorman, Claimant's employment was terminated because Claimant concealed merchandise in a box underneath the customer service desk, which was a violation of Employer's policy that any items that an employee wished to place on hold must be stored in the fitting room along with a "hold slip." (N.T. at 2-3.) According to Poorman, Claimant had been made aware of this policy. (N.T. at 3.) Poorman also testified she personally reviewed the store's security videotapes, showing Claimant place items underneath the customer service counter on three consecutive days prior to her discharge. (N.T. at 3-4.) Poorman testified that concealing items for purchase is forbidden because such items are subject to theft or being hidden until they are marked down, depriving Employer of the opportunity to sell them at full price. (N.T. at 6.)
Based on that evidence, the referee concluded that Claimant was ineligible for benefits under section 402(e) of the Law. Claimant appealed to the Board, alleging that she did not receive any notification of the June 27, 2011, hearing. The Board affirmed, adopting and incorporating the referee's findings and conclusions. The Board also denied Claimant's request for a remand hearing, noting that "the record reflects that the hearing notice was mailed to [Claimant's] last known address and was not returned as undeliverable. Therefore, it is presumed that [Claimant] received notice. The Board does not find credible [Claimant's] assertion that she did not receive notice for the hearing." (C.R., Board's op. at 1.) Thereafter, the Board denied Claimant's request for reconsideration.
On appeal to this Court, Claimant first contends that Employer's appeal from the original notice of determination was untimely because it is date-stamped as having been received on June 10, 2011, whereas the last day for Employer to file an appeal was June 7, 2011. We must reject this argument because a review of the certified record shows that the appeal was mailed on June 7, 2011, and an appeal filed by mail is considered filed as of the date of the U.S. Postal Service postmark. 34 Pa. Code §101.82(b)(1). The envelope in which Employer's appeal was mailed is clearly postmarked June 7, 2011, and, thus, the appeal was timely.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
34 Pa. Code §101.82(b)(1) provides that the filing date of an appeal sent by United States mail will be:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
Claimant next argues that the Board erred in denying her request for a remand hearing. We agree.
"Where a party fails to appear at a scheduled hearing, the Board may remand the case for an additional hearing only where the Board has made an independent determination that the reasons set forth by the party for its failure to appear constitute proper cause." Sanders v. Unemployment Compensation Board of Review, 524 A.2d 1031, 1032 (Pa. Cmwlth. 1987); see also 34 Pa. Code §101.24.
Section 101.24 of the Board's regulations provides:
§101.24. Reopening of hearing34 Pa. Code §101.24 (emphasis added). --------
(a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute "proper cause," the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute "proper cause" for not appearing; and they shall be delivered or mailed--preferably to the tribunal at the address shown on the notice of hearing or to the Unemployment Compensation Board of Review, Labor and Industry Building, Seventh and Forster Streets, Harrisburg, Pennsylvania 17121, or to the local employment office where the appeal was filed.
(b) A request for reopening which is received by the referee before his decision has been mailed to the parties shall be decided by the referee before whom the case is pending. If the request for reopening is allowed, a new hearing shall be scheduled with written notice thereof to each of the parties. At a reopened hearing, the opposing party shall be given the opportunity to object to the reopening if he so desires. If the request for reopening is denied, the referee shall append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review on further appeal.
(c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is allowed, the case will be remanded and a new hearing scheduled, with written notice thereof to each of the parties. At a reopened hearing, the opposing party shall be given the opportunity to object to the reopening if he so desires. If the request to have the hearing reopened is denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
As noted in our recent decision in Volk v. Unemployment Compensation Board of Review, ___ A.3d. ___ (Pa. Cmwlth. 2012, No. 576 C.D. 2011, filed July 26, 2012) (en banc), which controls our disposition of this case, not receiving or not timely receiving a hearing notice can constitute "proper cause" for reopening a hearing. See also Verdecchia v. Unemployment Compensation Board of Review, 657 A.2d 1341 (Pa. Cmwlth. 1995).
Generally, when a party asserts that it did not receive a notice from the Department, the analysis begins with the Department invoking an evidentiary presumption to show that the notice was received by the party. This evidentiary presumption of receipt is used where the sender establishes with proof that a hearing notice was placed into the mail addressed to the last known address of the addressee and it was not returned by postal authorities as undeliverable. Gaskins, [v. Unemployment Compensation Board of Review, 429 A.2d 138 (Pa. Cmwlth. 1981)] at 140 (applying the common law mailbox rule); see also 34 Pa. Code §101.53 (providing that '[m]ailing of notices, orders or decisions of a referee, or of the Board to the parties at their last known addresses as furnished by the parties to the referee, the Board or the
Department, shall constitute notice of the matters therein contained.') This presumption is based on the notion that, once the notice, properly addressed, is placed in the mail, there are usually two options: either the notice will be delivered as addressed, or, if it cannot be delivered, it will be returned to the sender. See Bee v. Unemployment Compensation Board of Review, 119 A.2d 558, 559 (Pa. Super 1956).Volk, slip op. at 4-5.
This presumption, however, is rebuttable. Id.
In Volk, the claimant asserted that he did not attend the hearing because he had not received any notice of its time and place. The Board denied the claimant's request to reopen the hearing on the basis that his mere allegation that notice was not received, without more, was insufficient to overcome the rebuttable presumption that properly-mailed notice was received. We disagreed, holding that due process requires the Board to give the requesting party an opportunity to present evidence to support its allegation that notice was not received. We specifically noted that:
the Board may not rely solely upon the sufficiency of statements made in a petitioner's appeal document or request to reopen the hearing, but must provide the petitioner against whom the presumption of receipt is being asserted the opportunity to submit evidence to rebut the presumption and to support the asserted reasons believed to be proper cause for not appearing at the hearing before the Board determines whether the petitioner had proper cause for not attending the hearing.Id., slip op. at 16.
Having so concluded, we vacated the Board's decision, and remanded the matter for further proceedings. Here, the Board similarly rejected the assertion in Claimant's request for a rehearing as not "credible" without giving Claimant the opportunity to present any evidence to support the assertion. (C.R., Board's op. at 1.) We agree with Claimant that this was error by the Board, as statements in a claimant's appeal document or request to reopen the hearing are not "evidence" upon which factual findings can be made, and "the Board's consideration of and reliance upon Claimant's statement in his [or her] appeal and hearing request is no substitute for holding an evidentiary hearing." Id., slip op. at 15-16.
Accordingly, we vacate the Board's order and remand the matter for further proceedings consistent with this opinion.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of August, 2012, the August 24, 2011 order of the Unemployment Compensation Board of Review is hereby vacated and the matter is remanded to the Board for further proceedings consistent with this opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge