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John D. Volk v. Unemployment Compensation Board

July 26, 2012

JOHN D. VOLK, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD
OF REVIEW, : RESPONDENT :



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: May 16, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COHN JUBELIRER

John D. Volk (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which affirmed the determination of the Unemployment Compensation Referee (Referee) that Claimant was ineligible for Unemployment Compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law),*fn1 43 P.S. § 802(e). In doing so, the Board declined to grant Claimant a hearing at which he could present evidence: (1) to support his allegation that he did not attend the Referee's hearing because he did not receive notice of the hearing; and (2) on the merits of his claim for UC benefits. The issue before this Court is whether the Board abused its discretion and/or erred as a matter of law by denying Claimant's request to reopen the hearing record to submit additional evidence based solely on its determination that Claimant's statement in his appeal that he did not receive notice of the time and place of the first hearing was insufficient to overcome the presumption of receipt of the first hearing notice.

Claimant worked as a registered nurse for Bradford Hospital (Employer) from April 14, 2008, until his discharge on June 24, 2010. Claimant filed a claim for UC benefits with the Altoona Service Center (Service Center) and the Service Center found that Claimant committed willful misconduct in connection with his work. The Service Center, therefore, determined that Claimant was ineligible for UC benefits pursuant to Section 402(e) of the Law. Claimant appealed this determination, and the Referee held a hearing at which Claimant did not appear. The Referee also found Claimant ineligible for benefits and that the hearing notice was mailed to Claimant. Claimant filed a timely appeal of the Referee's order with the Board. In his appeal, Claimant asserted that he did not attend the hearing because he was not notified of the time and place of the Referee's hearing and that the Referee erred in finding that Claimant had committed willful misconduct in connection with his work. The Board affirmed the Referee's decision and denied Claimant's request to reopen the hearing to submit additional evidence because:

[t]he record establishes that the Referee's Notice of Hearing was mailed to [C]laimant at his last known address. Therefore, there is a presumption of timely receipt. A party's denial alone is insufficient to overcome this presumption. [C]laimant has not alleged a reason for his nonappearance other than his allegedly not receiving notice of the hearing. This is insufficient to overcome the presumption of receipt. (Board Op. at 1.) Claimant now petitions this Court for review.*fn2

On appeal, Claimant argues that he never received notice of the date and time of the Referee's hearing and that the Board abused its discretion and/or erred as a matter of law in failing to grant his request for a remand hearing. Claimant essentially contends that he did not know that the Referee's hearing took place until he received the Referee's adjudication.*fn3 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, citing Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138 (Pa. Cmwlth. 1981), and, therefore, the Board did not err in denying Claimant's request for a remand hearing.

The Department of Labor and Industry's (Department) regulation at 34 Pa. Code § 101.24 addresses requests for reopening the record where a party does not attend a scheduled hearing and states, in relevant part:

(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 [the] Board, shall be in writing; [and] shall give reasons believed to constitute "proper cause" for not appearing[.]

(c) A request for reopening the hearing which . . . 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 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.

Id. (emphasis added). We have held that not receiving or not timely receiving a hearing notice can constitute "proper cause" for reopening a hearing. Verdecchia v. Unemployment Compensation Board of Review, 657 A.2d 1341, 1343-44 (Pa. Cmwlth. 1995); Coin Automatic Laundry Equipment Company v. Unemployment Compensation Board of Review, 447 A.2d 690, 691 (Pa. Cmwlth. 1982).

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, 429 A.2d 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) ("Presumably [the notice] was received by claimant for it was not returned by the postal authorities.").*fn4 Although those two options are the most likely to occur in our experience, there are occasions in which mail is lost or not delivered for some reason. See, e.g., Verdecchia, 657 A.2d at 1343-44 (where the addressee provided evidence that the postal authorities did not forward mail as requested by addressee). Therefore, the courts only presume that the notice was received; the burden then shifts to the addressee to prove this presumption wrong and that the mail was not received. The presumption is, thus, merely "a procedural device which shifts the burden of persuasion or the burden of going forward with the evidence," Bixler v. Hoverter, 491 A.2d 958, 959 (Pa. Cmwlth. 1985), to the claimant.*fn5 See also Commonwealth v. Shaffer, 447 Pa. 91, 106, 288 A.2d 727, 735 (1972) (stating "[a] rebuttable presumption forces the defendant to come forth or suffer inevitable defeat on the issue in controversy").

As described, the courts have applied the presumption of receipt as a rebuttable presumption and, therefore, that the addressee must be given the opportunity to submit evidence to rebut the presumption. For example, in Coin Automatic Laundry, the claimant was awarded UC benefits pursuant to a referee's hearing at which the employer failed to appear and, on appeal, the employer argued that it did not receive the notice until after the hearing had been concluded. Coin Automatic Laundry, 447 A.2d at 691. The issues before this Court were "whether the employer had notice of that hearing" and "whether the employer has had an opportunity to support its contention as to lack of notice." Id. After affirming that there is a rebuttable presumption of timely receipt, we held that the employer here has had no opportunity to present proof which could rebut the presumption. The employer's offer of proof, as presented to the [Board] in support of its request for reconsideration, is that the employer in fact did not receive the notice in the mail until the day of the hearing, at a time when the hearing had already been concluded.

We cannot pass upon the adequacy or truth of such offered evidence, but neither can we conclude that it has been adjudicated absent any opportunity to present it. We therefore must remand this case so that the [B]oard may provide for the taking of evidence concerning whether or not the mailed notice was in fact delivered too late by the postal system.

Id. (emphasis added). If the addressee is not given the opportunity to present evidence to rebut the presumption of receipt, the presumption would become irrebuttable, a legal consequence that is generally disfavored by both the United States and Pennsylvania Supreme Courts as violating due process. See Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 349, 684 A.2d 1060, 1063 (1996) (citing, inter alia, Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) and Bell v. Burson, 402 U.S. 535 (1971), for the general proposition that statutes that create an irrebuttable presumption that are "not universally true and did not grant an individual the opportunity to rebut the presumption" violate due process).

Thus, our case law has established the necessity of providing an addressee the opportunity to rebut the presumption of receipt, which here could establish proper cause for not attending a referee's hearing pursuant to 34 Pa. Code § 101.24. In addition, the Department's own regulations address the need for holding such a hearing. Generally, pursuant to Section 504 of the Law, 43 P.S. § 824,*fn6 "the Board has the discretion to decide whether to grant a request for a remand." Fisher v. Unemployment Compensation Board of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997). However, the Board's regulation at 34 Pa. Code § 101.104(c), which relates to the Board's allowance or disallowance of an appeal, states in pertinent part:

The Board will review the previously established record and determine whether there is a need for an additional hearing. Under section 504 of the [Law] (43 P.S. ยง 824), the Board may affirm, modify or reverse the decision of the referee on the basis of the evidence previously submitted in the case, or the Board may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an ...


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