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Northeastern Eye Institute v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

December 27, 2017

Northeastern Eye Institute, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

          Submitted: January 6, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          JOSEPH M. COSGROVE, JUDGE

         Northeastern Eye Institute (Employer) petitions for review of the July 14, 2016 Order of the Unemployment Compensation Board of Review (Board), reversing the Decision of the Referee which denied unemployment compensation (UC) benefits to Ann M. Ritterbeck (Claimant). The Board concluded Claimant was not barred from receiving UC benefits by Section 402(b) of the Unemployment Compensation Law (UC Law), [1] because she established a necessitous and compelling reason for voluntarily terminating her employment. Upon review, we vacate the order of the Board and remand for further proceedings consistent with this opinion.

         Claimant worked as a licensed practical nurse for Employer from August 26, 2013 to January 15, 2016. When Claimant was initially hired, her work schedule was Monday through Friday, 7:30 a.m. to 4:30 p.m., and Employer employed three nurses. However, due to nurses leaving, Claimant was required to take on a heavier workload, to work mandatory overtime nearly every day, and to be on-call every weekend. On Wednesdays, Claimant would work at the hospital from 7:00 a.m. to as late as 11:00 p.m. Claimant consistently complained to Employer about the increased workload and accompanying stress. Employer, however, offered no accommodation. In November or December of 2015 Claimant requested to reduce her work schedule to three days per week, but Employer refused. Because of the excessive hours, Claimant voluntarily terminated her employment with Employer on January 15, 2016. Thereafter, Claimant filed for UC Benefits. (Board's Order, 4/15/16, at 1-2.)

         The Department of Labor and Industry (Department) denied Claimant's request for benefits pursuant to Section 402(b) of the Law. Claimant appealed. A hearing on Claimant's appeal was held on February 29, 2016, at which Employer failed to appear. The Referee affirmed the determination of the Department, reasoning that Claimant did not have a necessitous and compelling reason to voluntarily leave her job, concluding "the referee does not fathom why the claimant would work under such alleged intolerable conditions for over [a] period in excess of one year." (Referee's Decision, 3/4/16, at 2.) Claimant appealed the Referee's decision to the Board.

         On April 15, 2016 the Board issued an Order reversing the Referee's Decision and granting Claimant UC benefits. In so doing, the Board found that Claimant had a necessitous and compelling reason for voluntarily leaving her employment, and therefore was not ineligible for benefits under Section 402(b) of the UC Law. Specifically, the Board found Claimant testified credibly that her working conditions substantially and unilaterally changed from the original terms, that Claimant was working overtime nearly every day with excessive hours on surgery days, and was expected to be on-call every weekend, and that she did not accept the change in working conditions, requested help to no avail, requested a reduction in working days which Employer denied, and made a reasonable effort to preserve her employment. (Board's Order at 1-2.)

         Employer requested reconsideration, alleging it had not received the notice of hearing for the February 29, 2016 hearing. The Board granted reconsideration and vacated its previous action. Another hearing was held before a Referee.

         At this second hearing, it was noted that the notice of hearing entered into the record at the February 29, 2016 hearing bears Employer's correct name, although it is missing a "T, " correct address, and "Date Mailed 2/12/16" in the upper right corner. (See Reproduced Record (R.R.) at 90.) The Board ultimately held Employer did not credibly overcome the presumption of receipt of the notice and did not establish proper cause for its nonappearance at the first hearing.[2] Specifically, the Board found the notice was mailed to Employer's correct address, and was not returned as undeliverable and, therefore, Employer did not credibly overcome the presumption of receipt or establish proper cause for its nonappearance at the first hearing. As such, the Board did not consider additional testimony from the second hearing. The Board accordingly reinstated its April 15, 2016 Order granting Claimant benefits as the Decision of the Board. (Board's Order, 7/18/2016, at 1.)

         On appeal, [3] Employer raises four issues: 1) The Board committed an error of law in finding the notice of hearing was presumably received, 2) Employer's due process rights were violated when it was denied the right to question the UC staff regarding the mailing of the notice of hearing, 3) the Board committed an error of law in finding Employer had not credibly overcome the presumption of receipt, and therefore did not establish proper cause for its nonappearance at the first hearing, and 4) the Board arbitrarily and capriciously disregarded the findings of the Referee. (Employer's Brief at 4.)

         DISCUSSION

         Employer first argues the evidence of record does not support the Board's application of the mailbox rule, and therefore its finding that the February 12, 2016 notice of hearing was presumptively received was made in error. (Employer's Brief at 18.) This Court has previously stated,

[t]he [mailbox] rule applies only when there is evidence that the item was mailed. It is true that evidence of actual mailing is not required. Instead, 'when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.'

Sheehan v. Workmens' Compensation Review Board (Supermarkets Gen.), 600 A.2d 633, 636 (Pa. Cmwlth. 1991) (citing Department. of Transportation v. Brayman Construction Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) ...


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