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Bankers Life & Casualty v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

June 27, 2019

Bankers Life & Casualty, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

          SUBMITTED: June 6, 2019

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE.

         Bankers Life & Casualty (Employer) petitions for review of the November 5, 2018 decision of the Unemployment Compensation (UC) Board of Review (Board) affirming a referee's decision holding that Employer's petition for appeal was untimely under section 501(e) of the Unemployment Compensation Law (Law).[1] We now reverse and remand.

         Facts and Procedural History

         On December 11, 2017, the Duquesne UC Service Center issued a notice of determination finding Joseph W. Zuiker (Claimant) eligible for benefits under the Law.[2] (Finding of Fact No. 1.) The notice of determination was mailed to the parties' addresses of record and was not returned by the postal authorities. (Finding of Fact No. 2.) The notice of determination advised the parties that the last day to file an appeal was December 26, 2017. (Finding of Fact No. 3.) Counsel for Employer submitted an appeal via certified mail to the Duquesne UC Service Center, but the postal authorities returned the same on January 6, 2018, as undeliverable.[3](Finding of Fact No. 4.) On January 31, 2018, counsel for Employer resubmitted the appeal correspondence via fax, and included a copy of the certified mail envelope that was returned as undeliverable. (Finding of Fact No. 5.) However, the postmark on the copy of the certified mail envelope was not readable. Id.

         The referee subsequently scheduled and held a hearing regarding Employer's untimely appeal on February 26, 2018. At this hearing, Employer presented the testimony of William Weissman, the attorney for Employer who prepared and sent the original appeal to the Duquesne UC Service Center. Attorney Weissman testified that he sent the appeal on December 26, 2017, via certified mail with return receipt, to the address provided in the notice of determination, i.e., 14 N. Linden Street, Duquesne, Pennsylvania 15110-1067. He stated that the postal authorities returned the appeal to his office on January 6, 2018, marked as undeliverable and unable to forward. Attorney Weissman indicated that he sent another petition for appeal, along with the original petition and a copy of the original envelope, via fax on January 31, 2018. While he acknowledged that the postmark on the copy of the original envelope was unreadable, he noted that his customary practice was to sign and mail letters on the same date, i.e., the date reflected on the letter. (Notes of Testimony (N.T.), 2/26/2018, pp. 8-10; Reproduced Record (R.R.) at 75a-77a.)

         Employer also presented the testimony of Joshua Ford, a branch sales manager for Employer. Mr. Ford testified that Claimant had originally worked for Employer as an independent contractor selling life insurance for approximately three weeks during October and November of 2017, at which time he resigned. During that time, Claimant did not receive wages but strictly worked for commissions. Mr. Ford proceeded to testify regarding the specific nature of Claimant's work with Employer in order to establish that Claimant was an independent contractor and engaged in self-employment. However, Mr. Ford indicated that Claimant was later hired as an employee, namely as a field trainer, on January 1, 2018. (N.T., 2/26/2018, pp. 10-18; R.R. at 77a-85a.)

         On March 14, 2018, the referee issued her decision dismissing Employer's appeal as untimely. The referee noted that under section 501(e) of the Law, a party has fifteen calendar days to file an appeal with the Board. The referee also noted that section 101.82(b)(1) of the Board's regulations, 34 Pa. Code §101.82(b)(1), which addresses appeals filed by mail, provides that the filing date will be determined by the date of the official postmark on the envelope containing the appeal or the date of a postage meter mark. If no filing date can be determined by the postmark or postage meter mark, then the appeal will be deemed filed when it is received by the Board. While Attorney Weissman testified that he timely sent the appeal via certified mail on December 26, 2017, the referee stated that the copy of the envelope that was provided to support this assertion did not contain a readable date stamp.

         Employer appealed to the Board, but the Board affirmed the referee's decision. In its decision, the Board noted that Employer attached a document to its appeal that was not part of the record below and asked that it be considered to show that its appeal was timely filed.[4] However, the Board refused to consider any extra-record evidence. The Board stated that Employer should have submitted this document at the referee's hearing for it to be considered. Further, the Board denied a request from Employer to remand the matter to the referee for a decision on the merits. Employer thereafter filed a petition for review with this Court.

         Discussion

         On appeal, [5] Employer argues that the Board erred in affirming the referee's dismissal of its appeal as untimely given the uncontroverted testimony that it timely mailed the petition for appeal to the correct address, but the United States Postal Service, for unknown reasons, returned the mailing as undeliverable, and where Employer produced a clear copy of the original envelope with a postmark of December 26, 2017. For the following reasons, we agree with Employer.

         Section 501(e) of the Law states,

(e) Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board from the determination contained in any notice required to be furnished . . . within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular ...

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