Pinnacle Health Hosps. v. Unemployment Comp. Bd. of Review ( 2019 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pinnacle Health Hospitals,               :
    Petitioner             :
    :   No. 1025 C.D. 2018
    v.                           :
    :   Argued: April 9, 2019
    Unemployment Compensation                :
    Board of Review,                         :
    Respondent
    BEFORE:     HONORABLE ROBERT SIMPSON, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION BY
    JUDGE McCULLOUGH                                             FILED: May 31, 2019
    Pinnacle Health Hospitals (Employer) petitions for review of the June
    26, 2018 order of the Unemployment Compensation Board of Review (Board), which
    affirmed the decision of a referee finding David L. Lisco (Claimant) eligible for
    unemployment compensation (UC) benefits. This case presents an issue of first
    impression with regard to the mailbox rule. Specifically, we are asked to clarify what
    constitutes a regular place of mailing for purposes of application of the presumption
    of receipt. For the reasons set forth below, we reverse and remand.
    Facts and Procedural History
    Claimant was terminated from his employment with Employer as a
    pharmacist for excessive use of the internet while working. Claimant applied for
    benefits and the local service center found him ineligible. Claimant filed an appeal
    and a notice of hearing was allegedly mailed to Employer on October 31, 2017. The
    notice was not returned as undeliverable. (Board’s Findings of Fact (F.F.) Nos. 1-3.)
    After a hearing at which Claimant was the only party to appear, the referee issued a
    decision finding Claimant eligible for benefits. Employer appealed to the Board,
    which ordered a remand hearing “to receive testimony and evidence on []
    [E]mployer’s reason for its nonappearance at the [referee] hearing,” as well as
    additional testimony and evidence on the merits. (Reproduced Record (R.R.) at 29a.)
    Employer received the notice scheduling the remand hearing for March 12, 2018.
    (R.R. at 32a.) Claimant and Employer, through its attorney, appeared at the remand
    hearing.
    During the hearing, Employer argued that the notice of hearing was not
    mailed by the referee’s office, nor was it received by Employer. Employer presented
    the testimony of four witnesses: Two testified regarding how Employer receives and
    processes mail, and two testified regarding Claimant’s employment and the merits of
    Claimant’s UC claim.
    Employer’s first witness, Lisa Via, testified she had been employed by
    employer for 21 years, the majority of which she served as the Operations Manager
    for Employer’s mail services. Ms. Via testified that Employer receives its mail from
    a courier who picks it up from the post office. She stated the mail is then taken to
    Employer’s mailroom in boxes, at which point it is sorted and put into separate boxes
    with Employer’s different departments listed on them.          Ms. Via stated that
    Employer’s mailroom pays particular attention to pieces of mail that come from the
    Department of Labor and Industry (Department), which are placed in a separate box
    designated for Human Resources (HR) at Brady Hall. That mail is then taken by a
    mail clerk to HR, and placed in a bin at the front desk of the HR Office. Ms. Via
    2
    stated there is a quality-assurance mechanism to ensure the mail gets to its correct
    location in that either the team leader or Ms. Via checks the baskets and tables in the
    mailroom at the end of each day to ensure there is no mail left. (R.R. at 34a-36a.)
    Employer also presented the testimony of Allison Beck, Employer’s
    Manager of Employee Relations. Ms. Beck testified that she worked in Employer’s
    HR office. Ms. Beck explained that once mail is delivered from the mailroom and
    left at the front desk of the HR office, it is opened and separated by the HR office’s
    secretary, who specifically directs any mail listing “Unemployment Compensation”
    to Ms. Beck’s mailbox, which she checks several times a day. (R.R. at 37a.) Ms.
    Beck stated that she is the sole person designated by Employer to receive notices
    from the Department involving unemployment compensation. Ms. Beck testified
    that, although she was awaiting the notice of hearing after Claimant filed an appeal,
    she did not receive the notice of hearing for the initial hearing before the referee and,
    thus, was unaware of the date and time of the hearing. (R.R. at 37a-38a.)
    After the hearing, the Board issued an order directing another remand
    hearing for the purpose of gathering evidence on whether the notice of hearing was
    mailed from the referee’s office. Additionally, the Board noted that “[a]n answer to
    the following question . . . would be helpful: Does the [r]eferee’s office have any
    evidence to indicate that the notice of hearing was placed in the regular place of
    mail?” (R.R. at 67a.)
    The second remand hearing was held on April 30, 2018, at which
    Claimant, Employer, and Mary Krysakowski, the Clerk Typist for the referee,
    appeared. Ms. Krysakowski testified that it is her responsibility to schedule hearings
    two weeks prior to the date on which they were to be held. To do so, she stated that
    she pulls all files from the file drawer and enters all the information from each file
    3
    into an automated system, after which she prints out the necessary number of copies
    of hearing notices for each hearing. Ms. Krysakowski stated that she then “add[s] all
    the information that needs to go in the List of issues, the blue sheet of translator’s
    information[,] and [] the translation card,” and she “fold[s] everything up, put[s] them
    in envelopes, [and] put[s] them in a basket that will be picked up by our mailroom at
    1:00.” (R.R. at 71a.) (emphasis added). Ms. Krysakowski testified that she could
    remember nothing specific about Employer’s notice of hearing, but she did observe
    that the notice would have been mailed prior to the date that the referee’s office
    moved locations.
    On cross-examination, Ms. Krysakowski acknowledged that she does
    not personally deposit the notices in the mail or affix the postage to the envelopes,
    and that the referee’s office does not get a proof of mailing certificate from the post
    office. Ms. Krysakowski indicated that, although she did not keep a log of when
    notices were sent, “[b]y our own rules and regulations,” the notices “have to go out
    two weeks prior” to the hearing date. (R.R. at 74a.) Ms. Krysaksowki observed that
    the notice of hearing itself bears the date of mailing. Finally, noting that Claimant
    received his hearing notice, Ms. Krysakowski indicated that both parties’ notices
    would have been deposited in the same basket. (R.R. at 75a-77a.)
    By decision and order dated June 26, 2018, the Board affirmed the
    referee’s decision and granted Claimant benefits.        With regard to Employer’s
    argument that the notice was not mailed, the Board stated that actual evidence of
    mailing is not required and evidence of custom is acceptable proof to establish that a
    letter placed in the regular place of mailing was sent. The Board reiterated Ms.
    Krysakowski’s testimony regarding how she processes the notices of hearing and
    found significant Ms. Krysakowski’s testimony that both parties’ notices would have
    4
    been placed in the same basket. The Board found that Employer’s notice of hearing
    was placed in the regular place of mail, relying upon Ms. Krysakowski’s testimony
    regarding the custom of placing the notice of hearing in the regular place of mailing.
    Accordingly, the Board determined there was insufficient evidence to nullify the
    presumption that the notice of hearing was received by Employer, and it declined to
    consider Employer’s testimonial evidence regarding the merits of Claimant’s claim
    presented at the first remand hearing.1 Given the evidence before it, the Board agreed
    with the referee’s finding that Employer failed to meet its burden of establishing that
    Claimant’s discharge was for willful misconduct. (Board’s final decision and order at
    2-3.)
    Employer petitions for review,2 arguing the Board erred in determining
    Employer received the notice of hearing despite the absence of evidence that the
    referee’s office sent the notice or that Employer received it.
    Discussion
    This Court has held that it is inappropriate for the Board to consider
    evidence of a party on the merits of a case when the party has not established a proper
    cause for failure to appear at the first hearing.                   Sanders v. Unemployment
    Compensation Board of Review, 
    524 A.2d 1031
    , 1033 (Pa. Cmwlth. 1987); 
    34 Pa. 1
             “If any party duly notified of the date, hour and place for a hearing fails to appear without
    proper cause, the hearing may be held in his absence.” 34 Pa. Code §101.51. The Department’s
    regulations define notice as the mailing of any notice to the parties at their last known address. 34
    Pa. Code §101.53.
    2
    This Court’s standard of review is limited to determining whether constitutional rights
    were violated, whether an error of law was committed, or whether necessary findings of fact are
    supported by substantial evidence. 2 Pa.C.S. §704.
    5
    Code §101.51 (“If a party notified of the date, hour and place of a hearing fails to
    attend a hearing without proper cause, the hearing may be held in his absence.”).
    Non-receipt of the hearing notice can constitute proper cause for failure to attend a
    hearing. Volk v. Unemployment Compensation Board of Review, 
    49 A.3d 38
    , 45 (Pa.
    Cmwlth. 2012) (en banc); Coin Automatic Laundry Equipment Co. v Unemployment
    Compensation Board of Review, 
    447 A.2d 690
    , 691 (Pa. Cmwlth. 1982). “[T]he
    Department’s regulation at 34 Pa. Code § 101.104(c)[3] provides that, once a party
    [who wishes to have his evidence on the merits considered] makes a request for a
    hearing and appeal under 34 Pa. Code § 101.24,[4] the Board is required to allow the
    3
    In pertinent part, this regulation states,
    The further appeal shall be allowed and additional evidence required
    in any of the following circumstances:
    ...
    (3) Under § 101.24 (relating to reopening of hearing) a
    request for reopening received after the decision of the
    referee was issued which constitutes a request for
    further appeal to the Board.
    34 Pa. Code §101.104(c).
    4
    In pertinent part, this regulation states,
    (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[.]
    ...
    (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
    (Footnote continued on next page…)
    6
    further appeal and to allow the introduction of additional evidence.” 
    Volk, 49 A.3d at 46
    .
    Here, Employer alleged not only that it did not receive the notice of
    hearing, but also that the notice of hearing was not sent by the referee’s office, which,
    if proven, would constitute proper cause.             
    Id. at 45.
         The Board reviewed the
    testimonial evidence of Ms. Krysakowski, as well as Employer’s witnesses, and
    determined the presumption of receipt applied and had not been rebutted by
    Employer.
    In Blast Intermediate Unit # 17 v. Unemployment
    Compensation Board of Review, 
    645 A.2d 447
    (Pa.
    Cmwlth. 1993), this Court recognized two component
    presumptions, both rebuttable, that arise when a party
    challenges a public official’s claim to have placed an order
    in the mail: (1) the presumption of the regularity of the acts
    of public officials (which is used to establish that a public
    official placed an item into the mail); and (2) the
    presumption of receipt (i.e., that a properly mailed letter to
    the last known address of the addressee which is not
    returned undelivered by the postal authorities was timely
    received by the addressee—i.e., the mailbox rule). See
    
    Blast, 645 A.2d at 449
    . We explained that the two
    presumptions are applied separately and that there must be
    some evidence to support the first presumption before the
    (continued…)
    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. . . .
    34 Pa. Code §101.24(a), (c). Notably, however, in Volk, this Court held that the Board “must
    provide the [party] against whom the presumption of receipt is being asserted the opportunity to
    submit evidence to rebut that presumption and to support the asserted reasons believed to be proper
    cause for not appearing at the hearing before the Board determines whether the [party] had proper
    cause for not attending the 
    hearing.” 49 A.3d at 47
    .
    7
    second presumption may be applied. In other words, “the
    presumption of receipt is ‘inapplicable’ in the absence of
    proof that the notice was mailed. ‘[U]ntil there is proof that
    a letter was mailed, there can be no presumption that it was
    received.’” 
    Id. (quoting Leight
    v. Unemployment Comp.
    Bd. of Review, 
    410 A.2d 1307
    , 1309 (Pa. Cmwlth. 1980)
    (alteration in original)).
    Douglas v. Unemployment Compensation Board of Review, 
    151 A.3d 1188
    , 1192 (Pa.
    Cmwlth. 2016) (emphasis added). Additionally, in Blast, we held, “[T]he mere
    existence of a rule requiring an act to be performed by a public official is not
    sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of
    the 
    notice.” 645 A.2d at 449
    (internal quotation marks omitted). Instead, “The
    presumption only comes into play when there is on record some other indication that
    the act in question had been performed, such as a notation to that effect made by a
    local bureau official that the letter had been deposited in the mail.” 
    Id. (emphasis added)
    (internal quotation marks omitted).
    “[U]nless a rule or regulation specifies otherwise, proof of [actual]
    mailing is not a requirement for a party to prove that a document was actually
    mailed.” C.E. v. Department of Public Welfare, 
    97 A.3d 828
    , 833 (Pa. Cmwlth.
    2014) (emphasis in original). 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.”        Department of Transportation v. Brayman
    Construction Co.—Bracken Construction Co., 
    513 A.2d 562
    , 566 (Pa. Cmwlth. 1986)
    (quoting Christie v. Open Pantry Marts, 
    352 A.2d 165
    , 166-67 (Pa. Super. 1975)).
    “It is well settled that the presumption in the mailbox rule is not nullified by
    testimony denying receipt of the item mailed.” Brayman Construction 
    Co., 513 A.2d at 566
    .
    8
    Here, in support of the first presumption, the referee’s office offered Ms.
    Krysakowski’s testimony. As described above, Ms. Krysakowski testified about how
    she processes and prepares the notices for mailing. However, as Employer notes, she
    could not testify about what happens to the notices after they are retrieved from the
    basket on her desk by a member of the mail room, nor could she testify how postage
    is affixed to the envelopes or how the notices are actually placed in the U.S. Mail.
    Employer notes that the record does not contain any notation that the notice of
    hearing was mailed to Employer. Moreover, although the Board found significant
    that the notice itself contained the date of mailing, this Court has held that the mere
    fact the item contains the date of mailing does not, without more, establish proof of
    mailing. See 
    Douglas, 151 A.3d at 1193
    (“[A]lthough the Notice of Determination
    indicated that it was mailed on February 3, 2016, that, in and of itself, without more is
    insufficient to establish proof of mailing in the face of a challenge, because it is
    apparent that the ‘mailed date’ was part of the information included in the notice
    itself at the time the notice was prepared.”).
    Employer asserts that, in order to get the presumption of regularity, there
    has to be testimony indicating how postage is routinely affixed to the envelopes and
    how, specifically, the notices are put in the mail or, alternatively, evidence in the
    record, such as a notation, indicating the hearing notices were sent out.          Here,
    Employer observes that “[t]he Department did not produce a witness to testify
    whether or how the [n]otice of [h]earing was affixed with the proper amount of
    postage or even that the [n]otice was placed in the mail.” (Employer’s brief at 15.)
    Furthermore, Employer contends that the basket on Ms. Krysakowski’s
    desk “was not the place of mailing since someone from the mailroom would have to
    come and pick[]up the mail.” 
    Id. Even with
    the presumption of regularity, Employer
    9
    contends that, at most, the Board could conclude that Ms. Krysakowski usually
    placed the notices in a basket to be picked up by mailroom employees; however, this
    could not lead to the conclusion that the notices were usually picked up and taken to
    the mailroom, had postage affixed, and were deposited into the mail.
    Although this Court has addressed the mailbox rule innumerable times,
    we have not yet been presented with the question of what constitutes a regular place
    of mailing. In applying the mailbox rule, this Court has alternatively used the phrases
    “regular place of mailing,” or “usual place of mailing,” and “into the mail.” Compare
    
    Blast, 645 A.2d at 449
    (using “in the mail”), and 
    Brayman, 513 A.2d at 566
    (using
    “regular place of mailing” and “usual place of mail”), with 
    Douglas, 151 A.3d at 1191
    (using “in the mail”). In reading this case law cohesively, we hold that the
    regular place of mailing is the place where the properly addressed letter, with postage
    affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or
    other location where a mail carrier retrieves the mail. Accordingly, in order for the
    Board to utilize the presumption of regularity in order to invoke the presumption of
    receipt, it must present evidence regarding how properly addressed items, with proper
    postage affixed, customarily enter the mail or, alternatively, show “some other
    indication that the act in question had been performed” such as a notation in the
    record indicating that “the letter had been deposited in the mail.” 
    Blast, 645 A.2d at 449
    .
    Applying this holding to the present case, we conclude that the Board
    did not present sufficient evidence for the presumption that Employer received the
    notice because Ms. Krysakowski’s testimony could not and did not address how and
    when the notices she prepares enter the mail or whether the notices receive the proper
    postage prior to their mailing, as she only places mail in a basket on her desk, which
    10
    must then be picked up and further processed.               Indeed, Ms. Krysakowski
    acknowledged that the basket on her desk was not the place where the notices
    customarily entered the U.S. Mail. Accordingly, we must remand to the Board for
    consideration of the evidence Employer submitted regarding the merits of Claimant’s
    appeal. On remand, the Board should issue findings on the credibility of Employer’s
    witnesses, as well as the credibility of Claimant’s testimony.
    Finally, we disagree with the Board’s contention during argument that
    the workers’ compensation case, Sheehan v. Workmen’s Compensation Appeal Board
    (Supermarkets General), 
    600 A.2d 633
    (Pa. Cmwlth. 1991), mandates a different
    result. In Sheehan, an employee appealed from a decision suspending his workers’
    compensation benefits, and the primary issue involved the extent to which the
    employer had to take into account his physical limitations when offering him a
    position. The employee made additional arguments, including that the employer had
    not proved he had received the notice of the job referral. 
    Id. at 636.
                 The referee found that the employer had notified the employee of the
    position, basing the finding on the testimony of the employer’s assistant supervisor,
    who testified that “he wrote and signed a letter on January 29, 1986, to [c]laimant,
    advising him that a position was available,” and that while “he did not personally
    mail letters,” he “customarily [gave] them to the secretaries to be mailed.” 
    Id. This Court
    held that the assistant supervisor’s testimony was “sufficient to show that the
    referral was written and signed in the usual course of business and placed in the
    regular place of mailing.” 
    Id. Sheehan, however,
    does not require a different outcome in the present
    case as it is not ostensibly inconsistent with the holding we set forth today. Initially,
    we note that Sheehan has never been cited by this Court or our Supreme Court for the
    11
    proposition that a party is entitled to the presumption of receipt without first having
    provided evidence that the letter was prepaid, properly addressed, and placed in the
    mail.5       Furthermore, unlike in the present case, the witness in Sheehan was able to
    testify to writing and addressing the specific letter at issue and, moreover, was able to
    identify how the letter was entered into the mail—namely, the employer’s secretaries.
    Conversely, here, Ms. Krysakowski could not testify about how the notices entered
    the mail after they left her desk, or whether they had proper postage affixed
    beforehand. Furthermore, it is significant that the claimant in Sheehan was not
    prejudiced by the alleged non-receipt of the notice in that it did not cause him to miss
    a hearing, file a late appeal, or, like Employer here, result in his inability to present
    evidence on the merits of the issue before the referee.
    Conclusion
    Today, we hold that the regular place of mailing is the place where the
    item enters the U.S. Mail system, be it a mailbox, post office, or the location where
    5
    Because Sheehan does not specifically state whether the assistant supervisor placed proper
    postage on the envelopes or how specifically the secretaries put the letter in the mail, we can only
    guess. However, even to the extent that Sheehan could stand for the proposition that the Board was
    not required to present evidence of how the letter entered the mail or whether it had postage, such a
    holding would be inconsistent with both prior and subsequent precedent. See Jensen v. McCorkell,
    
    26 A. 366
    , 367 (Pa. 1893) (“[I]t is well settled that the fact of depositing in the post office a
    properly addressed, prepaid letter raises a natural presumption, founded in common experience,
    that it reached its destination by due course of mail; in other words, it is prima facie evidence that it
    was received by the person to whom it was addressed; but that prima facie proof may be rebutted by
    evidence showing it was not received.” (emphasis added)); Whitmore v. Dwelling House Insurance,
    
    23 A. 1131
    , 1131 (Pa. 1892) (Detailed testimony from plaintiff that he “prepared [the letter],
    inclosed [sic] it in an envelope properly stamped and addressed . . . and placed it in the post office”
    was sufficient to raise presumption it was received.); see also Northeastern Eye Institute v.
    Unemployment Compensation Board of Review, 
    176 A.3d 455
    , 458 (Pa. Cmwlth. 2017) (en banc)
    (reversing the Board for failure to follow the principles outlined in 
    Douglas, 151 A.3d at 1192
    ,
    requiring evidence the letter was mailed); Volk.
    12
    the mail carrier picks up the mail. In applying our holding to the matter at hand, we
    conclude that the presumption of receipt did not apply to Employer because the
    testimony of Ms. Krysakowski did not identify how the notices, with proper postage,
    entered the mail. Therefore, Employer was entitled to consideration of the evidence
    it presented on the merits. Accordingly, the order of the Board is reversed and the
    matter is remanded for further proceedings consistent with this opinion.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pinnacle Health Hospitals,               :
    Petitioner             :
    :    No. 1025 C.D. 2018
    v.                           :
    :
    Unemployment Compensation                :
    Board of Review,                         :
    Respondent
    ORDER
    AND NOW, this 31st day of May, 2019, the June 26, 2018 order of the
    Unemployment Compensation Board of Review is reversed and the matter is
    remanded for further proceedings not inconsistent with this opinion.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    

Document Info

Docket Number: 1025 C.D. 2018

Judges: Simpson, McCullough, Leadbetter

Filed Date: 5/31/2019

Precedential Status: Precedential

Modified Date: 10/19/2024