       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. McNulty,                                :
                              Petitioner        :
                                                :
                      v.                        :   No. 1976 C.D. 2015
                                                :   Submitted: April 22, 2016
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                             FILED: June 15, 2016


       John J. McNulty (Claimant) petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming the UC
Referee’s (Referee) decision to deny Claimant UC benefits under Section 402(e) of
the Unemployment Compensation Law (Law).1 On appeal, Claimant argues that
the Board used an incorrect standard to evaluate whether he had sufficient cause
for his non-appearance at the first hearing, that he did have such cause, and that the


       1
         Act of December, 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (providing, in relevant part, that a claimant is ineligible for UC benefits for any week in
which the claimant is unemployed due to discharge occasioned by the claimant’s willful
misconduct in connection with the claimant’s former work).
Board should have considered the evidence Claimant presented on the merits of his
case. Discerning no error, we affirm.
      Claimant was employed by Fresh Start Foundation (Employer) from May
22, 2012 to April 15, 2015, when he was discharged for violating “[E]mployer’s
standards of professional behavior policy.” (Referee Decision, Findings of Fact
(FOF) ¶¶ 1, 14.) On April 23, 2015, Claimant applied for UC benefits. (Claim
Record, R. Item 1.) Claimant’s application was denied by the Local Service
Center. (Notice of Determination, R. Item 6.) Claimant appealed, and the matter
was assigned to the Referee. The Referee sent notice of the time, place, and date
the hearing would be conducted (Notice) to Employer and to Claimant at his last
known address. (Notice of Hr’g, R. Item 9; Hr’g Tr. at 1, R. Item 10.) Claimant
was not present for the first hearing. (Hr’g Tr. at 1.)
      The Referee accepted evidence from Employer and subsequently made the
following findings of fact:

      1.   The claimant was last employed as a full-time Case Manager
           with the employer from May 22, 2012 until April 15, 2015 at a
           final rate of pay of $12 per hour.

      2.   The claimant’s last day of work was April 2, 2015.

      3.   The employer has [a] standards of professional behavior policy;
           under the employer’s policy, every employee must fulfill the
           duties assigned to him/her as directed and in a timely and
           appropriate manner.

      4.   The standards of professional behavior state that threatening,
           intimidating or coercing others, using abusive or profane
           language and conduct that negatively impacts on the employer’s
           professional image, reputation and/or well-being of the employer,
           its employees or the consumers is cause for termination from
           employment.

                                           2
      5.   The claimant was aware or should have been aware of the
           employer’s standards of professional behavior[,] as he had
           acknowledged receiving the handbook, and was made aware of
           the standards of professional behavior during his orientation.

      6.   The claimant’s shift was from 3:00 PM to 11:00 PM.

      7.   On April 2, 2015, the program supervisor wanted to discuss with
           the claimant an incident, which had happened the previous day.

      8.   The claimant and the supervisor were in the supervisor’s office.

      9.   The claimant was extremely loud and belligerent.

      10. The program supervisor told the claimant to sit down; the
          claimant refused to sit down, continued to be loud, started using
          profanities, stated “F**k the job,” and used the profanities
          toward[s] the program supervisor.

      11. The claimant then walked out of the office using foul language,
          which was heard by the consumers.

      12. The claimant left the workplace at 3:30 PM without permission
          of the employer.

      13. The claimant was suspended on April 2, 2015, and put on
          administrative leave.

      14. On April 15, 2015, the employer discharged the claimant for
          violating the employer’s standards of professional behavior
          policy.


(FOF ¶¶ 1-14.)     The Referee reasoned, inter alia, that Employer’s credible
testimony established that Claimant violated Employer’s reasonable standards of
professional conduct.    (Referee Decision.)    Therefore, the Referee issued a
decision upholding the determination that Claimant was ineligible for benefits
under Section 402(e) of the Law. (Id.)


                                         3
       Claimant appealed to the Board, arguing that he never received the Notice.
(Claimant’s Petition for Appeal, R. Item 12.) The Board remanded the matter for a
hearing at which the Referee, acting as a hearing officer, was to accept evidence on
whether Claimant had “proper cause” for his absence from the first hearing and to
adduce additional testimony from Claimant on the merits. (Remand Memo &
Order, R. Item 13.)
       At the remand hearing, Claimant testified that he never received the Notice.
(Remand Hr’g Tr. at 4, R. Item 16.) Claimant verified that the address to which
the Notice was sent was his, that he received his mail himself, and that he had not
experienced trouble receiving other mail. (Id. at 4-5.) The Referee noted that the
Notice was not returned by the postal service as undeliverable.                     (Id. at 5.)
Moreover, Claimant testified that he received the Referee’s Decision, which was
sent to the same address as the Notice.              (Id. at 5; Notice of Hr’g; Referee
Decision.) Claimant offered no additional evidence to support his assertion that he
did not receive the Notice. (Remand Hr’g Tr. at 5.) Claimant offered further
testimony on the merits of the case. (Id. at 5-12.)
       After reviewing the remand hearing transcript, the Board observed that the
Notice was “sent to the claimant’s correct address and was not returned as
undeliverable,” and it did not find Claimant’s testimony that he did not receive the
Notice credible. (Board Order.) Therefore, the Board ruled that Claimant was
without “good cause” for missing the first hearing. (Id.) Accordingly, the Board
did not consider Claimant’s additional testimony on the merits and affirmed the
Referee’s Decision. (Id.) Claimant now petitions this Court for review.2

       2
       “Our scope of review of the Board’s decision is to determine whether an error of law
was committed, constitutional rights were violated, or whether the necessary findings of fact are

                                               4
       On appeal, Claimant contends that, in considering his reason for missing the
first hearing, the Board erroneously applied a “good cause” standard where the
regulation at 34 Pa. Code § 101.24(a) requires a “proper cause” standard.
Moreover, Claimant contends that the Board’s determination that he was not
credible, by itself, was an insufficient basis for determining that he lacked proper
cause for missing the first hearing, and as such, his additional testimony on the
merits should be considered by the Board. Lastly, Claimant argues that the Board
abused its discretion by not considering his testimony on the merits,
notwithstanding his cause for non-appearance at the first hearing. In response, the
Board contends that “good cause” and “proper cause” are legally indistinguishable
standards, and therefore, the inquiry under both is identical. Further, the Board
contends that Claimant’s unsubstantiated assertion that Claimant did not receive
the Notice is not sufficient cause to reopen a hearing.
       We consider first whether “good cause” is a different standard than “proper
cause” under 34 Pa. Code § 101.24(a). At the outset, we note that Claimant is
correct that 34 Pa. Code § 101.24, by its terms, provides in pertinent 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.

           ....


supported by substantial evidence.” Dep’t of Labor & Indus. v. Unemployment Comp. Bd. of
Review, 131 A.3d 597, 600 n.6 (Pa. Cmwlth. 2016). “The Board’s findings are conclusive on
appeal so long as the record, when viewed in its entirety, contains substantial evidence to support
the findings.” Western and Southern Life Ins. Co. v. Unemployment Comp. Bd. of Review, 913
A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).

                                                5
        (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.

34 Pa. Code § 101.24(a), (c) (emphasis added). However, when it has interpreted
and applied the term “proper cause,” the Pennsylvania Supreme Court used the
term “good cause” to explain what “proper cause” is under 34 Pa. Code § 101.24.
McNeill v. Unemployment Comp. Bd. of Review, 511 A.2d 167, 169 (Pa. 1986).
       In McNeill, an employer was not present at a hearing at which a referee
accepted and credited evidence from a claimant and subsequently found the
claimant eligible for UC benefits. Id. at 167-68. The employer appealed without
stating a reason for its absence from the first hearing. Id. The Board, without
inquiry into the employer’s reason for its non-appearance, remanded the matter for
another hearing on the merits.3 Id. This Court affirmed, but the Supreme Court
reversed. Id. at 168-69. The Supreme Court held that the Regulation required
“proper cause” before a case could be reopened.4 Id. at 169. However, the
Supreme Court further explained that, under 34 Pa. Code § 101.24, “[i]f a party
fails to appear at a scheduled hearing, that party must show good cause” before the
Board remands for another hearing. McNeill, 511 A.2d at 169 (emphasis added).




       3
          At this hearing, the employer adduced evidence upon which the Board relied in finding
that the claimant was ineligible for UC benefits. McNeill, 511 A.2d at 168.
        4
          Claimant cites this case as establishing that “proper cause” is the correct inquiry when a
party misses a first hearing with a referee and subsequently seeks another hearing to adduce
evidence on the merits. However, Claimant does not acknowledge that in this case “good cause”
and “proper cause” are used interchangeably.

                                                 6
In fact, while referring to the same evidentiary burden, the Supreme Court used the
terms “proper cause” and “good cause” interchangeably. Id.
       This Court also has used the term “proper cause” interchangeably with
“good cause.” In Verdecchia v. Unemployment Comp. Bd. of Review, 657 A.2d
1341, 1343-44 (Pa. Cmwlth. 1995), this Court inquired into whether an employer
had “good cause” for failing to appear at a hearing, and held that the employer had
“proper cause.”5 Moreover, in Verdecchia, the Board’s order (which was appealed
to this Court) stated that the employer had “good cause” for its non-appearance at
the hearing because the post office failed to timely forward the employer’s mail.
Id. at 1343. In describing the Board’s determination, we stated that “the Board
determined that [the employer] had ‘proper cause’” for missing the hearing and
affirmed that determination. Id. at 1344.
       These cases evince the interchangeability of the terms “proper cause” and
“good cause.” In McNeill, the Supreme Court indicated that under 34 Pa. Code §
101.24(a), a party who had “good cause” had “proper cause.” McNeill, 511 A.2d
at 169. In Verdecchia, “good cause” and “proper cause” were treated as the same
inquiry. Verdecchia, 657 A.2d at 1344. Therefore, we conclude that the Board did
not err in using the term “good cause” and that it applied the correct legal standard
when evaluating Claimant’s justification for missing the first hearing.
       We next consider whether Claimant had sufficient cause to justify his non-
appearance at the first hearing and, by implication, whether his subsequent
testimony on the merits may be considered by the Board. We note at the outset
that, in Pennsylvania, courts presume that mail sent to “a claimant’s last known

       5
        Claimant cites this case in support of the proposition that the analysis of “good cause”
and “proper cause” is different. However, as in McNeill, we used those terms interchangeably.

                                               7
address,” which is not returned as undeliverable, has been received by the
claimant. Mihelic v. Unemployment Comp. Bd. of Review, 399 A.2d 825, 827
(Pa. Cmwlth. 1979). A denial of receipt of notice, by itself, is insufficient to
dislodge the presumption. Sheehan v. Workmen’s Comp. Appeal Bd.
(Supermarkets General), 600 A.2d 633, 636 (Pa. Cmwlth. 1991). The Board need
not accept even uncontroverted testimony regarding receipt of notice if it could
conclude that testimony was not credible. Gaskins v. Unemployment Comp. Bd.
of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981).            The Board makes all
determinations as to witness credibility and the weight evidence should be
assigned. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106,
1108 (Pa. Cmwlth. 1994).        “We will not disturb the Board’s credibility
determinations.” Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288,
1291 n.4 (Pa. Cmwlth. 2013).
      Here, the Board did not credit Claimant’s testimony that he did not receive
the Notice. (Board Order.) Indeed, Claimant admitted that the address to which
the Notice was sent was correct, that the Claimant himself retrieved his mail, and
that he did not have any trouble receiving his mail at the time when the Notice was
mailed. (Remand Hr’g Tr. at 4.) Since credibility determinations are the domain
of the Board, this Court cannot reweigh those findings. Doyle, 58 A.3d at 1291
n.4. To the extent Claimant asserts that the Board cannot find that he lacked
proper cause based solely upon its credibility determination, we have held that the
Board need not accept even uncontroverted testimony regarding receipt of notice
where it could determine that the testimony was not credible. Gaskins, 429 A.2d at
140. Accordingly, Claimant’s testimony that he did not receive Notice, absent
some form of corroboration, is legally insufficient to rebut the presumption that


                                        8
mail which is not returned undeliverable has been delivered. Sheehan, 600 A.2d at
636. Therefore, we cannot find that the Board erred by concluding that Claimant
lacked proper cause to be absent from the Referee’s hearing.
      Because Claimant lacked proper cause for his absence from the first hearing,
no additional evidence or testimony on the merits may be adduced or considered.
McNeill, 511 A.2d at 169. Indeed, we previously have stated that when a non-
appearing party lacks proper cause for its non-appearance, a hearing may be
conducted, and a decision may be based upon the evidence presented at such a
hearing. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 439 (Pa.
Cmwlth. 2000). Here, the Board found that Claimant engaged in willful
misconduct, and was consequently disqualified for UC benefits under Section
402(e) of the Law.    (Board Order.)    Specifically, the Board incorporated the
Referee’s findings that Claimant directed profanities towards his supervisor in
violation of Employer’s standards of professional behavior policy, of which
Claimant was aware. (FOF ¶¶ 10, 14.) It is well established that “unprovoked
abusive or offensive language may constitute willful misconduct” under Section
402(e) of the Law. Brandt v. Unemployment Comp. Bd. of Review, 643 A.2d 78,
80 (Pa. 1994). Accordingly, once Employer met its burden of proving willful
misconduct, the burden shifted to Claimant to show that his “actions did not
constitute willful misconduct under the circumstances or that he . . . had good
cause for the behavior.” Kelly, 747 A.2d at 438-39. Because Claimant was not
present at the Referee’s hearing, he was unable to adduce any evidence or
testimony, and consequently, as a matter of law, Claimant was unable to carry his
burden. Because Claimant was unable to show good cause, the Board did not



                                        9
abuse its discretion by determining that Claimant was disqualified by Section
402(e) of the Law from receiving UC benefits.


      Accordingly, the Board’s Order is affirmed.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                       10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. McNulty,                       :
                        Petitioner     :
                                       :
                   v.                  :   No. 1976 C.D. 2015
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :



                                     ORDER


     NOW, June 15, 2016, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
