            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rock Laguerre,                                :
                            Petitioner        :
                                              :
              v.                              :   No. 681 C.D. 2015
                                              :   Submitted: October 9, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: February 12, 2016

              Petitioner Rock Laguerre (Claimant), acting pro se, petitions for
review of an order of the Unemployment Compensation Board of Review, dated
March 12, 2015, which affirmed an order of an unemployment compensation
referee (Referee), dismissing Claimant’s appeal as untimely under Section 501(e)
of the Pennsylvania Unemployment Compensation Law (Law).2 We now vacate
the Board’s order and remand the matter for further proceedings.


       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e). Section 501(e) of the Law provides:
              (e) Unless the claimant . . . files an appeal with the board, from the
       determination contained in any notice required to be furnished by the department
(Footnote continued on next page…)
             Claimant filed for unemployment compensation benefits following
termination of his employment with JBS Souderton, Inc. (Employer).                          On
September 26, 2014, the Erie UC Service Center (Service Center) issued a Notice
of Determination in which it determined that Claimant was ineligible for benefits.
(Certified Record (C.R.), Item No. 2.)             The notice informed Claimant that
October 14, 2014, was the last day to file an appeal. Claimant petitioned for
appeal, and the unemployment compensation authorities stamped his appeal
document as having been received on October 17, 2014. (C.R., Item No. 3.)
             The Board assigned a Referee to conduct a hearing for the purpose of
determining whether Claimant filed a timely and valid appeal from the initial
determination. (C.R., Item No. 5.) Neither Claimant nor Employer appeared at the
hearing scheduled for November 20, 2014, and the Referee issued a decision based
upon the documentation submitted for the hearing. (C.R., Item Nos. 6, 7.) The
Referee dismissed Claimant’s appeal as untimely. (C.R., Item No. 7.) In so doing,
the Referee made the following findings of fact:
             1.      On September 26, 2014, the Erie Unemployment
                     Compensation Service Center issued a Notice of
                     Determination, which denied unemployment
                     compensation benefits to the claimant under
                     Section 402(e) of the Law.
             ....


(continued…)

      . . . within fifteen calendar days after such notice . . . was mailed to his last
      known post office address, and applies for a hearing, such determination of the
      department, with respect to the particular facts set forth in such notice, shall be
      final and compensation shall be paid or denied in accordance therewith.




                                              2
            4.    The Notice of Determination contained
                  information that the claimant has fifteen (15) days
                  from the date of the Unemployment Compensation
                  Service Center determination in which to file an
                  appeal, if the claimant disagreed with the
                  determination.
            5.    The Notice of Determination listed the last day on
                  which a valid appeal could be filed was
                  October 14, 2014.
            ....
            8.   The claimant mailed a Petition for Appeal to the
                 Notice of Determination, which denied his benefits
                 under Section 402(e) of the Law.
            9.   The envelope the Petition for Appeal was mailed in
                 did not have any postmark date or list any date to
                 show when the Petition of Appeal was mailed by
                 the postal authorities.
            10. The Erie UC Service Center and UC Board of
                 Review received the Petition for Appeal and
                 envelope in which it was mailed on
                 October 17, 2014.

(C.R., Item No. 6 (emphasis added).) The Referee reasoned:
            The evidence of record showed the claimant mailed a
            Petition for Appeal in an envelope to the Erie UC Service
            Center. However, under Pennsylvania Unemployment
            Compensation Law, the date a letter was prepared for an
            appeal cannot be used to determine whether or not the
            petition was filed in a timely manner. Further, while two
            envelopes were part of the evidence of record, the
            envelopes did not show any postmark date and/or postage
            meter mark to determine the timeliness of this appeal.
            Therefore, to determine the timeliness of the appeal, the
            Referee must rule the timeliness based on the date the
            envelope and Petition for Appeal was [sic] received by
            the UC Service Center and/or UC Board of Review.
            Here, the Erie UC Service Center and UC Board of
            Review stamped the envelope and Petition for Appeal as
            received on October 17, 2014, which was after the last
            day allowed to file a timely appeal.

                                       3
(Id.)
               Claimant appealed the Referee’s decision to the Board, asserting that
he arrived to the hearing ten minutes late because he got lost. (C.R., Item No. 8.)
The Board remanded the matter to a Referee for the purpose of scheduling another
hearing to receive testimony and evidence regarding Claimant’s reasons for his
nonappearance at the previous hearing and the merits of Claimant’s claim should
the Board determine that he had proper cause for his nonappearance. (C.R., Item
No. 10). The Board issued a notice of hearing, identifying the issue, however, as
whether Claimant filed a timely appeal. (C.R., Item No. 11.)
               Claimant appeared at the hearing and testified to the circumstances
surrounding:       (1) his late arrival to the hearing previously scheduled for
November 20, 2014;3 (2) the timing of the filing of his appeal of the Referee’s
decision; and (3) the termination of his employment with Employer.4 With regard
to the timing of the appeal, the Referee observed that the last day to appeal the
Referee’s decision was October 14, 2014, the envelope did not have a postmark,


        3
          The hearing transcript notes that part of Claimant’s testimony was “inaudible,” but it
appears that Claimant encountered a “blocked” roadway and attempted to use the GPS on his
phone to find another route to the hearing location. (C.R., Item No. 12 at 2.) He got lost and
arrived ten minutes late. (Id.)
        4
          Although the transcript again indicates that some of Claimant’s testimony was
inaudible, Claimant testified that he last worked for Employer on August 26, 2014. (C.R., Item
No. 12 at 4.) He appears to have testified that his car broke down, so he had to catch a train to
get to work. (Id.) He informed the supervisor that he would be late, arrived to work, and worked
the remainder of his shift. (Id.) The next day when he arrived at work, his supervisor informed
him that he could not work and would have to speak with human resources. (Id.) He met with
human resources, and Employer suspended and then terminated his employment. (Id.) He was
not given a reason for his termination. (Id.) Employer did not appear at the hearing to contradict
Claimant’s testimony.



                                                4
and unemployment            compensation authorities             received the envelope            on
October 17, 2014. (C.R., Item No. 12 at 3.) Claimant testified that he recalled
mailing the appeal on Tuesday, October 14th, because October 13th was a holiday.
(Id.) He mailed the appeal from the post office via priority mail. (Id.) It appears
from the record that the Referee looked at a copy of Claimant’s priority mail
envelope and observed that it did not have a postmark on it. (Id. at 4.) The
Referee asked Claimant whether he was given a receipt when he mailed the appeal,
and he said that he had received one but did not know if he still had it. (Id.)
Claimant reiterated that he mailed the appeal on Tuesday, October 14, 2014,
because October 13th was a holiday. (Id. at 5.)
               Thereafter, by decision dated March 12, 2015, the Board concluded
that, based on the Board’s regulations, Claimant’s appeal was filed on the date it
was received by the unemployment compensation authorities and was, therefore,
untimely.5 The Board then adopted and incorporated the Referee’s findings of fact


       5
         The Board’s regulation relating to the time for filing an unemployment compensation
appeal provides, in part:
       (a) A party seeking to appeal . . . shall file an appeal . . . on or before the 15th day
       after the date on which notification of the decision . . . was delivered personally to
       the appellant or mailed to him at his last known post office address.
       (b) A party may file a written appeal by any of the following methods:
               (1) United States mail. The filing date will be determined as follows:
                       (i) The date of the official United States Postal Service postmark
                       on the envelope containing the appeal, a United States Postal
                       Service Form 3817 (Certificate of Mailing) or a United States
                       Postal Service certified mail receipt.
                       (ii) If there is no official United States Postal Service postmark,
                       United States Postal Service Form 3817 or United States Postal
(Footnote continued on next page…)

                                                  5
and conclusions of law as set forth above.                  (C.R., Item No. 13.)          Claimant
petitioned this Court for review.
              On appeal,6 Claimant argues that substantial evidence does not exist
to support the Board’s finding of fact number 9 that “[t]he envelope the Petition for
Appeal was mailed in did not have any postmark date or list any date to show
when the Petition of Appeal was mailed by the postal authorities.” Claimant
contends that the Service Center made a mistake when it copied the documents it
received from Claimant by copying only a portion of the envelope and not the
entire envelope. Due to the failure to copy the entire envelope, Claimant contends
that the postmark, date, and service price did not appear on the photocopy.7 The
Board counters that the envelope did not contain a postmark, and, therefore,


(continued…)

                        Service certified mail receipt, the date of a postage meter mark on
                        the envelope containing the appeal.
                        (iii) If the filing date cannot be determined by any of the methods
                        in subparagraph (i) or (ii), the filing date will be the date recorded
                        by the Department, the workforce investment office or the Board
                        when it receives the appeal.
34 Pa. Code § 101.82.
       6
         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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       7
         Claimant attached to his brief a “Product Tracking and Reporting” document that he
obtained from postal authorities following the hearing, which appears to substantiate his claim
that he mailed the appeal via priority mail on October 14, 2014. This document, however, is not
included in the certified record and, therefore, cannot be relied upon by this Court when
considering Claimant’s appeal. See B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa.
Cmwlth. 2012). The Board does not make mention of this document.



                                                  6
pursuant to the Board’s regulations, the date of filing must be the date of receipt by
unemployment compensation authorities. As to Claimant’s contention that the
envelope was copied improperly, the Board responds that it is just as likely, if not
more so, that the postmark came off during the mailing process.
              A close inspection of the record reveals that the record does not
contain a complete copy of the envelope in which his appeal was mailed. When
one compares the copy of the priority mail envelope in which Claimant mailed his
appeal due October 14, 2014, (see C.R., Item No. 3 at 3) (October Envelope), with
the original priority mail envelope in which he mailed his appeal due
December 8, 2014 (see C.R., Item No. 8 at 7) (December Envelope), it is apparent
that the copy is incomplete.8 The top of the December Envelope, from left to right,
includes the following items: (1) the United States Postal Service (USPS) logo;
(2) the words “Priority Mail;” (3) the words “Flat Rate Envelope” followed
underneath by the words “Apply Priority Mail Postage Here;” and (4) a postage
stamp which includes (a) the USPS logo, (b) a bar code, and (c) detailed
information regarding the postage rate paid, location of mailing, date mailed, and
amount of postage paid. The top of the October Envelope, from left to right,
includes items numbers (1) through 4(b), with the only item not copied being the
detailed information contained in 4(c), relating to the postage rate paid, location of
mailing, date mailed, and amount of postage paid. Moreover, the bottom of the
December Envelope contains at the left a “USPS Tracking #” sticker and the
following words toward the right of the envelope, which appear to identify the


       8
         It is unclear why the record contains only a photograph of the October Envelope but the
original December Envelope.



                                               7
form/size of the envelope: “EP14H JAN 2011 Outer Dimension: 10 x 5.” The
bottom of the October Envelope contains a similar “USPS Tracking #” sticker, an
additional bar code sticker located in the middle and right-side portion of the
envelope, and the word “Outer” located at the far right.        It appears that the
additional bar code sticker covers some of the words that would have appeared at
the right of the envelope, but the sticker ends before the word “Outer.” It further
appears that the remainder of the words identifying the form/size of the October
Envelope was not copied. Also, there is a thick red line that runs along the entire
top and bottom of the December Envelope. On the copy of the October Envelope,
only the bottom line was copied. The line stops at the end of the word “Outer,”
suggesting that the copy of the envelope abruptly ends there. The end of the line is
directly beneath the end of item 4(b), just before the location where information
regarding the postage rate paid, location of mailing, date mailed, and amount of
postage paid should have appeared. Thus, the finding that the October Envelope
did not have a postmark date or list a date to show when it was mailed is not
supported by substantial evidence, because the evidence of record shows that the
original October Envelope contained a partial postmark that was not fully copied
by unemployment compensation authorities.          Because the original October
Envelope was not copied in its entirety, the full postmark did not appear on the
copy of the October Envelope.
            Because the record contained an incomplete copy of the original
October Envelope, the Board erred in relying upon the envelope for purposes of
applying 34 Pa. Code § 101.82. We note that the only competent evidence before
the Board was Claimant’s unwavering and uncontested testimony that he mailed
the appeal on October 14, 2014. Claimant represents in his brief that since his


                                         8
hearing before the Referee, he has obtained proof of mailing of his appeal on
October 14, 2014.    Given that it is now apparent that the unemployment
compensation authorities failed to maintain a complete record, we will remand the
matter to the Board with instruction that Claimant be permitted to supplement the
record to include proof of when he mailed the appeal—i.e., the “Product Tracker
and Reporting” document attached to Claimant’s brief to this Court. The Board
shall consider this document when issuing new findings of fact and conclusions of
law.
            Accordingly, the Board’s order is vacated, and the matter is remanded
to the Board for supplementation of the record and consideration of the timeliness
of Claimant’s appeal, and, if timely, the merits of Claimant’s appeal, including
whether Claimant had good cause for his failure to arrive timely to the hearing
scheduled for November 20, 2014.




                               P. KEVIN BROBSON, Judge




                                        9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rock Laguerre,                           :
                         Petitioner      :
                                         :
            v.                           :   No. 681 C.D. 2015
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


            AND NOW, this 12th day of February, 2016, the order of the
Unemployment Compensation Board of Review (Board) is hereby VACATED,
and the matter is REMANDED to the Board for further proceedings consistent
with the attached opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
