           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jody L. Lamison,                              :
                       Petitioner             :
                                              :
               v.                             :   No. 1213 C.D. 2019
                                              :   Submitted: February 21, 2020
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                               FILED: July 30, 2020

               Jody Lamison (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board) denying
her claim for benefits under Section 402(b) of the Unemployment Compensation
Law (Law), 43 P.S. §802(b).1 In doing so, the Board affirmed the Referee’s
determination that because Claimant did not appear at the hearing, she failed to prove
she had necessitous and compelling cause to leave work. For the following reasons,
we vacate and remand to the Board.
               Claimant worked part-time for Harrison Township (Employer) as a
secretary in the Code and Zoning Office. Her last day was February 18, 2019.
Claimant filed a claim for unemployment compensation benefits on the ground that
she resigned due to a hostile work environment. The Unemployment Compensation

1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b),
which states, in relevant part, that a claimant shall be ineligible for compensation for any week in
which the claimant’s unemployment is due to voluntarily leaving work without cause of a
necessitous and compelling nature.
(UC) Service Center granted benefits. Employer appealed, and the Referee held a
hearing on May 16, 2019. Claimant did not participate in the hearing.
               Employer presented the testimony of Richard Hill, Jr., Township
Manager. Hill testified that he learned of Claimant’s intended resignation on
February 15, 2019. On that day, Claimant had emailed her resignation, effective
March 1, 2019, to her supervisor Lindsay Fraser. Fraser forwarded the email to Hill.
Hill testified that after receiving Claimant’s resignation, he and Employer “decided
[they] were not going to schedule her for the next two weeks” because “there was
no need for [her] position[.]” Notes of Testimony (N.T.), 5/16/2019, at 5; Certified
Record (C.R.) Item No. 8. Hill testified that Claimant had never communicated any
complaints or concerns about the work environment to him.
               After hearing Hill’s testimony, the Referee explained that when a
claimant “resign[s] with notice and is not permitted to work through that notice, the
separation is considered an involuntary separation through the date of the resignation
notice.” N.T. 5-6. Therefore, the Referee advised Employer that he would consider
Claimant’s eligibility under Section 402(e) of the Law, 43 P.S. §802(e), from the
date she announced her resignation through March 1, 2019.2 Hill offered no
evidence that Claimant was terminated for willful misconduct.
               According to a call report sheet maintained by the Board, on May 17,
2019, Claimant’s attorney called the Board to report that she did not appear at the
hearing because she lacked advance notice. Counsel explained that Claimant had
recently moved and the notice of hearing did not arrive at her new address until the



2
  Section 402(e) of the Law provides, in relevant part, that “[a]n employe shall be ineligible for
compensation for any week ... [i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct....” 43 P.S. §802(e).
                                                2
day after the hearing. The Department’s call report sheet noted that Claimant had
not notified the Board of her new address. See C.R. Item No. 9.
             On May 20, 2019, the Referee issued a decision that affirmed the UC
Service Center’s decision in part. The Referee found that Claimant’s separation was
involuntary through the effective date of her resignation, March 1, 2019, because
Employer did not permit her to work during that time. Because Employer presented
no evidence of willful misconduct, the Referee held that Claimant was not ineligible
for benefits under Section 402(e) of the Law, 43 P.S. §802(e), for the waiting week
ending February 23, 2019, and the compensable week ending March 2, 2019.
Because Claimant offered no evidence that her separation from employment after
March 1, 2019, was involuntary or that she had a necessitous and compelling cause
for quitting as of March 1, 2019, the Referee held that she was ineligible for benefits
after that date by reason of Section 402(b) of the Law, 43 P.S. §802(b).
             Claimant appealed to the Board. Attached to her appeal was a copy of
a contemporaneous email from Claimant’s counsel to the Board stating, in pertinent
part, as follows:

             Please accept the following on behalf of my client, Jody
             Lamison. She wishes to appeal the [R]eferee’s decision in this
             case, and requests a remand hearing.

                                              ***

             Reason for Appeal: Claimant has additional testimony and
             evidence not yet considered in the Referee’s original decision
             that she would like to present in a remand hearing.

C.R. Item No. 11.
             The Board affirmed the Referee’s decision.           The Board denied
Claimant’s request for a remand hearing, noting that Claimant had “fail[ed] to offer

                                          3
a legally sufficient reason to support a finding of proper cause for her nonappearance
at the referee’s hearing.” Board Adjudication, 7/3/2019, at 1. Claimant, now pro
se, has petitioned for this Court’s review.
              On appeal,3 Claimant asks this Court to reverse the Board’s decision
and reinstate the Service Center’s award of benefits under Section 402(b) of the Law,
43 P.S. §802(b). Claimant contends that she did not attend the Referee’s hearing on
May 16, 2019, because she did not receive the notice of hearing until May 17, 2019.
Claimant further contends that had she attended, she would have offered evidence
that her separation from work was involuntary because a hostile work environment
forced her to quit. The Board responds that it properly denied Claimant’s request
for a remand hearing because she did not offer proper cause for her nonappearance
at the first hearing. It asserts that Claimant’s telephone call that she had not received
the notice of hearing was inadequate; Claimant had to advise the Board of this issue
in writing.
              The Board’s regulations address requests for reopening the record
where a party does not attend a scheduled hearing. Section 101.24 provides, in
relevant 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.
              Requests for reopening, whether made to the referee or Board,
              shall be in writing; shall give the reasons believed to constitute


3
  Our review determines “whether constitutional rights were violated, [whether] an error of law
was committed or whether necessary findings of fact are supported by substantial competent
evidence.” Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298
n.2 (Pa. Cmwlth. 1995).
                                              4
             “proper cause” for not appearing; and they shall be delivered or
             mailed [to the Department].

                                               ***

             (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 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. At
             a reopened hearing, the opposing party shall be given the
             opportunity to object to the reopening if he so desires. If the
             request to have the hearing reopened is denied, the Board will
             append to the record the request, supporting material and the
             ruling on the request, so that it shall be subject to review in
             connection with any further appeal to the Commonwealth Court.

34 Pa. Code §101.24 (emphasis added). A claimant’s failure to receive, or timely
receive, a hearing notice can constitute “proper cause” for reopening a hearing.
Verdecchia v. Unemployment Compensation Board of Review, 657 A.2d 1341, 1343-
44 (Pa. Cmwlth. 1995); Coin Automatic Laundry Equipment Company v.
Unemployment Compensation Board of Review, 447 A.2d 690, 691 (Pa. Cmwlth.
1982).
             In general, the “[m]ailing of notices, orders or decisions of a referee, or
of the Board to the parties at their last known addresses as furnished by the parties
to the referee, the Board or the Department [of Labor and Industry], shall constitute
notice of the matters therein contained.” 34 Pa. Code §101.53. A party is presumed
to have received notice “[w]here notice, mailed to a party’s last known address, is
not returned by the postal authorities as undeliverable[.]” John Kenneth, Ltd. v.
Unemployment Compensation Board of Review, 444 A.2d 824, 826 (Pa. Cmwlth.
1982). This presumption of receipt “is based on the notion that, once the notice,
                                           5
properly addressed, is placed in the mail, there are usually two options: either the
notice will be delivered as addressed, or, if it cannot be delivered, it will be returned
to the sender.” Volk v. Unemployment Compensation Board of Review, 49 A.3d 38,
41 (Pa. Cmwlth. 2012). “Although those two options are the most likely to occur in
our experience, there are occasions in which mail is lost or not delivered for some
reason.” Id. The presumption of receipt is rebuttable. “If the addressee is not given
the opportunity to present evidence to rebut the presumption of receipt, the
presumption would become irrebuttable, a legal consequence that is generally
disfavored by both the United States and Pennsylvania Supreme Courts as violating
due process.” Id. at 42. Thus, the claimant must have the opportunity to rebut the
presumption of receipt because it may establish proper cause for not attending a
referee’s hearing.
             Testimony denying receipt of the item mailed does not rebut the
presumption. Department of Transportation, Bureau of Driver Licensing v. Grasse,
606 A.2d 544, 546 (Pa. Cmwlth. 1991).             See also Janick v. Unemployment
Compensation Board of Review, 383 A.2d 973 (Pa. Cmwlth. 1978) (rejecting
claimant’s assertion that she did not receive notice of hearing where the record
contained the hearing notice sent to claimant and her attorney); Anker v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 434 C.D. 2010,
filed December 29, 2010) (unreported) (claimant’s assertion that she did not receive
notice of hearing did not overcome presumption where notice was sent to her correct
address and not returned to the Board as undeliverable); Poplawski v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 2612 C.D. 2009, filed June 30,




                                           6
2010) (unreported) (court rejected claim of no receipt where claimant’s correct
address was used and claimant had received other Board documents at that address).4
                 Generally, the Board’s decision to grant or deny a party’s request for a
remand hearing is a matter of administrative discretion.                     Georgia-Pacific
Corporation v. Unemployment Compensation Board of Review, 630 A.2d 948, 951
(Pa. Cmwlth. 1993). Section 101.104 of the Board’s regulations, however, provides,
in part, that:

                 (a) The Board may allow or disallow any application for a further
                 appeal without hearing, solely on the basis of the application and
                 the record.

                                                   ***

                 (c) If the further appeal is allowed by the Board, or if the Board
                 removes an appeal from the referee to the Board and on its own
                 motion assumes jurisdiction of the appeal, notification shall be
                 mailed to the last known post office address of each interested
                 party. The Board will review the previously established record
                 and determine whether there is a need for an additional hearing.
                 Under section 504 of the Unemployment Compensation Law (43
                 P.S. §824), the Board may affirm, modify or reverse the decision
                 of the referee on the basis of the evidence previously submitted
                 in the case, or the Board may direct the taking of additional
                 evidence, if in the opinion of the Board, the previously
                 established record is not sufficiently complete and adequate to
                 enable the Board to render an appropriate decision. The further
                 appeal shall be allowed and additional evidence required in any
                 of the following circumstances:

                       (1) Whenever the further appeal involves a material
                       point on which the record below is silent or
                       incomplete or appears to be erroneous.

4
  Pursuant to Commonwealth Court Internal Operating Procedure §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
                                               7
                      (2) It appears that there may have been a denial of a
                      fair hearing under the rules.

                      (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.
                We have explained that the Board must allow a “further appeal” where
there is “a material point on which the record below is silent, incomplete, or where,
[] the request for reopening is made under 34 Pa. Code §101.24.” Volk, 49 A.3d at
43. Further, “[f]or the purposes of reopening the record under 34 Pa. Code §101.24,
whether the petitioner had proper cause for not attending the hearing is a material
point[.]” Id.
                Volk, 49 A.3d 38, is instructive. In that case, the claimant did not appear
at the referee’s hearing, and the referee found the claimant ineligible for benefits.
The claimant appealed to the Board, arguing that he did not attend the hearing
because he was not notified of the time and place of the hearing. The Board denied
the claimant’s request for another hearing because the record established a
presumption that the claimant had timely received the hearing notice and the
claimant’s denial of receipt alone was not enough to overcome it. On appeal, this
Court determined that the Board erred by basing its decision solely on the statements
in the claimant’s appeal. We concluded that a claimant challenging the presumption
of receipt must be given the opportunity to rebut the presumption at a hearing,
otherwise, the presumption becomes irrebuttable.
                In Coin Automatic Laundry, 447 A.2d 690, the employer appealed a
referee’s decision, asserting that it did not appear at the referee’s hearing because it
did not receive notice of the hearing. The Board denied the employer’s appeal
                                              8
without affording it an opportunity to present evidence that it had proper cause for
missing the hearing. We remanded the matter to the Board, directing it to hold a
hearing to allow the employer to present evidence to rebut the presumption it had
timely received the hearing notice. We stated: “[w]e cannot pass upon the adequacy
or truth of such offered evidence, but neither can we conclude that it has been
adjudicated absent any opportunity to present it.” Id. at 691.
               Given this precedent, we conclude that the Board erred in denying
Claimant’s request for a remand hearing. Claimant’s counsel informed the Board
by phone that Claimant was absent from the Referee’s hearing because she did not
receive the hearing notice until a day after the hearing. In Claimant’s subsequent
appeal to the Board, her attorney requested a remand hearing, which the Board
denied because it found that Claimant’s appeal form did not contain a legally
sufficient reason for her nonappearance at the hearing. In light of counsel’s phone
call on May 17, 2019, the Board had notice of Claimant’s claim that she did not
timely receive the hearing notice. The Board should have given Claimant the
opportunity to present evidence to rebut the presumption of timely receipt and prove
her contention that she did not attend the hearing because she did not have notice.5
               The Board argues that “[a]lthough Claimant’s counsel called the referee
after the hearing and stated Claimant did not timely receive notice of the hearing,
this was not considered to be an appeal and did not trigger an automatic remand

5
  The Board’s regulations provide that it may grant a request for rehearing for “good cause in the
interest of justice without prejudice to any party.” 34 Pa. Code §101.111. To determine whether
good cause exists, the Board must consider whether the requesting party has presented new
evidence or changed circumstances or whether it failed to consider relevant law. Laster v.
Unemployment Compensation Board of Review, 80 A.3d 831, 834 (Pa. Cmwlth. 2013); Georgia-
Pacific Corporation, 630 A.2d at 953 (explaining that the Board has good cause to grant
reconsideration to revisit a legal issue). Because it did not consider the law surrounding the
presumption of receipt, the Board could have revisited the issue by granting a remand hearing.
                                                9
hearing for appearance [] because it was not in writing.” Board’s Brief at 8. The
Board’s arguments are not persuasive. Section 101.104(c) of the Board’s regulations
provides that once a party makes a request for a hearing and appeal under 34 Pa.
Code §101.24, the Board should allow the “further appeal” and the introduction of
additional evidence. Moreover, as this Court has noted:

               the Board previously has granted rehearing requests where there
               has been no explanation at all in the appeal documents about a
               party’s failure to attend a hearing. The petitioners in McNeill,
               Sanders, and Verdecchia[6] were given a hearing at which they
               had the opportunity to fully explain why they were unable to
               attend their respective hearings, and to submit evidence to
               support their claims. While the Board has some discretion in
               deciding whether to grant a request for a remand hearing, subject
               to the limitations in 34 Pa. Code §101.104(c), the Board has not
               applied consistent standards for the exercise of that discretion.
               Sometimes the Board requires specific explanations about why
               the notice was not received and other times it does not. The lack


6
  In McNeill v. Unemployment Compensation Board of Review, 511 A.2d 167 (Pa. 1986), the
referee made a decision favorable to the claimant after the employer did not appear at the hearing.
The employer appealed to the Board and requested a remand hearing. In its request, the employer
did not explain its absence at the first hearing. Instead, the employer wrote: “We do not agree with
the decision rendered by the referee … [the claimant] should not be eligible for unemployment
[compensation benefits.]” Id. at 170. The Board remanded the case for a second hearing before
the referee to establish additional testimony related to the merits of the case. In Sanders v.
Unemployment Compensation Board of Review, 524 A.2d 1031 (Pa. Cmwlth. 1987), the employer
contacted the referee shortly before the scheduled hearing to explain that its representative was
unable to attend. The referee’s staff member said the referee would telephone the representative
during the hearing. This did not happen and the referee issued a determination favorable to the
claimant. The employer appealed to the Board and requested a reopening of the record because it
did not receive the notice of hearing until thirty minutes before the hearing. The Board granted
employer’s request and remanded the matter for another hearing. Lastly, Verdecchia v.
Unemployment Compensation Board of Review, 657 A.2d 1341 (Pa. Cmwlth. 1995), like McNeill,
involved a referee who made a decision favorable to the claimant after the employer did not appear
at the hearing. The employer appealed, stating that it had not received the hearing notice. The
Board remanded for a second hearing and allowed the employer to present evidence to support its
claim that it did not receive the hearing notice.
                                                10
             of consistent standards in these matters is troubling, particularly
             where the refusal to remand prevents the party against whom the
             presumption of receipt is being asserted from having the
             opportunity to present evidence to satisfy its burden of rebutting
             that presumption. As previously stated, this effectively
             transforms the presumption of receipt into an irrebuttable
             presumption, a result not favored under the principles of due
             process.

Volk, 49 A.3d at 46-47 (emphasis in original) (internal citations omitted).
             It is well settled that “the essential elements of due process in an
administrative proceeding are notice and an opportunity to be heard.” Groch v.
Unemployment Compensation Board of Review, 472 A.2d 286, 287-88 (Pa. Cmwlth.
1984). “Providing notice of a hearing to all interested parties is not discretionary,
but mandatory.” Allrutz v. Unemployment Compensation Board of Review, 463
A.2d 100, 102 (Pa. Cmwlth. 1983). If Claimant truly did not receive the hearing
notice in a timely manner, she was denied notice and the opportunity to be heard. Id.
             For all of the foregoing reasons, we vacate the Board’s order and
remand for proceedings consistent with this opinion, i.e., to allow Claimant the
opportunity to prove her contention that she did not attend the Referee’s hearing
because she did not have notice.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jody L. Lamison,                         :
                   Petitioner            :
                                         :
            v.                           :   No. 1213 C.D. 2019
                                         :
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


                                    ORDER

            AND NOW, this 30th day of July, 2020, the order of the Unemployment
Compensation Board of Review dated July 3, 2019, entered in the above-captioned
matter is VACATED, and this matter is REMANDED to the Board for further
proceedings consistent with this opinion.
            Jurisdiction relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
