            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth Douglas,                             :
                            Petitioner         :
                                               :
             v.                                :   No. 838 C.D. 2016
                                               :   Submitted: September 23, 2016
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                           FILED: December 16, 2016


             Petitioner Elizabeth Douglas (Claimant), acting pro se, petitions for
review of an order of the Unemployment Compensation Board of Review (Board),
which affirmed a Referee’s decision dismissing Claimant’s appeal as untimely
pursuant to Section 501(e) of the Unemployment Compensation Law (Law).1 We
now vacate and remand the Board’s order.
             Claimant filed for unemployment compensation benefits following the
termination of her employment with Roy Tweedy Meats (Employer) as a deli

      1
         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 states:
      (e) Unless the claimant . . . files an appeal with the board, from the determination
      contained in any notice required to be furnished by the department . . . 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.
clerk. Claimant’s husband had also worked for Employer, stopped working, and
filed for benefits. The Lancaster UC Service Center (Service Center) issued a
Notice of Determination in which it determined that Claimant was ineligible for
unemployment compensation benefits under Section 402(e) of the Law,2 based on
willful misconduct. (Certified Record (C.R.), Item No. 4.) The notice indicated
that it was mailed on February 3, 2016, and that the last day that Claimant could
appeal the determination was February 18, 2016. (Id.) Claimant did not file her
appeal until February 22, 2016, four days after the statutory appeal had expired.
(C.R., Item No. 5.)
                 A Referee conducted a hearing on March 23, 2016, for the purpose of
determining whether Claimant’s appeal from the Notice of Determination was
timely. (C.R., Item No. 8.) At the start of the hearing, the Referee identified a
number of documents in the hearing file for purposes of their admission, including
the Notice of Determination, which the Referee characterized as having been
“mailed on February 3, 2016.” (Id. at 2). Claimant had no objection to the
admission of the documents into the record. (Id.) Claimant testified that she did
not receive a Notice of Determination in the mail. (Id. at 3.) She testified that
after waiting for it in the mail, on February 22, 2016, she decided to call the
Service Center to check on the status of her file. (Id.) Despite not obtaining a
definitive answer from a Service Center employee as to whether or not she was
granted benefits, Claimant concluded that she had been denied benefits and
appealed without a Notice of Determination that same day. She also testified that


       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).



                                               2
during the telephone call, the representative from the Service Center mentioned
that “there was a fire or something in the Landsdowne – Lancaster office.” (Id.)
Claimant testified that she received “a notice” about a week later.3 (Id.)
              By decision dated March 23, 2016, the Referee dismissed Claimant’s
appeal as untimely. (C.R., Item No. 9.) In so doing, the Referee issued the
following findings of fact:
              1.      On February 3, 2016, the Lancaster UC Service
                      Center mailed a Notice of Determination to the
                      claimant’s last known mailing address which
                      denied benefits under Section 402(e) of the Law.

              2.      At the time the claimant filed her claim for UC
                      benefits, the claimant’s husband also filed a claim
                      for UC benefits.

              3.      The Notice of Determination mailed to the
                      claimant on February 3, 2016 was not returned by
                      the postal authorities as being undeliverable.

              4.      The claimant was not having any issues with her
                      receipt of mail.

              5.      The determination specified the final day to file a
                      timely appeal was February 18, 2016.

              6.      The claimant did not file an appeal to the Notice of
                      Determination until February 22, 2016.




       3
          It is unclear from the testimony and record whether Claimant subsequently received the
Notice of Determination or whether her testimony as to having received a notice related to a
notice of hearing, which the Service Center mailed March 9, 2016. In addition, she did not
testify that the representative informed her that any event at the Service Center interfered with
the processing or mailing of the Notice of Determination.



                                               3
            7.    The claimant’s husband received his Notice of
                  Determination at the same address the Notice of
                  Determination for the claimant was mailed.

            8.    The claimant was not misinformed or misled with
                  respect to her appeal rights.
(Id.)
            In concluding that Claimant failed to appeal the Service Center’s
decision in a timely manner, the Referee relied on the “mailbox rule.” The Referee
explained that the mailbox rule creates a rebuttable presumption that the item
mailed was received as mailed. The Referee further reasoned:
            In the present case, the competent evidence contained in
            the hearing record establishes on February 3, 2016, the
            Lancaster UC Service Center mailed a Notice of
            Determination to the claimant’s last known mailing
            address which denied benefits to the claimant under
            Section 402(e) of the Law. Although the claimant
            presented testimony at the hearing to establish she did not
            receive the determination, this testimony is rejected as
            not credible. Specifically, the record is void of any
            competent evidence to establish the determination was
            returned by the postal authorities as being undeliverable,
            and the Referee also finds that based on the claimant’s
            own testimony, the claimant’s husband also had an open
            UC claim for which he received his determination at the
            same address. Finally, no evidence was presented by the
            claimant to establish that the claimant was having issues
            with receiving mail during the appeal period. Therefore,
            the determination is presumed received as mailed, and
            the claimant has failed to establish that she filed an
            appeal in accordance with the provisions of
            Section 501(e) of the Law. As the provisions of the Law
            are mandatory, the Referee has no jurisdiction to consider
            the claimant’s appeal and the claimant’s appeal is
            dismissed.
(Id.)



                                        4
               Claimant appealed to the Board. On appeal, she asserted that she was
confused at the hearing as to why it related to the timing of her filing the appeal
instead of the merits of her appeal. (C.R., Item No. 10.) She also asserted, again,
that she had appealed the Notice of Determination on February 22, 2016, as soon
as a representative of the Service Center informed her that the Notice of
Determination was mailed on February 3, 2016. Id. She further elaborated that
“the office where [the] decision had come from had had a fire and that could have
been the cause of [having] not received [the notice.]” Id. The Board affirmed the
Referee’s decision and dismissed Claimant’s appeal, concluding that the Referee
had properly dismissed the appeal as untimely. (C.R., Item No. 11.) The Board
adopted and incorporated the Referee’s findings of fact and conclusions of law.
The Board, addressing Claimant’s reference to her confusion, added “[o]n appeal,
the claimant writes that she was ‘confused when [she] had [a] hearing,’ however,
confusion is not good cause for reopening of the record under the Law.” (Id.)
Claimant then petitioned this Court for review.
               On appeal,4 Claimant essentially argues that finding of fact number 3,
which provides that the Service Center mailed the Notice of Determination on
February 3, 2016, is not supported by substantial evidence; that the Referee and
Board erred in not crediting her testimony that she did not receive the Notice of
Determination; and that the Board erred as a matter of law in dismissing her appeal
as untimely.


       4
         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
             With regard to Claimant’s argument that substantial evidence of
record does not exist to support the finding that the Service Center mailed the
Notice of Determination on February 3, 2016, the Board’s finding appears to be
based solely on the Notice of Determination itself, which includes a “mailed on”
date. The Board, in adopting the Referee’s decision, applied what is referred to as
the “mail box rule” to create a rebuttable presumption that Claimant had received
the Notice of Determination. The mailbox rule provides that the depositing of a
properly addressed letter with prepaid postage in the post office raises a
presumption that the letter reached its destination by due course of mail. Dull v.
Unemployment Comp. Bd. of Review, 955 A.2d 1077, 1079 (Pa. Cmwlth. 2008).
Under the mailbox rule, evidence that a letter was mailed ordinarily will be
sufficient to permit a fact-finder to find that the letter was, in fact, received by the
party to whom it was addressed. Id. A claimant asserting non-receipt of mail must
overcome the presumption created by the common law mailbox rule. Volk v.
Unemployment Comp. Bd. of Review, 49 A.3d 38, 41 (Pa. Cmwlth. 2012). The
Board, considering whether Claimant had rebutted the presumption, determined
that she had failed to do so.       The Board then presumed that the Notice of
Determination was received and that Claimant, therefore, failed to comply with the
provisions of Section 501(e) of the Law, requiring an appeal to be filed within
fifteen days of the mailing date.
             The problem with the Board’s application of the mailbox rule to the
circumstances in this case is that, here, Claimant, in addition to contending that she
did not receive the Notice of Determination, also contends that the notice was not
mailed. In other words, Claimant disputes the basis giving rise to the presumption
that she received the notice. In Blast Intermediate Unit #17 v. Unemployment


                                           6
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 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)). We further explained that
             “the 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. 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.

Blast, 645 A.2d at 449 (quoting Mileski v. Unemployment Comp. Bd. of Review,
379 A.2d 643 (Pa. Cmwlth. 1973)).
             In Volk, we explained the basis for the presumption of receipt as
follows:
             Generally, when a party asserts that it did not receive a
             notice from the Department, the analysis begins with the
                                         7
            Department invoking an evidentiary presumption to show
            that the notice was received by the party.               This
            evidentiary presumption of receipt is used where the
            sender establishes with proof that a hearing notice was
            placed into the mail addressed to the last known address
            of the addressee and it was not returned by postal
            authorities as undeliverable. Gaskins [v.] Unemployment
            Comp. Bd. of Review, 429 A.2d 138, 140 (Pa. Cmwlth.
            1981)] (applying the common law mailbox rule); see also
            34 Pa. Code § 101.53 (providing that “[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,
            shall constitute notice of the matters therein contained.”)
            This presumption is based on the notion that, once the
            notice, 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. See Bee v. Unemployment Comp[. Bd.] of
            Review, . . . 119 A.2d 558, 559 (Pa. Super. 1956)
            (“Presumably [the notice] was received by claimant for it
            was not returned by the postal authorities.”).[ ] 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. See, e.g., Verdecchia [v.
            Unemployment Comp. Bd. of Review, 657 A.2d 1341,
            1343-44 (Pa. Cmwlth. 1995)] (where the addressee
            provided evidence that the postal authorities did not
            forward mail as requested by addressee). Therefore, the
            courts only presume that the notice was received; the
            burden then shifts to the addressee to prove this
            presumption wrong and that the mail was not received.
            The presumption is, thus, merely “a procedural device
            which shifts the burden of persuasion or the burden of
            going forward with the evidence,” Bixler v. Hoverter, . . .
            491 A.2d 958, 959 (Pa. Cmwlth. 1985), to the claimant.[ ]
            See also Commonwealth v. Shaffer, . . . 288 A.2d 727,
            735 (Pa. . . . ) (stating “[a] rebuttable presumption forces
            the defendant to come forth or suffer inevitable defeat on
            the issue in controversy”)[, cert denied sub nom. Shaffer
            v. Pennsylvania, 409 U.S. 867 (1972)].

Volk, 49 A.3d at 41 (emphasis added) (footnotes omitted).
                                         8
             Here, although 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. There is no subsequent notation in the file indicating that
the notice was, in fact, mailed. Without proof of mailing or the presumption of
regularity to establish that the notice was mailed, the presumption of receipt—i.e.,
the mailbox rule—cannot be applied.
             Moreover, Claimant raised the issue of proof of mailing before the
Referee and in her appeal to the Board. Both the decisions of the Referee and
Board, however, are void of any consideration of whether a problem at the Service
Center may have interfered with the mailing of the Notice of Determination, and,
therefore, we are unable “to exercise meaningful appellate review,” and a remand
is appropriate. See Stana v. Unemployment Comp. Bd. of Review, 791 A.2d 1269,
1271 (Pa. Cmwlth.), appeal denied, 813 A.2d 848 (Pa. 2002). On remand, the
Referee shall receive testimony from a representative of the Service Center for
purposes of issuing a decision that addresses Claimant’s argument that the Service
Center may not have mailed the notice to her.
             Accordingly, we vacate the Board’s order and remand the matter to
the Board, with instruction that the Board remand the matter to the Referee for
issuance of a decision consistent with this Opinion.




                                P. KEVIN BROBSON, Judge



                                          9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth Douglas,                       :
                         Petitioner      :
                                         :
            v.                           :   No. 838 C.D. 2016
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :



                                      ORDER


            AND NOW, this 16th day of December, 2016, the order of the
Unemployment Compensation Board of Review (Board) is hereby VACATED and
the matter REMANDED to the Board with instruction that the Board remand the
matter to the Unemployment Compensation Referee for issuance of a new decision
consistent with this Opinion.
            Jurisdiction relinquished.




                                P. KEVIN BROBSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elizabeth Douglas,                     :
                     Petitioner        :
                                       :
             v.                        :      NO. 838 C.D. 2016
                                       :      SUBMITTED: September 23, 2016
Unemployment Compensation              :
Board of Review,                       :
                 Respondent            :



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


DISSENTING OPINION
BY JUDGE HEARTHWAY                         FILED: December 16, 2016

             The issue in this case is whether the Board properly affirmed the
decision of the Referee that Claimant’s appeal from the Service Center’s
unemployment compensation determination should be dismissed because the
appeal was untimely. Claimant contends that she did not receive notice of the
determination until after her appeal period expired.         The Majority opinion
concludes that remand is appropriate because the evidence does not support a
finding that the notice was mailed. I respectfully dissent for the following reasons.


             First, Claimant did not raise this issue before the Referee.        The
Majority opinion states that “Claimant raised the issue of proof of mailing before
the Referee and in her appeal to the Board.” However, Claimant’s handwritten
letter of appeal to the Referee does not question whether or when the Notice of
Determination was mailed. (C.R., Item No. 5.)


              Before the Referee, Claimant testified that when she had not received
any information on the status of her claim, she telephoned the Service Center on
February 22, 2016. When asked by the Referee if she ever received the Notice of
Determination, Claimant stated, “[a]fter—I think I talked to them that day[;] they
told me there was a fire or something in the office in the Lansdowne—Lancaster
office or something and that I got a notice like after that, after I spoke to somebody
on the phone like almost a week after that.” (C.R., Item No. 8; N.T., 3/23/16, at 3.)
Context for this vague testimony is provided later to the Board in the next stage of
the appellate process, when Claimant wrote that on February 22, 2016, an
unidentified UC representative stated in a telephone call “that the office where my
decision had come from had had a fire and that could have been the cause” that she
did not receive notice. (C.R., Item No. 10.) But the only information before the
Referee about a purported fire was Claimant’s testimony that “they told me there
was a fire or something in the. . . Lancaster office or something.”1
Notwithstanding the fact that it might be proper for this Court to afford some
latitude to Claimant as a pro se litigant, this ambiguous and disjointed statement
cannot be fairly construed as raising the issue of whether the Notice of
Determination was mailed to Claimant. Nevertheless, the Majority opinion faults
the Referee and the Board for not addressing this precise issue.


       1
         Significantly, finding Claimant not credible, the Referee rejected Claimant’s testimony
that she did not receive the Notice of Determination. (C.R., Item No. 9; Referee’s Decision,
3/23/16, at 2.)


                                           JKH - 2
             Like the Board’s decision, the Board’s brief to this Court does not
address the question of whether there is substantial evidence in the record that the
Notice of Determination was mailed. The silence of the Board on this issue is not
surprising in light of the failure of Claimant to properly raise this issue before the
Referee. Appellate review in this instance is hindered significantly by Claimant’s
failure to present and develop this issue.


             Nevertheless, the Majority finds the question of whether there is
substantial evidence to conclude that the Notice of Determination was mailed on
February 3, 2016, to be determinative. The majority analyzes this case under Blast
Intermediate Unit #17 v. Unemployment Compensation Board of Review, 645 A.2d
447 (Pa. Cmwlth. 1993), which discusses the presumption of regularity of the acts
of public officials. Though “Pennsylvania recognizes a presumption that official
acts or duties have been properly performed,” LEONARD PACKEL & ANNE BOWEN
POULIN, PENNSYLVANIA EVIDENCE § 326-20 (4th ed. 2013), the Blast court noted,
“the 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 performed.” 645 A.2d at 449
(citation and internal quotation marks omitted).          In other words, for the
presumption that an act was properly performed to apply, the record must show
“some other indication that the act in question had been performed.” Id. (quoting
Mileski v. Unemployment Compensation Board of Review, 379 A.2d 643, 645 (Pa.
Cmwlth. 1977)).




                                       JKH - 3
              In this case, a number of exhibits were entered without objection into
the record at the Referee’s hearing. (C.R., Item No. 8; N.T. at 2.) Exhibit 3 is a
copy of the Notice of Determination, which specifically notes a mailing date of
February 3, 2016.2 (C.R., Item No. 4.) Consequently, the record includes a
document that explicitly states “Mailed on: February 03, 2016.” Id.


              The Majority, however, brushes this evidence aside, stating “it is
apparent that the ‘mailed date’ was part of the information included in the notice
itself at the time the notice was prepared.” (Maj. Op. at 9.) The Majority then
concludes that a remand is appropriate for “the Referee [to] receive testimony from
a representative of the Service Center for purposes of issuing a decision that
addresses Claimant’s argument that the Service Center may not have mailed the
notice to her.” (Id.)


              The Majority’s resolution begs the question, what is left of the
presumption of regularity of the acts of public officials? The presumption is based
on the “probability and the difficulty of proving that [a public official] conducted
himself in a manner that was in all ways regular and legal.” PACKEL & POULIN,
PENNSYLVANIA EVIDENCE § 326-20 (quoting MCCORMICK ON EVIDENCE § 343 (7th
ed.)). However, it seems that this presumption would be obliterated if (1) public
officials were required to prove through testimony that a correctly documented
routine act was in fact performed as reported; or (2) incredible testimony by a

       2
          Exhibit 4 is described as a computerized claim record generated by the UC Service
Center; however, Exhibit 4 was not included in the certified record submitted to this Court.
(C.R., Item No. 8; N.T. at 2.) It is unknown whether this exhibit also documents the date of
mailing.


                                         JKH - 4
claimant was sufficient to rebut the presumption.3 If a government agency is
required to actually prove via testimony that it performed a documented, routine
act, what exactly is left for a fact-finder to presume?


              The Majority concludes that the notation of a mailing date on Exhibit
3 is insufficient to invoke the presumption that the document was mailed as
indicated. I disagree.


              Official documents prepared in the ordinary course of business by
Commonwealth officials “carry with them a presumption that they are valid and
correct and that the official acts involved in their preparation have been properly
performed.” In re Cameron’s Estate, 120 A.2d 173, 178 (Pa. 1957) (citations
omitted). “[A] prima facie presumption of the regularity of the acts of public
officers exists until the contrary appears.” Beacom v. Robison, 43 A.2d 640, 643
(Pa. Super. 1945). The presumption is triggered whenever there is some indication
in the record that an act in question was performed. Mileski; Blast.


              Therefore, the Board should be affirmed. Claimant waived the issue
of an improper mailing by failing to adequately raise the question before the
Referee. Moreover, the notation of the mailing date on Exhibit 3 constitutes
sufficient evidence to invoke the presumption that the act was performed. The




       3
         At best, Claimant’s testimony about a rumored fire invites conjecture that perhaps the
Notice of Determination was not actually mailed. This type of conjecture, however, could be
raised anytime a document is claimed not to have been received.


                                           JKH - 5
circumstances of this case do not warrant casting doubt on an important and long-
standing evidentiary presumption.



                                     __________________________________
                                     JULIA K. HEARTHWAY, Judge




                                    JKH - 6
