           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Northeastern Eye Institute,                 :
                  Petitioner                :
                                            :
             v.                             :
                                            :
Unemployment Compensation                   :
Board of Review,                            :   No. 1368 C.D. 2016
                 Respondent                 :   Submitted: January 6, 2017


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION
BY JUDGE COSGROVE                               FILED: December 27, 2017

             Northeastern Eye Institute (Employer) petitions for review of the July
14, 2016 Order of the Unemployment Compensation Board of Review (Board),
reversing the Decision of the Referee which denied unemployment compensation
(UC) benefits to Ann M. Ritterbeck (Claimant). The Board concluded Claimant was
not barred from receiving UC benefits by Section 402(b) of the Unemployment
Compensation Law (UC Law), 1 because she established a necessitous and
compelling reason for voluntarily terminating her employment. Upon review, we
vacate the order of the Board and remand for further proceedings consistent with this
opinion.



      1
          Section 402(b) of the UC Law provides that an employee shall be ineligible for
compensation for any week “[i]n which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.” Act of December 5, 1936, Second Ex.
Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
             Claimant worked as a licensed practical nurse for Employer from
August 26, 2013 to January 15, 2016. When Claimant was initially hired, her work
schedule was Monday through Friday, 7:30 a.m. to 4:30 p.m., and Employer
employed three nurses. However, due to nurses leaving, Claimant was required to
take on a heavier workload, to work mandatory overtime nearly every day, and to be
on-call every weekend. On Wednesdays, Claimant would work at the hospital from
7:00 a.m. to as late as 11:00 p.m. Claimant consistently complained to Employer
about the increased workload and accompanying stress. Employer, however, offered
no accommodation. In November or December of 2015 Claimant requested to
reduce her work schedule to three days per week, but Employer refused. Because
of the excessive hours, Claimant voluntarily terminated her employment with
Employer on January 15, 2016.       Thereafter, Claimant filed for UC Benefits.
(Board’s Order, 4/15/16, at 1-2.)
             The Department of Labor and Industry (Department) denied Claimant’s
request for benefits pursuant to Section 402(b) of the Law. Claimant appealed. A
hearing on Claimant’s appeal was held on February 29, 2016, at which Employer
failed to appear.   The Referee affirmed the determination of the Department,
reasoning that Claimant did not have a necessitous and compelling reason to
voluntarily leave her job, concluding “the referee does not fathom why the claimant
would work under such alleged intolerable conditions for over [a] period in excess
of one year.” (Referee’s Decision, 3/4/16, at 2.) Claimant appealed the Referee’s
decision to the Board.
             On April 15, 2016 the Board issued an Order reversing the Referee’s
Decision and granting Claimant UC benefits. In so doing, the Board found that
Claimant had a necessitous and compelling reason for voluntarily leaving her


                                        2
employment, and therefore was not ineligible for benefits under Section 402(b) of
the UC Law. Specifically, the Board found Claimant testified credibly that her
working conditions substantially and unilaterally changed from the original terms,
that Claimant was working overtime nearly every day with excessive hours on
surgery days, and was expected to be on-call every weekend, and that she did not
accept the change in working conditions, requested help to no avail, requested a
reduction in working days which Employer denied, and made a reasonable effort to
preserve her employment. (Board’s Order at 1-2.)
               Employer requested reconsideration, alleging it had not received the
notice of hearing for the February 29, 2016 hearing.                        The Board granted
reconsideration and vacated its previous action. Another hearing was held before a
Referee.
               At this second hearing, it was noted that the notice of hearing entered
into the record at the February 29, 2016 hearing bears Employer’s correct name,
although it is missing a “T,” correct address, and “Date Mailed 2/12/16” in the upper
right corner. (See Reproduced Record (R.R.) at 90.) The Board ultimately held
Employer did not credibly overcome the presumption of receipt of the notice and did
not establish proper cause for its nonappearance at the first hearing.2 Specifically,
the Board found the notice was mailed to Employer’s correct address, and was not
returned as undeliverable and, therefore, Employer did not credibly overcome the
presumption of receipt or establish proper cause for its nonappearance at the first
hearing. As such, the Board did not consider additional testimony from the second

       2
         “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 regulations
define notice as the mailing of any notice to the parties at their last known address. 34 Pa. Code §
101.53.


                                                  3
hearing.    The Board accordingly reinstated its April 15, 2016 Order granting
Claimant benefits as the Decision of the Board. (Board’s Order, 7/18/2016, at 1.)
              On appeal,3 Employer raises four issues: 1) The Board committed an
error of law in finding the notice of hearing was presumably received, 2) Employer’s
due process rights were violated when it was denied the right to question the UC
staff regarding the mailing of the notice of hearing, 3) the Board committed an error
of law in finding Employer had not credibly overcome the presumption of receipt,
and therefore did not establish proper cause for its nonappearance at the first hearing,
and 4) the Board arbitrarily and capriciously disregarded the findings of the Referee.
(Employer’s Brief at 4.)

                                       DISCUSSION

              Employer first argues the evidence of record does not support the
Board’s application of the mailbox rule, and therefore its finding that the February
12, 2016 notice of hearing was presumptively received was made in error.
(Employer’s Brief at 18.) This Court has previously stated,

              [t]he [mailbox] rule applies only when there is evidence that the
              item was mailed. It is true that evidence of actual mailing is not
              required. 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.’




       3
        On appeal, “[o]ur scope 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 competent evidence.” Fugh v. Unemployment Compensation Board of
Review, 153 A.3d 1169, 1172 n.4 (Pa. Cmwlth. 2017).
                                               4
Sheehan v. Workmens’ Compensation Review Board (Supermarkets Gen.), 600 A.2d
633, 636 (Pa. Cmwlth. 1991) (citing Department. of Transportation v. Brayman
Construction Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (citations omitted)
(emphasis in original)).
             Employer alleges that, because Employer’s proper name is misspelled
on the February 12, 2016 notice of hearing, the notice was therefore not properly
addressed for purposes of the mailbox rule. (Employer’s Brief at 21-22.) Employer
further argues that, because the Referee testified he does not mail out notices of
hearings himself, there is no evidence of record or testimony demonstrating the
notice of hearing was signed in the regular course of business and placed in the
regular place of mail.
             We note that the Referee’s decision and the Department’s notice of
determination both misspell Employer’s name in the same manner as the February
29, 2016 hearing notice. (R.R. at 15, 19.) Employer testified to receiving “every
other piece of mail specifically related to this matter” as well as all previous mail
from the Board without issue. (R.R. at 87-88.) Employer’s argument relative to the
misspelling thus fails.
             Nevertheless, as Employer points out, there is no evidence of record or
testimony demonstrating the notice of hearing was signed in the regular course of
business and placed in the regular place of mail. In Douglas v. Unemployment
Compensation Review Board, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016), this Court
addressed a similar situation. In that case, the Board determined that the claimant
failed to appeal in a timely manner since her appeal was filed nineteen days after the
mailing of the relevant Notice of Determination. Accordingly, the Board applied the
mailbox rule and its presumption that the claimant had received the Notice.


                                          5
However, in order for the mailbox rule to apply, this Court noted “that there must be
some evidence … that the [N]otice was mailed. … Until there is proof that a letter
was mailed, there can be no presumption that it was received.” Id. at 1192 (internal
citations omitted). In Douglas, this principle was applied regarding dismissal of a
claimant’s case. We note presently that it is equally as applicable when the
aggrieved is the employer. The implications of dismissal or negative action against
a party in the face of claims that something which has bearing on critical filing times
was “presumptively” received is too potent to not require underlying proof to support
the presumption. As the Board failed to apply the principles outlined in Douglas, it
erred.
             For the foregoing reasons, we vacate the order of the Board. Given its
present posture, we remand this case to the Board for a hearing on the mailbox rule
pursuant to Douglas.4




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




        Given our disposition of Employer’s first issue, we need not address Employer’s
         4

remaining arguments raised on appeal.

                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Northeastern Eye Institute,              :
                  Petitioner             :
                                         :
             v.                          :
                                         :
Unemployment Compensation                :
Board of Review,                         :   No. 1368 C.D. 2016
                 Respondent              :


                                    ORDER


             AND NOW, this 27th day of December, 2017, the order of the
Unemployment Compensation Board of Review is vacated. We remand for further
proceedings consistent with this opinion. Jurisdiction is relinquished.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge
