            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carol A. Schoettle,                            :
                              Petitioner       :
                                               :
                 v.                            :   No. 661 C.D. 2018
                                               :   Submitted: October 12, 2018
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: November 29, 2018

                 Petitioner Carol A. Schoettle (Claimant), acting pro se, petitions for
review of an order of the Unemployment Compensation Board of Review (Board),
which affirmed a Referee’s decision and denied Claimant benefits pursuant to
Sections 4(u), 401, 404(d), and 401(c) of the Unemployment Compensation Law
(Law).1 The Board found that Claimant had a fault overpayment of $551, which is
subject to recoupment pursuant to Section 804(a) of the Law.2 The Board imposed



       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 753(u), 804, 804(d), and 801(c).
       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 874(a).
six penalty weeks pursuant to Section 801(b) of the Law3 and a penalty of $82.65
pursuant to Section 801(c) of the Law.4 For the reasons set forth below, we affirm.
                 Following a separation from employment with Maxim Healthcare
Services (Employer), Claimant initiated a claim for unemployment compensation on
June 18, 2017, and began receiving benefits. (Certified Record (C.R.), Item No. 2.)
On October 16, 2017, the Altoona UC Service Center (Service Center) received a
request on behalf of Employer to investigate a discrepancy in its records, which
suggested that Claimant had received both a payment of wages from Employer and
unemployment compensation benefits for the week ending on July 1, 2017. (Id.) As
a result, the Service Center mailed a Claimant Questionnaire to Claimant, notifying
her of the discrepancy and requesting Claimant to verify her wages by filling out the
questionnaire. (C.R., Item No. 3 at 1.) Claimant did not verify her wages. (Id. at 3.)
The Service Center thereafter issued three notices of determination, denying
benefits, establishing a fault overpayment, and imposing penalties because Claimant
knowingly failed to report all of her earnings. (C.R., Item No. 5.) Claimant then
appealed the Service Center’s decisions, asserting that she was unemployed between
June 18, 2017, and July 2, 2017. (C.R., Item No. 6 at 1.) The Board scheduled a
hearing before the Referee for December 29, 2017, and sent notice of the hearing to
Claimant, dated December 8, 2017. (C.R., Item No. 8 at 1.) Claimant requested a
continuance via letter, dated December 10, 2017, which the Board received on
December 19, 2017, and initially denied via a voicemail message to Claimant. (Id.
at 9.) In response, on December 20, 2017, Claimant again requested a continuance,

       3
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 871(b).
       4
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 871(c).

                                               2
this time via email, informing the Board that she would be in California and would
not return home until January 14, 2018. (Id. at 14.) It also informed the Board that
she would not be home to answer her phone. (Id.) The Board granted her second
request for continuance by mailing a notice on that same date, generally continuing
the hearing. (Id. at 17.) By notice mailed January 2, 2018, the Board rescheduled
the hearing for January 16, 2018. (Id. at 19.)
             At the evidentiary hearing before the Referee, neither Claimant nor
Employer appeared. (C.R., Item No. 9 at 1.) Consequently, after the conclusion of
the evidentiary hearing, the Referee issued a decision based on all documentary
evidence submitted to the Service Center and Referee. (C.R., Item No. 10 at 2.) The
Referee found Claimant ineligible for unemployment compensation benefits
pursuant to subsections 401, 4(u), 401(c), and 404(d) of the Law. (Id.) The Referee
also determined that Claimant had a fault overpayment of benefits under
Section 804(b) of the Law and further imposed penalty weeks and a penalty payment
under Sections 801(b) and (c) of the Law. (Id. at 2-3.) The Referee issued the
following findings of fact:
             1. On June 18, 2017, the claimant initiated a claim for
                unemployment compensation benefits and established
                a weekly benefit rate of $561 and a partial benefit credit
                of $169.
             2. For the week ending July 1, 2017, the claimant filed a
                claim for benefits and reported that she did not work
                and had no earnings that week.
             3. The claimant earned $2,212.12 the week ending
                July 1, 2017.

(C.R., Item No. 9.)




                                          3
                The Referee reasoned that Claimant was ineligible for benefits under
Sections 401,5 4(u),6 401(c),7 and 404(d)8 of the Law, because Claimant reported
that she was unemployed for the week at issue, yet she received earnings for that
week which would not have been paid to Claimant had she been unemployed. (Id.
at 2.) The Referee, therefore, held that her claim for benefits for the week ending
on July 1, 2017, was invalid. (Id. at 2.) Further, the Referee concluded that Claimant
had a fault overpayment of benefits under Section 804(a) of the Law9 in the amount
of $551. (Id.) The Referee came to this conclusion because Claimant provided false
information concerning her earnings, which led to her receipt of benefits for the

       5
          Section 401of the Law, generally, permits the payment of unemployment compensation
benefits to persons who are unemployed.
       6
           Section 4(u) of the Law provides:
       (u) “Unemployed.”—An individual shall be deemed unemployed (I) with respect
       to any week (i) during which he performs no services for which remuneration is
       paid or payable to him and (ii) with respect to which no remuneration is paid or
       payable to him, or (II) with respect to any week of less than his full-time work if
       the remuneration paid or payable to him with respect to such week is less than his
       weekly benefit rate plus his partial benefit credit.
       7
         Section 401(c) of the Law permits a person to receive benefits if he or she has made a
valid application for benefits.
       8
           Section 404(d) of the Law provides:
       Notwithstanding any other provisions of this section each eligible employe[e] who
       is unemployed with respect to any week ending subsequent to July 1, 1980 shall be
       paid, with respect to such week, compensation in an amount equal to his weekly
       benefit rate less the total of (i) the remuneration, if any, paid or payable to him with
       respect to such week for services performed which is in excess of his partial benefit
       credit, (ii) vacation pay, if any, which is in excess of his partial benefit credit, except
       when paid to an employe[e] who is permanently or indefinitely separated from his
       employment and (iii) the amount of severance pay that is attributed to the week.
       9
          Section 804(a) of the Law mandates that any person who receives unemployment
compensation through his or her own fault to which he or she is not entitled must repay the amount
received.


                                                   4
week of July 1, 2017. (Id.) Lastly, the Referee assessed penalties against Claimant,
concluding that her actions violated Sections 801(b) and (c) of the Law,10 because
Claimant knowingly provided false or misleading information in order to receive
benefits in a week in which she was employed. (Id. at 3.) Accordingly, the Referee
imposed a penalty of six weeks of ineligibility and a fee of $82.65. (Id.)
                Claimant then appealed to the Board, seeking a second hearing on the
ground that she was not aware of the new date and time of the rescheduled hearing.
(C.R., Item No. 11.) Claimant represented that she had no knowledge of the new
date and time of the hearing because she stopped the delivery of her mail when she
left the state and that the delivery did not resume until after the hearing. (C.R., Item
No. 11.) Claimant also challenged the merits of the Referee’s decision, explaining
that she had last worked with a particular patient on June 18, 2017, and resumed
work with that patient on July 2, 2017. (Id.) In the interim, Claimant did not perform
any other work for Employer or anyone else. (Id.) The Board affirmed the Referee’s
decision and order and also adopted and incorporated the Referee’s findings of fact
and conclusions of law. (C.R., Item No. 12.) In response to Claimant’s argument,
the Board concluded that Claimant’s allegation that she was unaware of the new date


      10
           Sections 801(b) and (c) of the Law provide, in part:
      (b) Whoever makes a false statement knowing it to be false, or knowingly fails to
      disclose a material fact to obtain or increase any compensation or other payment
      under this act . . . may be disqualified in addition to such week or weeks of improper
      payments for a penalty period of five weeks and for not more than one additional
      week for each such week of improper payment . . . .
      (c) Whoever makes a false statement knowing it to be false, or knowingly fails to
      disclose a material fact to obtain or increase compensation or other payment under
      this act . . . and as a result receives compensation to which he is not entitled shall
      be liable to pay to the Unemployment Compensation Fund a sum equal to fifteen
      per centum (15%) of the amount of the compensation. . . .

                                                 5
and time of the hearing did not constitute good cause for failing to attend the hearing.
Id. In coming to its decision, the Board reasoned:
              The claimant’s appeal to the Board alleges that she had
              been away and placed a stop on her mail delivery, and
              therefore, was not aware of the hearing time until after she
              returned and mail delivery resumed. However, placing a
              hold on the delivery of mail is effectively the same thing
              as not opening it. The Board views the following holding
              from a Mississippi unemployment compensation case to
              be relevant and persuasive: “the evidence provided by [the
              claimant] shows that his failure to receive the notification
              was of his own doing. [The claimant] did not receive the
              notification because he placed a hold on his mail without
              first notifying the [Mississippi Department of
              Employment Security], even knowing that he had a
              pending claim.” Cerrato v. Mississippi Employment Sec.
              Comm’n, 968 So.2d 957, 961 (Miss. Ct. App. 2007).
              Therefore, the claimant has not demonstrated good cause
              for failing to attend the Referee hearing.

(Id. (alterations in original).) Claimant now petitions this Court for review.
              On appeal,11 Claimant asserts that the Board erred by concluding that
Claimant’s allegation that she was unaware of the new date and time of the
rescheduled hearing did not constitute good cause for failing to attend the hearing.
Claimant also asserts that substantial evidence does not exist to support finding of
fact number 3—i.e., that she “earned $2,212.12 the week ending July 1, 2017.”
(C.R., Item No. 9.)
              We will first address Claimant’s error of law claim. The Pennsylvania
Administrative Code contains procedural requirements for proceedings before the

       11
         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.


                                               6
Board. Section 101.51 of Title 34 of the Pennsylvania Administrative Code (Code)
provides:
            If a party notified of the date, hour and place of a hearing
            fails to attend a hearing without proper cause, the hearing
            may be held in his absence. In the absence of all parties,
            the decision may be based upon the pertinent available
            records. The tribunal may take such other action as may
            be deemed appropriate.

34 Pa. Code § 101.51 (emphasis added). Further, where a party requests a further
hearing, the Code sets forth the governing procedures:
            (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 “proper cause”
            for not appearing. . . .
            ....
            (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. 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).

                                          7
             “We have held that not receiving or not timely receiving a hearing
notice can constitute ‘proper cause’ for reopening a hearing.” Volk v. Unemployment
Comp. Bd. of Review, 49 A.3d 38, 40 (Pa. Cmwlth. 2012). Further, our jurisprudence
generally holds that there is a presumption that the notice requirement is met upon
mailing, pursuant to the common law mailbox rule. See Gaskins v. Unemployment
Comp. Bd. of Review, 429 A.2d 138 (Pa. Cmwlth. 1981) (applying common law
mailbox rule to hold that claimant received notice on date notice was mailed). This
presumption, however, is rebuttable. Volk, 49 A.3d at 41. Typically, the party that
makes the claim that he or she did not receive notice must be given an opportunity
to rebut the presumption. See Coin Automatic Laundry Equip. Co. v. Unemployment
Comp. Bd. of Review, 447 A.2d 690 (Pa. Cmwlth. 1982) (holding that employer that
claimed it did not receive notice of hearing in mail until day after hearing had already
been concluded, must be afforded opportunity to rebut presumption that notice
requirement was established). If the party seeking a second hearing does not include
reasons for failing to appear at the hearing, however, the Board may not remand the
case for additional hearings.         McNeill v. Unemployment Comp. Bd. of
Review, 511 A.2d 167, 169 (Pa. 1986). Further, “if the reasons proffered are clearly
legally insufficient to support the finding of proper cause . . . such a hearing would
be unnecessary.” Volk, 49 A.3d at 47 n.12. Accordingly, we have held that where
a party fails to appear at a scheduled hearing—through his or her own fault—the
party does not have good cause for failing to attend a hearing.            Eat’N Park
Hospitality Group, Inc. v. Unemployment Comp. Bd. of Review, 970 A.2d 492, 494
(Pa. Cmwlth. 2008). We have also held that “a claimant’s own negligence is
insufficient ‘proper cause,’ as a matter of law, to justify his failure to appear at a




                                           8
referee’s hearing and warrant a new hearing.” Savage v. Unemployment Comp. Bd.
of Review, 491 A.2d 947, 950 (Pa. Cmwlth. 1985).
             In Eat’N Park Hospitality Group, Inc., after a claimant filed for
unemployment compensation benefits, the employer appealed and asked for its
witness to testify by telephone. Eat’n Park Hospitality Group, Inc., 970 A.2d at 492.
The employer instructed the Referee to reach its witness by calling the employer’s
witness’s contact number and extension. Id. at 493. When the Referee called the
employer’s witness at the number she was given, no one answered the telephone.
Id. The Referee, thereafter, made her decision based on the claimant’s testimony.
Id. The employer then appealed to the Board, which remanded the case to the
Referee to consider the employer’s witness’s testimony as to whether he had good
cause for not appearing at the hearing. Id. at 494. The Board determined that the
employer’s witness did not have good cause for failing to appear at the hearing. Id.
On appeal to this Court, the employer claimed that the Referee was obligated to
follow the instructions on the voice mail system. Id. According to the employer, if
the Referee followed said instructions, she would have dialed zero and contacted the
receptionist, who would have forwarded the call to the employer’s witness who was
awaiting the call in the conference room. Id. We held that the Referee was not
obligated to experiment with the voice mail system, rather than to follow the
instructions given by the employer, which was to dial the number and extension
given. Id. Further, we characterized the employer’s attempt to blame the Referee
for its witness’s failure to appear at the hearing as an attempt to shift fault. Id. We
stated that “[t]his court will not permit [the e]mployer to shift fault to the Referee
for not experimenting with the voice mail system to determine what would happen
if she pressed ‘0’ rather than follow the instructions given by [the e]mployer.” Id.


                                          9
The employer failed to ensure that its witness was available at the number and
extension given, and, therefore, failed to establish good cause for failing to attend
the hearing. Id.
             Here, Claimant does not allege that she did not receive notice of the
hearing. Rather, Claimant argues that she should receive a second hearing based on
the following proffered reason: “I had been away and had my delivery stop [sic].
Mail delivery did not resume until after the schedule [sic] time of the interview. I
was unaware of the new time.” (C.R., Item No. 11 at 4.) In other words, Claimant
admits that she was unaware of the date and time of the rescheduled hearing,
because, through her own actions, she was not able to receive her mail. The Board
responded by concluding that Claimant’s proffered reason for failing to attend the
hearing does not constitute good or proper cause. We agree with the Board’s
conclusion. We note that Claimant could have asked someone to forward or check
her mail or called the Board while away to inquire as to the date of the rescheduled
hearing, if any. Claimant’s actions of stopping her mail combined with not ensuring
that she could receive the notice some other way constitutes at the very least, a
negligent act. These actions may also be construed as an intentional act that resulted
in her failing to attend the hearing. In any case, Claimant alone bears the fault in
this instance—not the Board or any third party. Pursuant to our decisions in Eat’N
Park Hospitality Group, Inc. and Savage, Claimant has failed to establish proper or
good cause sufficient to warrant re-opening her hearing. The Board, therefore, did
not err in denying Claimant’s request for a further hearing.
             Next, Claimant asserts that finding of fact number 3 is not supported by
substantial evidence of record. Substantial evidence is defined as relevant evidence
upon which a reasonable mind could base a conclusion. Johnson v. Unemployment


                                         10
Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining
whether there is substantial evidence to support the Board’s findings, this Court must
examine the testimony in the light most favorable to the prevailing party, giving that
party the benefit of any inferences that can logically and reasonably be drawn from
the evidence. Id. A determination as to whether substantial evidence exists to
support a finding of fact can only be made upon examination of the record as a
whole.   Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831
(Pa. 1977). The Board’s findings of fact are conclusive on appeal only so long as
the record, taken as a whole, contains substantial evidence to support them. Penflex,
Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have
produced witnesses who gave a different version of the events, or that [the party]
might view the testimony differently than the Board is not grounds for reversal if
substantial evidence supports the Board’s findings.” Tapco Inc. v. Unemployment
Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even
if evidence exists in the record that could support a contrary conclusion, it does not
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             Finding of fact number 3 provides: “The claimant earned $2,212.12 the
week ending July 1, 2017.” (C.R., Item No. 10 at 1.) The Service Center received
a letter from Equifax Workforce Solutions, on behalf of Employer, informing it that
Employer paid Claimant the sum of $2,212.12 for the week ending on July 1, 2017—
the same week in which Claimant received unemployment compensation benefits.
(C.R., Item No. 2.) The Service Center then asked Claimant to verify her income.
(C.R., Item No. 3.) Claimant failed to respond to the Service Center’s request. (Id.
at 3.) After the Service Center issued its determination denying her benefits,


                                         11
Claimant appealed but then failed to appear at the hearing where she could have
presented evidence to prove her statement in her petition for appeal. (C.R., Item
No. 9.) Based on all the evidence before her, the Referee affirmed the Service
Center’s determination. (C.R., Item No. 10.) The evidence of record includes the
letter from Equifax Workforce Solutions on behalf of Employer, alleging that
Claimant received payment from Employer for work performed in the same week
for which she received benefits. The record, therefore, contains substantial evidence
to support finding of fact number 3.
             Accordingly, for the reasons discussed above, we affirm the Board’s
order.




                                         P. KEVIN BROBSON, Judge




                                         12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carol A. Schoettle,                  :
                      Petitioner     :
                                     :
            v.                       :   No. 661 C.D. 2018
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :



                                   ORDER


            AND NOW, this 29th day of November, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                     P. KEVIN BROBSON, Judge
