          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erica M. Tice,                           :
                    Petitioner           :
                                         :
             v.                          : No. 177 C.D. 2018
                                         : Submitted: June 29, 2018
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                       FILED: July 23, 2018


             Erica M. Tice (Claimant) petitions for review of the Unemployment
Compensation Board of Review’s (Board) decision finding that she did not have a
good reason for her nonappearance at the Referee’s hearing and finding that she
was ineligible for unemployment compensation (UC) benefits because she was
terminated for willful misconduct under Section 402(e) of the Unemployment
Compensation Law (Law).1 On appeal, Claimant asserts only one issue – that the


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides that an employee is ineligible for benefits for any week:

             In which his unemployment is due to his discharge or temporary
             suspension from work for willful misconduct connected with his
(Footnote continued on next page…)
Board erred in finding that her failure to attend the hearing due to the post office’s
late delivery of her mail did not constitute proper cause. For the following reasons,
we affirm.


             Claimant was previously employed by Keystone Clippers, LLC
(Employer) as a part-time stylist, averaging 15 hours per week at $9.00 per hour.
In April 2017, she received multiple write-ups for her failure to follow company
policy. On April 22 and 23, 2017, she was written up for tardiness. On May 8,
2017, Claimant reported to work more than 30 minutes late. On May 9, 2017, she
was terminated for tardiness after having already received a warning.


             Claimant filed for UC benefits with the Erie UC Service Center,
which granted benefits. Employer appealed, and a hearing was scheduled before a
Referee on July 7, 2017. On June 23, 2017, notice of the hearing was mailed to
Claimant at her address, 87 Pasadena Street, Pittsburgh, Pennsylvania, 15211.


             At the hearing, two witnesses appeared on behalf of Employer but
Claimant did not appear. Shannon Noyes (Noyes), Employer’s area manager who
oversaw Claimant’s work, stated with regard to Claimant’s performance:

             This was her kind of second chance with us. She was
             employed with us and let go from our Rexford [sic]


(continued…)

             work, irrespective of whether or not such work is “employment” as
             defined in this act.




                                            2
            location, and that was a month before she came to our
            Oakwood location. She pretty much didn’t show up for
            her shifts there, she just stopped showing up and she
            didn’t call or let us know what was going on and then a
            few days later her mom contacted the manager and let
            her know that she was unable to work for anxiety reasons
            and she was under treatment for that. Then she reached
            out to us, she said that she took care of herself, she was
            okay. In her time there, though, she, we were having
            issues with her following dress code, coming to work on
            time. There was money that was missing out of Team
            members’ purses when it was just [sic] and them
            working. So the possible fact that we suspected, we
            worked all that out with her when she reapplied and let
            her know, like, if anything, she has to follow our policies,
            this is her last chance. When she came back, she called
            off . . . she did no call no show for a shift, she was also
            tardy for several shifts. She would leave the store
            without the management’s permission, whether to smoke
            or to get food, without permission from her manager, and
            those would be on small 4 hour shifts. She came to work
            a few times unable to perform her job. She said that she
            took anxiety medicine and she took a little bit too much
            of it a couple of the times, she said. So, we had to, you
            know, deal with that. Clients complained saying she was
            unprofessional with them, stylists were starting to feel
            uncomfortable working with her. And then also, just like
            in her previous location, she would not follow the dress
            code, [the store manager] would have to talk to her
            numerous times. Letting her know that you are not
            wearing our uniform, you need to be wearing black
            athletic pants and your vest and she would just come in
            wearing, like, sweat pants and a t-shirt. So, she just
            wasn’t following the policies and procedures and we
            talked numerous times, let her know, she has been
            through the handbook, she knew what she was expected
            [to do] and she just wasn’t willing to do it.


(Record (R.) Item No. 8, Referee’s Hearing: Transcript of Testimony w/ Employer
Exhibits, 7/7/2017, pp. 3 – 4.) Based on the evidence presented by Employer, the


                                         3
Referee denied benefits, finding that Claimant had been terminated for willful
misconduct.


              Claimant appealed to the Board, alleging that she had not received
notification of the hearing and requesting a remand. Under Section 101.51 of the
Board’s procedural rules:

              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.) In such an event, the Board may choose
to remand the matter to the Referee to hold a hearing in order to determine whether
the claimant had proper cause for failing to appear, and, in the event proper cause
is found, to consider additional substantive evidence. Here, the Board found that a
further hearing was proper and remanded the matter to the Referee to receive
testimony and evidence on Claimant’s reason for her nonappearance.


              At the remand hearing, Claimant testified that she received mail at her
current mailing address, 87 Pasadena Street. When asked if she had any problems
with her mail delivery, she responded:

              Not normally I don’t. But sometimes you know, I’ll get
              mail like days later. The mail that I received for this
              [hearing] I was not expecting at all. So, whenever I did
              receive it, it was already past the [hearing] date.


                                           4
(R. Item No. 14, Board’s Hearing: Transcript of Testimony w/ Board Exhibits,
10/3/2017, p. 3.) When asked to clarify what potentially caused the delay in
receipt of her mail, Claimant responded:

              I – it was around the 4th of July, so I don’t know if that’s
              what delayed it, but all of my mail that I was – was
              supposed to receive, I didn’t end up getting until after
              this [h]earing was already held.


(Id.) Claimant testified that despite the fact that the notification for the July 7,
2017 hearing was mailed to her on June 23, 2017, she did not actually receive it
until July 21, 2017, well after the hearing occurred.


              Finding Claimant’s testimony about her alleged mail problems not
credible, the Board found that Claimant did not have a good reason for her
nonappearance at the July 7, 2017 hearing and affirmed the Referee’s decision.
This petition for review followed.


              In her brief, Claimant does not address the underlying issue of
whether there was substantial evidence to support the Board’s finding that she was
terminated for willful misconduct. Rather, the sole issue she raises is that the
Board erred in finding that she did not have good cause for her nonappearance.2


       2
         This Court’s 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. Philadelphia Gas Works v. Unemployment
Compensation Board of Review, 671 A.2d 264 (Pa. Cmwlth. 1996).

(Footnote continued on next page…)

                                              5
               A claimant asserting non-receipt of mail must overcome the
presumption created by the common law mailbox rule. Douglas v. Unemployment
Compensation Board of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016). 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 Compensation Board of
Review, 955 A.2d 1077, 1079 (Pa. Cmwlth. 2008).                     In this matter, the only
evidence Claimant offered that she did not receive notice was her own testimony,
which the Board did not find to be credible.


               The Board may either accept or reject a witness’s testimony whether
or not it is corroborated by other evidence of record. Chapman v. Unemployment
Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). Because
the Board is the ultimate fact finder and determiner of credibility, those
determinations are not subject to judicial review. McCarthy v. Unemployment
Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003).


(continued…)

       On appeal, Claimant attempts to argue that she can provide a letter stating that for safety
purposes, the United States Postal Service will no longer deliver mail to her address until she
makes certain repairs to her steps, as well as a picture of said steps. However, none of this
evidence was presented at the remand hearing; rather, the only evidence Claimant presented
regarding her absence was her own testimony that she did not receive notice until July 21, 2017.
Furthermore, at the hearing, Claimant testified that she still received mail at her address and she
normally did not have problems with receiving mail. Because this additional evidence that
Claimant references in her brief was not part of the record before the Board, Claimant may not
attempt to present this evidence now. See Pennsylvania Turnpike Commission v. Unemployment
Compensation Board of Review, 991 A.2d 971 (Pa. Cmwlth. 2009) (holding that this Court may
not consider any evidence that is not part of the certified record on appeal).



                                                6
            Because this Court may not review the Board’s credibility
determinations and the Board determined that Claimant’s testimony was not
credible, there is no evidence to support a finding that Claimant had good cause to
miss the hearing before the Referee, and the Board did not err in refusing to
consider substantive evidence as to the cause of Claimant’s termination.


            Accordingly, we affirm.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                         7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erica M. Tice,                    :
                  Petitioner      :
                                  :
             v.                   : No. 177 C.D. 2018
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :




                               ORDER


             AND NOW, this 23rd day of July, 2018, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.



                                  __________________________________
                                  DAN PELLEGRINI, Senior Judge
