              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pinnacle Health Hospitals,               :
                  Petitioner             :
                                         :   No. 1025 C.D. 2018
            v.                           :
                                         :   Argued: April 9, 2019
Unemployment Compensation                :
Board of Review,                         :
                 Respondent


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                             FILED: May 31, 2019


            Pinnacle Health Hospitals (Employer) petitions for review of the June
26, 2018 order of the Unemployment Compensation Board of Review (Board), which
affirmed the decision of a referee finding David L. Lisco (Claimant) eligible for
unemployment compensation (UC) benefits. This case presents an issue of first
impression with regard to the mailbox rule. Specifically, we are asked to clarify what
constitutes a regular place of mailing for purposes of application of the presumption
of receipt. For the reasons set forth below, we reverse and remand.


                           Facts and Procedural History
            Claimant was terminated from his employment with Employer as a
pharmacist for excessive use of the internet while working. Claimant applied for
benefits and the local service center found him ineligible. Claimant filed an appeal
and a notice of hearing was allegedly mailed to Employer on October 31, 2017. The
notice was not returned as undeliverable. (Board’s Findings of Fact (F.F.) Nos. 1-3.)
After a hearing at which Claimant was the only party to appear, the referee issued a
decision finding Claimant eligible for benefits. Employer appealed to the Board,
which ordered a remand hearing “to receive testimony and evidence on []
[E]mployer’s reason for its nonappearance at the [referee] hearing,” as well as
additional testimony and evidence on the merits. (Reproduced Record (R.R.) at 29a.)
Employer received the notice scheduling the remand hearing for March 12, 2018.
(R.R. at 32a.) Claimant and Employer, through its attorney, appeared at the remand
hearing.
            During the hearing, Employer argued that the notice of hearing was not
mailed by the referee’s office, nor was it received by Employer. Employer presented
the testimony of four witnesses: Two testified regarding how Employer receives and
processes mail, and two testified regarding Claimant’s employment and the merits of
Claimant’s UC claim.
            Employer’s first witness, Lisa Via, testified she had been employed by
employer for 21 years, the majority of which she served as the Operations Manager
for Employer’s mail services. Ms. Via testified that Employer receives its mail from
a courier who picks it up from the post office. She stated the mail is then taken to
Employer’s mailroom in boxes, at which point it is sorted and put into separate boxes
with Employer’s different departments listed on them.          Ms. Via stated that
Employer’s mailroom pays particular attention to pieces of mail that come from the
Department of Labor and Industry (Department), which are placed in a separate box
designated for Human Resources (HR) at Brady Hall. That mail is then taken by a
mail clerk to HR, and placed in a bin at the front desk of the HR Office. Ms. Via


                                         2
stated there is a quality-assurance mechanism to ensure the mail gets to its correct
location in that either the team leader or Ms. Via checks the baskets and tables in the
mailroom at the end of each day to ensure there is no mail left. (R.R. at 34a-36a.)
             Employer also presented the testimony of Allison Beck, Employer’s
Manager of Employee Relations. Ms. Beck testified that she worked in Employer’s
HR office. Ms. Beck explained that once mail is delivered from the mailroom and
left at the front desk of the HR office, it is opened and separated by the HR office’s
secretary, who specifically directs any mail listing “Unemployment Compensation”
to Ms. Beck’s mailbox, which she checks several times a day. (R.R. at 37a.) Ms.
Beck stated that she is the sole person designated by Employer to receive notices
from the Department involving unemployment compensation. Ms. Beck testified
that, although she was awaiting the notice of hearing after Claimant filed an appeal,
she did not receive the notice of hearing for the initial hearing before the referee and,
thus, was unaware of the date and time of the hearing. (R.R. at 37a-38a.)
             After the hearing, the Board issued an order directing another remand
hearing for the purpose of gathering evidence on whether the notice of hearing was
mailed from the referee’s office. Additionally, the Board noted that “[a]n answer to
the following question . . . would be helpful: Does the [r]eferee’s office have any
evidence to indicate that the notice of hearing was placed in the regular place of
mail?” (R.R. at 67a.)
             The second remand hearing was held on April 30, 2018, at which
Claimant, Employer, and Mary Krysakowski, the Clerk Typist for the referee,
appeared. Ms. Krysakowski testified that it is her responsibility to schedule hearings
two weeks prior to the date on which they were to be held. To do so, she stated that
she pulls all files from the file drawer and enters all the information from each file


                                           3
into an automated system, after which she prints out the necessary number of copies
of hearing notices for each hearing. Ms. Krysakowski stated that she then “add[s] all
the information that needs to go in the List of issues, the blue sheet of translator’s
information[,] and [] the translation card,” and she “fold[s] everything up, put[s] them
in envelopes, [and] put[s] them in a basket that will be picked up by our mailroom at
1:00.” (R.R. at 71a.) (emphasis added). Ms. Krysakowski testified that she could
remember nothing specific about Employer’s notice of hearing, but she did observe
that the notice would have been mailed prior to the date that the referee’s office
moved locations.
             On cross-examination, Ms. Krysakowski acknowledged that she does
not personally deposit the notices in the mail or affix the postage to the envelopes,
and that the referee’s office does not get a proof of mailing certificate from the post
office. Ms. Krysakowski indicated that, although she did not keep a log of when
notices were sent, “[b]y our own rules and regulations,” the notices “have to go out
two weeks prior” to the hearing date. (R.R. at 74a.) Ms. Krysaksowki observed that
the notice of hearing itself bears the date of mailing. Finally, noting that Claimant
received his hearing notice, Ms. Krysakowski indicated that both parties’ notices
would have been deposited in the same basket. (R.R. at 75a-77a.)
             By decision and order dated June 26, 2018, the Board affirmed the
referee’s decision and granted Claimant benefits.        With regard to Employer’s
argument that the notice was not mailed, the Board stated that actual evidence of
mailing is not required and evidence of custom is acceptable proof to establish that a
letter placed in the regular place of mailing was sent. The Board reiterated Ms.
Krysakowski’s testimony regarding how she processes the notices of hearing and
found significant Ms. Krysakowski’s testimony that both parties’ notices would have


                                           4
been placed in the same basket. The Board found that Employer’s notice of hearing
was placed in the regular place of mail, relying upon Ms. Krysakowski’s testimony
regarding the custom of placing the notice of hearing in the regular place of mailing.
Accordingly, the Board determined there was insufficient evidence to nullify the
presumption that the notice of hearing was received by Employer, and it declined to
consider Employer’s testimonial evidence regarding the merits of Claimant’s claim
presented at the first remand hearing.1 Given the evidence before it, the Board agreed
with the referee’s finding that Employer failed to meet its burden of establishing that
Claimant’s discharge was for willful misconduct. (Board’s final decision and order at
2-3.)
               Employer petitions for review,2 arguing the Board erred in determining
Employer received the notice of hearing despite the absence of evidence that the
referee’s office sent the notice or that Employer received it.


                                            Discussion
               This Court has held that it is inappropriate for the Board to consider
evidence of a party on the merits of a case when the party has not established a proper
cause for failure to appear at the first hearing.                   Sanders v. Unemployment
Compensation Board of Review, 524 A.2d 1031, 1033 (Pa. Cmwlth. 1987); 34 Pa.


        1
         “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 Department’s
regulations define notice as the mailing of any notice to the parties at their last known address. 34
Pa. Code §101.53.

        2
         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
Code §101.51 (“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.”).
Non-receipt of the hearing notice can constitute proper cause for failure to attend a
hearing. Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 45 (Pa.
Cmwlth. 2012) (en banc); Coin Automatic Laundry Equipment Co. v Unemployment
Compensation Board of Review, 447 A.2d 690, 691 (Pa. Cmwlth. 1982). “[T]he
Department’s regulation at 34 Pa. Code § 101.104(c)[3] provides that, once a party
[who wishes to have his evidence on the merits considered] makes a request for a
hearing and appeal under 34 Pa. Code § 101.24,[4] the Board is required to allow the

       3
           In pertinent part, this regulation states,

                 The further appeal shall be allowed and additional evidence required
                 in any of the following circumstances:
                         ...
                         (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(c).

       4
           In pertinent part, this regulation states,

                 (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[.]

                                                        ...

                 (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
(Footnote continued on next page…)
                                                        6
further appeal and to allow the introduction of additional evidence.” Volk, 49 A.3d at
46.
              Here, Employer alleged not only that it did not receive the notice of
hearing, but also that the notice of hearing was not sent by the referee’s office, which,
if proven, would constitute proper cause.             Id. at 45.      The Board reviewed the
testimonial evidence of Ms. Krysakowski, as well as Employer’s witnesses, and
determined the presumption of receipt applied and had not been rebutted by
Employer.

              In Blast Intermediate Unit # 17 v. Unemployment
              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

(continued…)

              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. . . .

34 Pa. Code §101.24(a), (c). Notably, however, in Volk, this Court held that the Board “must
provide the [party] against whom the presumption of receipt is being asserted the opportunity to
submit evidence to rebut that presumption and to support the asserted reasons believed to be proper
cause for not appearing at the hearing before the Board determines whether the [party] had proper
cause for not attending the hearing.” 49 A.3d at 47.


                                                 7
             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)).

Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1192 (Pa.
Cmwlth. 2016) (emphasis added). Additionally, in Blast, we held, “[T]he 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.” 645 A.2d at 449 (internal quotation marks omitted). Instead, “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.” Id. (emphasis
added) (internal quotation marks omitted).
             “[U]nless a rule or regulation specifies otherwise, proof of [actual]
mailing is not a requirement for a party to prove that a document was actually
mailed.” C.E. v. Department of Public Welfare, 97 A.3d 828, 833 (Pa. Cmwlth.
2014) (emphasis in original). 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.”        Department of Transportation v. Brayman
Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986)
(quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)).
“It is well settled that the presumption in the mailbox rule is not nullified by
testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d
at 566.
                                             8
             Here, in support of the first presumption, the referee’s office offered Ms.
Krysakowski’s testimony. As described above, Ms. Krysakowski testified about how
she processes and prepares the notices for mailing. However, as Employer notes, she
could not testify about what happens to the notices after they are retrieved from the
basket on her desk by a member of the mail room, nor could she testify how postage
is affixed to the envelopes or how the notices are actually placed in the U.S. Mail.
Employer notes that the record does not contain any notation that the notice of
hearing was mailed to Employer. Moreover, although the Board found significant
that the notice itself contained the date of mailing, this Court has held that the mere
fact the item contains the date of mailing does not, without more, establish proof of
mailing. See Douglas, 151 A.3d at 1193 (“[A]lthough 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.”).
             Employer asserts that, in order to get the presumption of regularity, there
has to be testimony indicating how postage is routinely affixed to the envelopes and
how, specifically, the notices are put in the mail or, alternatively, evidence in the
record, such as a notation, indicating the hearing notices were sent out.          Here,
Employer observes that “[t]he Department did not produce a witness to testify
whether or how the [n]otice of [h]earing was affixed with the proper amount of
postage or even that the [n]otice was placed in the mail.” (Employer’s brief at 15.)
             Furthermore, Employer contends that the basket on Ms. Krysakowski’s
desk “was not the place of mailing since someone from the mailroom would have to
come and pick[]up the mail.” Id. Even with the presumption of regularity, Employer


                                            9
contends that, at most, the Board could conclude that Ms. Krysakowski usually
placed the notices in a basket to be picked up by mailroom employees; however, this
could not lead to the conclusion that the notices were usually picked up and taken to
the mailroom, had postage affixed, and were deposited into the mail.
            Although this Court has addressed the mailbox rule innumerable times,
we have not yet been presented with the question of what constitutes a regular place
of mailing. In applying the mailbox rule, this Court has alternatively used the phrases
“regular place of mailing,” or “usual place of mailing,” and “into the mail.” Compare
Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using
“regular place of mailing” and “usual place of mail”), with Douglas, 151 A.3d at
1191 (using “in the mail”). In reading this case law cohesively, we hold that the
regular place of mailing is the place where the properly addressed letter, with postage
affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or
other location where a mail carrier retrieves the mail. Accordingly, in order for the
Board to utilize the presumption of regularity in order to invoke the presumption of
receipt, it must present evidence regarding how properly addressed items, with proper
postage affixed, customarily enter the mail or, alternatively, show “some other
indication that the act in question had been performed” such as a notation in the
record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at
449.
            Applying this holding to the present case, we conclude that the Board
did not present sufficient evidence for the presumption that Employer received the
notice because Ms. Krysakowski’s testimony could not and did not address how and
when the notices she prepares enter the mail or whether the notices receive the proper
postage prior to their mailing, as she only places mail in a basket on her desk, which


                                          10
must then be picked up and further processed.               Indeed, Ms. Krysakowski
acknowledged that the basket on her desk was not the place where the notices
customarily entered the U.S. Mail. Accordingly, we must remand to the Board for
consideration of the evidence Employer submitted regarding the merits of Claimant’s
appeal. On remand, the Board should issue findings on the credibility of Employer’s
witnesses, as well as the credibility of Claimant’s testimony.
             Finally, we disagree with the Board’s contention during argument that
the workers’ compensation case, Sheehan v. Workmen’s Compensation Appeal Board
(Supermarkets General), 600 A.2d 633 (Pa. Cmwlth. 1991), mandates a different
result. In Sheehan, an employee appealed from a decision suspending his workers’
compensation benefits, and the primary issue involved the extent to which the
employer had to take into account his physical limitations when offering him a
position. The employee made additional arguments, including that the employer had
not proved he had received the notice of the job referral. Id. at 636.
             The referee found that the employer had notified the employee of the
position, basing the finding on the testimony of the employer’s assistant supervisor,
who testified that “he wrote and signed a letter on January 29, 1986, to [c]laimant,
advising him that a position was available,” and that while “he did not personally
mail letters,” he “customarily [gave] them to the secretaries to be mailed.” Id. This
Court held that the assistant supervisor’s testimony was “sufficient to show that the
referral was written and signed in the usual course of business and placed in the
regular place of mailing.” Id.
             Sheehan, however, does not require a different outcome in the present
case as it is not ostensibly inconsistent with the holding we set forth today. Initially,
we note that Sheehan has never been cited by this Court or our Supreme Court for the


                                           11
proposition that a party is entitled to the presumption of receipt without first having
provided evidence that the letter was prepaid, properly addressed, and placed in the
mail.5       Furthermore, unlike in the present case, the witness in Sheehan was able to
testify to writing and addressing the specific letter at issue and, moreover, was able to
identify how the letter was entered into the mail—namely, the employer’s secretaries.
Conversely, here, Ms. Krysakowski could not testify about how the notices entered
the mail after they left her desk, or whether they had proper postage affixed
beforehand. Furthermore, it is significant that the claimant in Sheehan was not
prejudiced by the alleged non-receipt of the notice in that it did not cause him to miss
a hearing, file a late appeal, or, like Employer here, result in his inability to present
evidence on the merits of the issue before the referee.


                                             Conclusion
                 Today, we hold that the regular place of mailing is the place where the
item enters the U.S. Mail system, be it a mailbox, post office, or the location where

         5
           Because Sheehan does not specifically state whether the assistant supervisor placed proper
postage on the envelopes or how specifically the secretaries put the letter in the mail, we can only
guess. However, even to the extent that Sheehan could stand for the proposition that the Board was
not required to present evidence of how the letter entered the mail or whether it had postage, such a
holding would be inconsistent with both prior and subsequent precedent. See Jensen v. McCorkell,
26 A. 366, 367 (Pa. 1893) (“[I]t is well settled that the fact of depositing in the post office a
properly addressed, prepaid letter raises a natural presumption, founded in common experience,
that it reached its destination by due course of mail; in other words, it is prima facie evidence that it
was received by the person to whom it was addressed; but that prima facie proof may be rebutted by
evidence showing it was not received.” (emphasis added)); Whitmore v. Dwelling House Insurance,
23 A. 1131, 1131 (Pa. 1892) (Detailed testimony from plaintiff that he “prepared [the letter],
inclosed [sic] it in an envelope properly stamped and addressed . . . and placed it in the post office”
was sufficient to raise presumption it was received.); see also Northeastern Eye Institute v.
Unemployment Compensation Board of Review, 176 A.3d 455, 458 (Pa. Cmwlth. 2017) (en banc)
(reversing the Board for failure to follow the principles outlined in Douglas, 151 A.3d at 1192,
requiring evidence the letter was mailed); Volk.


                                                  12
the mail carrier picks up the mail. In applying our holding to the matter at hand, we
conclude that the presumption of receipt did not apply to Employer because the
testimony of Ms. Krysakowski did not identify how the notices, with proper postage,
entered the mail. Therefore, Employer was entitled to consideration of the evidence
it presented on the merits. Accordingly, the order of the Board is reversed and the
matter is remanded for further proceedings consistent with this opinion.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pinnacle Health Hospitals,               :
                  Petitioner             :
                                         :    No. 1025 C.D. 2018
            v.                           :
                                         :
Unemployment Compensation                :
Board of Review,                         :
                 Respondent

                                     ORDER


            AND NOW, this 31st day of May, 2019, the June 26, 2018 order of the
Unemployment Compensation Board of Review is reversed and the matter is
remanded for further proceedings not inconsistent with this opinion.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
