           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philip M. Mayo t/d/b/a Mayo’s           :
Classic Catering,                       :
                  Petitioner            :
                                        :
               v.                       : No. 1256 C.D. 2015
                                        : Submitted: December 18, 2015
Department of Labor and Industry,       :
Office of Unemployment                  :
Compensation Tax Services,              :
                 Respondent             :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                             FILED: January 6, 2016


               Philip M. Mayo t/d/b/a Mayo’s Classic Catering (Employer or Mayo)
petitions for review of an order of the Unemployment Compensation Tax Review
Office (Review Office) dismissing Employer’s petition for reassessment (petition)
and discontinuing all related proceedings because it abandoned its appeal. For the
reasons that follow, we vacate the Review Office’s order and remand for further
proceedings.



     1
        This matter was assigned to this panel before January 1, 2016, when President Judge
Pellegrini assumed the status of senior judge.
                                            I.
               In July 2014, Employer received a notice of assessment from the Office
of Unemployment Compensation Tax Services (OUCTS) which it timely appealed to
the Review Office. By letter dated November 21, 2014, the Review Office advised
the parties:

                      It has been determined that the distribution of
               proposed exhibits is likely to benefit the proceedings in the
               instant matter.

                     Accordingly, the Parties are hereby directed to
               exchange exhibits, in accordance with the enclosed
               instructions, no later than January 2, 2015.

                                           ***

                      As a reminder, each Party must serve upon the other
               Party a copy of any objections or additions filed with the
               Presiding Officer, as required by the General Rules of
               Administrative Practice and Procedure (GRAPP), 1 Pa.
               Code §§ 33.32–.37. The filing to this office should include
               certification that a copy also was served upon the other
               Party.

                                           ***

                     Petitioner, who bears the burden in this
               proceeding, also is hereby notified that failure to comply
               with the exhibit exchange, as set forth in this letter and
               the accompanying instructions, will be considered
               disinterest [sic] in the matter, and will result in the
               dismissal of the petition for failure to pursue.


(Certified Record, Letter from the UC Tax Review Office to the Parties (November
21, 2014), at 2) (emphasis in original).




                                            2
              By letter dated December 31, 2014, Employer’s counsel advised the
Review Office that Employer “wants to comply fully with the Office’s request for the
production of documents” but that it could not determine which documents were
relevant until the OUCTS provided further information regarding how it arrived at its
assessment.    (Certified Record, Letter from Employer’s Counsel to the UC Tax
Review Office (December 31, 2014.))


              Subsequently, the Review Office directed the OUCTS to provide certain
information, including the actual amount of purported wages paid by Employer for
the 2012 tax year and the names of the recipients of those wages, no later than
February 25, 2015. The OUCTS complied, after which the Review Office directed
Employer to exchange its exhibits no later than March 30, 2015. The Review Office
then granted Employer’s request for an extension of time to allow Employer to gather
the documents from its accountant and directed Employer to exchange the subject
exhibits no later than April 30, 2015. By letter bearing a mailing date of April 30,
2015, Employer requested a second extension, advising that its accountant located the
subject documents but needed to retrieve them from storage and, therefore, requested
an extension until May 31, 2015.


              Although the Review Board granted an extension until June 1, 2015, by
order dated June 15, 2015, it explained that Employer failed to provide the requested
documentation and thereby “effectively abandoned the appeal by [its] failure to
respond.”     (6/15/15 Order of the Secretary of Labor and Industry.)      As such,
Employer’s petition was dismissed and all associated proceedings were discontinued.




                                         3
                                                II.
               On appeal,2 Employer contends that it complied with the Review
Board’s order and submitted its exhibits by letter dated June 1, 2015, despite the fact
that this correspondence does not appear in the certified record. In support of its
argument, Employer relies upon a letter dated June 1, 2015, which it included in its
reproduced record and which states:

                     In accordance with your office’s letters dated
               November 21, 2014 and May 6, 2015, respectively, in the
               above-captioned matter, enclosed please find true and
               correct copies of the exhibits [Mayo] intends to introduce,
               being [Mayo] 1 ([Mayo]’s Form 1096 for 2012), and
               [Mayo] 2 (Form 1099s issued by [Mayo] to his workers for
               2012). [Mayo] reserves the right to supplement [its]
               exhibits, should the need arise….


(Reproduced Record [R.R.] at 9a.)


               Conversely, the Review Office argues that it never received the letter
and, because it is not contained in the certified record, it may not be considered by
this Court on appeal. As such, the Review Office suggests that the certified record
offers substantial support for its finding that Employer failed to comply with the
Review Office’s directive to exchange exhibits on or before June 1, 2015.




       2
         The Court’s review is limited to determining whether the Review Office’s findings of fact
are supported by substantial evidence, whether constitutional rights were violated, or whether errors
of law were committed. Showers v. Unemployment Compensation Board of Review, 64 A.3d 1143,
1146 n. 4 (Pa. Cmwlth. 2013).



                                                 4
              Importantly, the June 15, 2015 deadline established by the Review
Office was not jurisdictional; rather, it was a scheduling deadline akin to a pre-trial
order regarding the date by which exhibits had to be exchanged. Moreover, the
absence of a document in the certified record “creates, at best, an inference” that the
agency did not receive the document and, therefore, that it was not filed. Bennett v.
Unemployment Compensation Board of Review, 33 A.3d 133, 137 (Pa. Cmwlth.
2011) (en banc). Before an agency may dismiss an appeal for a party’s lack of failure
to timely file a document, an appellant should be provided an opportunity at a hearing
to establish the timeliness of its filing notwithstanding its absence in the record. Id.;
see also Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000,
1002 (Pa. Cmwlth. 2010).          Because Employer’s exhibit and position, if found
credible and persuasive, could support a finding that it timely complied with the
Review Office’s directive, a hearing must be held to make that determination. This is
particularly true where, as here, even if the alleged deficiency does exist, it does not
deprive the Review Office of its jurisdiction over Employer’s appeal.3


              Accordingly, we vacate the Review Office’s order and remand this
matter to the Review Office to hold a hearing to determine, as a matter of fact,
whether Employer complied with its previous directive.




                                          DAN PELLEGRINI, President Judge


       3
          Unlike statutory appeal periods which may not be extended as a matter of grace or mere
indulgence, Russo, 13 A.3d at 1003, the Review Office was clearly capable of extending and, in
fact, did extend the deadlines governing the exchange of exhibits.


                                               5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philip M. Mayo t/d/b/a Mayo's          :
Classic Catering,                      :
                  Petitioner           :
                                       :
            v.                         : No. 1256 C.D. 2015
                                       :
Department of Labor and Industry,      :
Office of Unemployment                 :
Compensation Tax Services,             :
                 Respondent            :




                                     ORDER


            AND NOW, this 6th day of January, 2016, we vacate the order of the
Department of Labor and Industry, Unemployment Compensation Tax Review Office
in the above-captioned matter and remand this case for further proceedings consistent
with the foregoing opinion.


            Jurisdiction is relinquished.




                                       DAN PELLEGRINI, President Judge
