Opinion
No. 1316 C.D. 2011
02-23-2012
Noelia Mensinger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Noelia Mensinger (Claimant) petitions for review of the June 15, 2011, order of the Unemployment Compensation Board of Review (Board) which held that Claimant is ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended 43 P.S. §802(b). Pursuant to section 402(b) of the Law, an employee who voluntarily terminates her employment without a necessitous and compelling reason is ineligible for benefits.
On October 10, 2010, Claimant filed a claim for unemployment compensation benefits following the termination of her employment as a sous chef with PF Changs China Bistro (Employer). Claimant listed her mailing address as PO Box 7070, Trenton, NJ 08628. (Certified Record (C.R.) Item No. 2 at 1.) The local service center representative determined that Claimant had a necessitous and compelling reason for taking a leave of absence from her employment and that she had exhausted all alternatives prior to taking the leave of absence. (C.R. Item No. 4.) Accordingly, the representative determined Claimant was eligible for benefits under the Law. Employer appealed the representative's determination. (Id.)
On January 19, 2011, the Board sent Claimant notice of a hearing to be held on February 2, 2011. (C.R. Item No. 7 at 1.) The notice was sent to Claimant at PO Box 7070, Trenton, NJ 08628. (Id.)
On February 4, 2011, the Board sent Claimant notice that the hearing was continued to February 15, 2011. (C.R. Item No. 7 at 5.) Again, the notice was sent to Claimant at PO Box 7070, Trenton, NJ 08628. (Id.)
On February 15, 2011, a referee conducted a hearing on Employer's appeal. Claimant did not appear. Employer's operating partner testified regarding the circumstances underlying Claimant's separation from employment. (N.T. 2/15/11 at 1.)
"N.T. 2/15/11" refers to the transcript of the February 15, 2011, hearing.
On February 23, 2011, the referee issued a decision disposing of the appeal in which she made the following relevant findings of fact: (1) Claimant's last day of work for Employer was September 11, 2010; (2) after a personal leave of absence, Claimant was scheduled to report to work on September 27, 2010; (3) Claimant did not return to work as scheduled; (4) Employer did not discharge Claimant; and (5) continuing work was available. (Referee Decision at 1.) The referee noted that although duly notified of the date, time, and place, Claimant did not appear at the hearing to offer testimony or any other evidence. (Id. at 2.) The referee determined that Claimant did not sustain her burden of proof under section 402(b) of the Law because there was no competent evidence in the record to establish that she voluntarily left work for cause of a necessitous and compelling nature. (Id.) Accordingly, the referee determined that Claimant was ineligible for benefits under section 402(b). (Id.) The referee's decision was sent to Claimant at Box 7070, Trenton, NJ 08628. (Id. at 1.)
On February 24, 2011, Claimant called the Board and stated that she did not receive notice of the hearing until that day because she had been living in a shelter and had a confidential address. (C.R. Item No. 10.) Claimant also indicated that she had a new mailing address of PO Box 207, Trenton, NJ 08620. (Id.)
On March 3, 2011, Claimant appealed the referee's decision to the Board. (C.R. Item No. 11.) Claimant stated that she did not receive the notice of the referee's February 15th hearing until February 24th because she had moved into a domestic violence shelter, and then into a domestic violence transitional housing program, and had been enrolled in the New Jersey Address Confidentiality Program (ACP). (Id. at 3.) Claimant stated that her current address was PO Box 207, Trenton, NJ 08620-0207. (Id.)
On April 6, 2011, the Board issued an order remanding the matter to the referee for a hearing to receive evidence and testimony on Claimant's reason for not appearing at the February 15th hearing. (C.R. Item No. 13.) The order stated that the parties could also provide new or additional testimony and evidence on the merits of the appeal. (Id.)
On April 18, 2011, the Board sent Claimant notice that the remand hearing would be conducted before the referee on May 6, 2011. (C.R. Item No. 14.) The notice was sent to Claimant at address of PO Box 207, Trenton, NJ 08620. (Id. at 1.)
On May 6, 2011, Claimant appeared at the remand hearing and presented testimony and evidence. (N.T. 5/6/11 at 1, 3-10.) Claimant testified that she used the PO Box address of the domestic violence center from October 1st to December 15th. (Id. at 7.) Claimant also testified that she obtained a new PO Box at the end of December. (Id. at 4.) Claimant stated that the new PO Box address is not the shelter's address but is for her house. (Id. at 7.)
"N.T. 5/6/11" refers to the transcript of the May 6, 2011 hearing.
Claimant's Exhibit 2, a letter from the client advocate at the shelter was also admitted into evidence. (N.T. 5/6/11 at 8.). The letter states that Claimant transferred from the shelter to the transitional housing program in December 2010. (C.R. Item No. 15 at 17.) The letter also indicates that Claimant's mail had been untimely delivered because it was sent to the shelter's PO Box. (Id.)
On June 15, 2011, the Board issued an order disposing of Claimant's appeal which stated the following:
The Board finds that the claimant has not proven good cause for her nonappearance at the first Referee hearing. The claimant claimed that she did not get the Hearing Notice in a timely fashion because it was sent to a domestic violence shelter P.O. Box. However, at the remand hearing, the claimant testified that she used the domestic violence shelter P.O. Box from October 1 through December 15, 2010, at which time she got her own P.O. Box for her new home. The Hearing Notice was mailed to the claimant on February 4, 2011, more than six weeks after the claimant had her new P.O. Box. The claimant did not inform the Department of a new address in this time period. Therefore, any delay in the receipt of the notice was due to
the claimant's own negligence. Therefore, the Board has not considered the testimony on the merits offered at the remand hearing. In giving consideration to the entire record of the prior proceedings, the Board concludes that the determination made by the Referee is proper under the [Law] as interpreted by the appellate courts. Therefore, the Board adopts and incorporates the Referee's findings and conclusions, and enters the following order:(Board Order.) Claimant then filed the instant petition for review.,
The decision of the Referee is affirmed.
On June 24, 2011, Claimant filed a request for reconsideration with the Board. (CR Item No. 17.) The Board denied Claimant's request on August 8, 2011. (CR Item No. 19.)
This Court's scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
The sole claim raised by Claimant in this appeal is that the Board erred in failing to consider the effect of her enrollment in the ACP in finding that the delay in her receipt of the notice of the February 15, 2011, hearing was due to her own negligence.
Section 101.53 of the Department's regulations provides that the "[m]ailing of notices, orders or decisions of a referee, or of the Board to the parties at their last known addresses as furnished by the parties to the referee, the Board or the Department, shall constitute notice of the matters therein contained." 34 Pa. Code §101.53. In addition, section 101.51 of the regulations states, in pertinent part, that "[i]f 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...." 34 Pa. Code §101.51.
The Department referred to in Section 101.53 is the Commonwealth's Department of Labor and Industry. 34 Pa. Code §101.2; Gadsden v. Unemployment Compensation Board of Review, 479 A.2d 74 (Pa. Cmwlth. 1984).
This Court has held that a party's own negligence is not "proper cause" as a matter of law for failing to appear at a hearing. Eat'N Park Hospitality Group, Inc. v. Unemployment Compensation Board of Review, 970 A.2d 492 (Pa. Cmwlth. 2008); Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa. Cmwlth. 2000); Savage v. Unemployment Compensation Board of Review, 491 A.2d 947 (Pa. Cmwlth. 1985).
In Eat'N Park Hospitality Group, Inc., the employer requested permission for its witness to testify by telephone. The referee issued a notice indicating the date and time of the hearing and that the employer's witness would be contacted by phone. The day of the hearing, the referee called the witness twice at the number provided by the employer but reached the witness' voicemail both times. The employer did not participate in the hearing, and the referee affirmed the service center's decision based on the claimant's unopposed testimony. On appeal, the Board remanded to the referee to determine if the employer's witness had proper cause for missing the initial hearing and the referee held a second hearing at which the employer's witness testified. Based on that testimony, the Board determined that the employer's witness did not have good cause for failing to appear at the initial hearing because the witness did not tell the referee how to reach him through his voice mail. As a result, the Board excluded the witness' testimony. Our Court affirmed, holding that any miscommunication was the result of the witness' own negligence and that the employer, therefore, did not establish proper cause to reopen the record for another hearing.
In Kelly, the Board found that the employer had proper cause for failing to attend a hearing because the employer's personnel director had emergency surgery and did not receive notice of the hearing. On appeal to this Court, the claimant asserted that the Board erred in concluding that the employer had proper cause to reopen the hearing and, therefore, that the testimony presented by employer at the second hearing should be excluded. Our Court observed that the personnel director was present in her office for several days during the month the notice was received, that the person receiving the personnel director's mail in her absence should have been aware of the hearing, and that a second employee also received notice of the hearing. We held that the Board erred in allowing the employer to present testimony at a second hearing because the employer was negligent in missing the initial hearing and, therefore, did not establish proper cause for its absence.
In Savage, the claimant missed his hearing before a referee because he misread the date on the hearing notice. The Board refused the claimant's request to remand the matter to the referee to reopen the record. On appeal, we observed that the notice provided to the claimant included the date, hour, and place of the hearing and that the claimant admitted that he missed the hearing because he misread the notice. Affirming the Board's order, we held that the claimant's own negligence was insufficient proper cause to justify his failure to appear and warrant a new hearing.
Clearly, a party's failure to timely notify the unemployment compensation authorities of a change in address constitutes negligence precluding a finding of "proper cause". See Ferraro v. Unemployment Compensation Board of Review, 464 A.2d 697, 699 (Pa. Cmwlth. 1983) (holding that a claimant's appeal to the Board was untimely under section 501(e) of the Law where the reason for tardiness in the claimant's request for an appeal was her own delay in notifying the unemployment compensation or the postal authorities of her change in address.)
43 P.S. §821(e).
See also Gadsden, 479 A.2d at 76-77 (holding that a remand was required, inter alia, for a hearing for a claimant to present evidence relating to when she informed the unemployment compensation authorities of her correct address where she alleged that she did not receive notice of the referee's hearing because the notice was not sent to her last known address and that she had provided her correct address before the notice was sent.)
As noted above, in its order the Board found: Claimant used the domestic violence shelter PO Box from October 1 through December 15, 2010, at which time she got her own PO Box for her new home; the notice of the February 15th hearing was mailed to Claimant on February 4th, more than six weeks after she had her new PO Box; and Claimant did not inform the unemployment compensation authorities of her new address in this time period. These findings support the Board's determination that Claimant's own negligence caused the delay in her receipt of the hearing notice and that it is not "proper cause" as a matter of law for her failure to appear at the February 15th hearing.
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). Thus, issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Id. --------
Nevertheless, Claimant asserts that the Board erred in failing to consider the effect of her enrollment in the ACP in finding that the delay in her receipt of the notice was due to her own negligence. However, the record evidence belies her contention.
Claimant testified that the notice of the hearing was sent to her at the shelter. (N.T. 5/6/11 at 4.) Claimant also testified that she used the PO Box address of the domestic violence center from October 1st to December 15th. (Id. at 7.) Claimant stated that she obtained a new PO Box at the end of December, and that her new PO Box address is not the shelter's address but the address for her house. (Id. at 4, 7.) Claimant's Exhibit 1 was admitted at the hearing, (id. at 7), and indicates that she received a new substitute address from the ACP on January 4, 2011. (C.R. Item No. 15 at 16.) Significantly, the ACP recommended the use of the substitute address "[w]henever you establish or change any record with a state or local government agency...." (Id.)
Thus, the notice of the February 15th hearing was mailed to Claimant at the shelter's address on February 4th, more than six weeks after she had her new PO Box for her house and more than four weeks after the ACP had provided her with a new substitute address. Yet Claimant failed to notify the unemployment compensation authorities of the new addresses until she called the Board on February 24, 2011, and gave them her new PO Box for her house. (C.R. Item No. 10.) Under such circumstances, the Board did not err in determining that Claimant's own negligence caused the delay in her receipt of the hearing notice, not the assignment of a substitute address, and that she did not have "proper cause" as a matter of law for her failure to appear at the February 15th hearing.
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 23rd day of February, 2012, the June 15, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge