"Where a party fails to appear at a scheduled hearing, the Board may remand the case for an additional hearing only where the Board has made an independent determination that the reasons set forth by the party for its failure to appear constitute proper cause." Sanders v. UCBR, 524 A.2d 1031, 1032 (Pa. Cmwlth. 1987) (emphasis added); see also 34 Pa. Code §101.24.
Under Rule 101.24, "[i]f a party fails to appear at a scheduled hearing, that party must show good cause for that failure before the Board will delay the final disposition of the case by remanding for additional hearings." McNeill v. UCBR, 510 Pa. 574, 579, 511 A.2d 167, 169 (1986).
If the evidence in the record supports that a notice from the Board was mailed to a party’s last known address and not returned as undeliverable by the Post Office, it is presumed that the notice was received. See Gaskins v. UCBR, 429 A.2d 138 (Pa. Cmwlth. 1981) (affirming the Board’s denial of an untimely appeal where notice of the referee’s decision was mailed, was not returned by the postal authorities, and contained the information necessary to put the claimant on notice of the referee’s decision). This presumption is rebuttable. Id.
However, the mere assertion that the notice was not received, without factual support of any kind, is insufficient to rebut this presumption and does not constitute “good cause” for not appearing at a hearing. Otherwise, there would be no incentive to appear at the initial hearing. See McNeill. See also Wheeler v. Red Rose Transit Authority, 890 A.2d 1228, 1231 (Pa. Cmwlth 2006) (“testimony alone” that a notice from the court was not received will not rebut the presumption under Pa. R.C.P. No. 440(b) that notice was received); Kulick v. Commonwealth, 666 A.2d 1148 (Pa. Cmwlth. 1995) (testimony that a third party interfered with receipt of mail does not satisfy the burden of proving mail was not received); Sheehan v. WCAB, 600 A.2d 633 (Pa. Cmwlth. 1991) (testimony denying receipt is insufficient, in and of itself, to rebut the presumption that a properly-mailed item was received); Commonwealth v. Warenczuk, 636 A.2d 1225, 1226 (Pa. Cmwlth. 1991) (presumption that notice of a license suspension was received is not rebutted by “mere denial of receipt”).
__________________
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
Rule 237.5 requires that the 10-Day Notice "be substantially in the following form":
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. Pa. R.C.P. No. 237.5 (emphasis added).
The Plaintiff's 10-Day Notice to Defendant provided:
You are in default because you have failed to take action required of you in this case. Unless you act within ten (10) days from the date of this notice, a Judgment may be entered against you without a hearing and you may lose your property or other important rights. . . . (emphasis added).)
The Plaintiff's notice is not identical to the Rule 237.5 form. Rather than instructing Defendant specifically of what he failed to do that led the Plaintiff to issue the notice, as the Rule 237.5 form provides, the Plaintiff's's notice only informed Defendant that he was in default because he "failed to take action required of [him] in this case."
In light of this apparent inconsistency on the face of the record, our analysis must proceed as follows: (a) did the Plaintiff's notice comply with Rule 237.5 because, though not identical, it was "substantially" in the form required by the rule, and, if not, (b) is it a fatal defect such that the default judgment must be set aside.
Held,
a) The notice was not "substantially in the form" required by the rules of procedure - Under the prior version of Rule 237.5, the notice only had to inform defendant that it he was in default, notify the defendant that the plaintiff intends to seek a default judgment if action is not taken within ten (10) days, and include some indicia of notice to legal counsel for the defendant, if represented. But with the 2004 amendment, Rule 237.5 now imposes an additional notice requirement on a plaintiff who wishes to obtain a judgment by default—i.e., the plaintiff must now include in the 10-Day Notice specific reasons why the defendant is in default. It is this additional notice that is absent in any form from the Plaintiff's's 10-Day Notice. Without this additional notice component, required by the Pennsylvania Rules of Civil Procedure for over five (5) years before the Plaintiff filed its complaint, we cannot consider the City’s notice to be "substantially" in the form required by Rule 237.5. The City, therefore, failed to comply with Rule 237.5 and, consequently, Rule 237.1(a)(2) of the Pennsylvania Rules of Civil Procedure.
b) The defect was fatal to the case, in which the judgment must be stricken - A default judgment entered where there has not been strict compliance with the rules of civil procedure is void." Franklin Interiors, Inc. v. Browns Lane, Inc., 323 A.2d 226, 228 (Pa. Super. 1974). Rules allowing a party to obtain a judgment by filing a praecipe, whether for non pros or by default for failure to plead, must be strictly construed. The 10-Day Notice required by Rule 237.1 in this case was defective on its face, as it was not "substantially" in the form required by Rule 237.5. Rather, the notice was based on the Old Form Notice, which the Pennsylvania Supreme Court amended to include the very language that the City omitted from its notice in this case—language that the Supreme Court added for a specific reason. Erie Ins. Co. v. Bullard, 839 A.2d 383, 387 (Pa. Super. 2003). Failure to include this key language was, therefore, a fatal defect. Regardless of the level of actual notice Defendant had, he did not have the type and extent of notice that the Pennsylvania Supreme Court required the City to provide before obtaining a default judgment.
However, in this case, there was no sufficient proof of such conduct. Employer's evidence consists solely of testimony was based upon phone records that were never introduced into evidence. Although Claimant did not raise a hearsay objection, under the legal residuum rule, hearsay evidence admitted without objection will be given its natural probative effect only if it is corroborated by any competent evidence in the record.‟" Greer v. UCBR, 4 A.3d 733, 737 n.7 (Pa. Cmwlth. 2010) (quoting Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). Here, there is no such corroboration in the record. Claimant did not admit to any wrongdoing and the employer witness did not testify from her own observation and knowledge.
__________________
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.