Friday, December 16, 2011

UC - appeal - email - timeliness - opportunity to rebut absence of evid. of receipt by UCBR

Bennett v. UCBR - Cmwlth. Court - December 16, 2011 (en banc, 6-1)

The Court vacated the UCBR decision on timeliness of the appeal and remanded the case, directing the Board to consider the claimant's evidence on the issue, which the Board had previously ignored, holding that this was a capricious disregard of competent evidence.

Wright v. UCBR, ___ A.3d ___ (Pa. Cmwlth., filed December 16, 2011) (en banc, 5-2), established that the absence of an appeal document in the Board’s record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. In that situation, a claimant should be given an opportunity to establish, at a hearing before a referee, that he or she filed a timely appeal notwithstanding the absence of the appeal document in the Board’s record.

Here and in Wright (also filed today), the court held that the failure to consider the claimant's uncontradicted evidence on the issue of timeliness constituted a capricious disregard of the uncontradicted evidence at the hearing before the referee. In each case, that evidence included testimony and documents that showed that, though not in the Board’s record, the claimant transmitted the earlier appeal document to the Board

Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the notice of determination to the Board by electronic means before the expiration of the appeal deadline.

Neither the Referee nor the Board addressed Claimant’s testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board’s record prior to the hearing.

The court found this "particularly troubling", because the Board’s hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant’s appeal. It found that Claimant’s testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail, notwithstanding the absence of that earlier e-mail appeal in the Board’s record. Accordingly, the Board capriciously disregarded record evidence.

The court rejected the Board argument that this case is controlled by Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), since in that case, the Board at least considered the claimant’s evidence and made factual findings with respect to the claimant’s claim that, notwithstanding its absence from the Board’s record, the claimant filed an earlier, timely appeal by e-mail. Here, the Board and the Referee made no such findings. Claimant here, like the claimant in Wright, attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control this appeal.

The court vacated the Board’s decision and remanded the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail and to make appropriate and necessary factual findings.