Monday, October 17, 2011

UC - failure to appear at hearing - good cause

Beaumont Retirement Center v. UCBR - Cmwlth. Court - October 17, 2011- unreported memorandum opinion.




The employer's failed to appear at the referee hearing, and the referee and Board granted benefits. The court rejected the employer appeal, because no good cause for failure to appear was shown.


"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”).


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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.


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