Wednesday, June 12, 2019

mailbox rule - presumption of receipt requires adequate proof of mailing - regular place of mailing

Pinnacle Health v. UCBR – Cmwlth. Court – reported opinion – May 31, 2019

Employer held to have “proper cause” for failure to attend UC hearing, due to non-receipt of hearing notice.    No presumption of receipt of notice of hearing, since there was inadequate proof of mailing. 

The “presumption of receipt is ‘inapplicable’ in the absence of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.’” Id. (quoting Leight v. UCBR, 410 A.2d 1307, 1309 (Pa. Cmwlth. 1980) (alteration in original)). Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016).

The fact that there was a rule requiring hearing notice to be mailed does not show that it was mailed.   “[T]he mere existence of a rule requiring an act to be performed by a public official is not sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of the notice.” Blaset v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1993).  Instead, “The presumption only comes into play when there is on record some other indication that the act in question had been performed such as a notation to that effect made by a local bureau official that the letter had been deposited in the mail.” Id.

That said, proof of actual mailing is not required unless there is a rule or regulation that specifies otherwise.  C.E. v. DPW, 97 A.3d 828, 833 (Pa. Cmwlth. 2014).  Rather, “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Department of Transportation v. Brayman Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)). “It is well settled that the presumption in the mailbox rule is not nullified by testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d at 566.

There was no proof of mailing in this case.   Clerk in referee office testified that she prepared the notice and put it in a basket on her desk, after which it was retrieved by a person from the mail room.  But there was no testimony about postage being affixed or how notices are actually mnailed.  The fact that the notice contained a “date of mailing” does not, without more, establish proof of mailing. See Douglas, 151 A.3d at 1193. 

Regular place of mailing –  Reading Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using “regular place of mailing” and “usual place of mail”), and  Douglas, 151 A.3d at 1191 (using “in the mail”) together, the Court here held that “the regular place of mailing is the place where the properly addressed letter, with postage affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or other location where a mail carrier retrieves the mail. Accordingly, in order for the Board to utilize the presumption of regularity in order to invoke the presumption of receipt, it must present evidence regarding how properly addressed items, with proper postage affixed, customarily enter the mail or, alternatively, show “some other indication that the act in question had been performed” such as a notation in the record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at 449.

There was not such evidence in this case.  The referee clerk “could not and did not address how and when the notices she prepares enter the mail or whether the notices receive the proper postage prior to their mailing, as she only places mail in a basket on her desk, which must then be picked up and further processed. Indeed, the clerk acknowledged that the basket on her desk was not the place where the notices customarily entered the U.S. Mail. Accordingly, the court remanded to the Board “for consideration of the evidence Employer submitted regarding the merits of Claimant’s appeal.”