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.”
