Scott v. UCBR - Cmwlth. Court - December 18, 2008 - unreported memorandum opinion
http://www.courts.state.pa.us/OpPosting/Cwealth/out/985CD08_12-18-08.pdf
Held, that where good cause for a remand does not appear on the face of a request by a party who did not attend the initial hearing, it is error for the Board to grant a remand under 34 Pa. Code §101.24. In this case, claimant said that she did not attend because she couldn't find the location of the hearing, even though she had received proper and timely written notice.
The regulation provides: (a) If a party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute “proper cause,” the case shall be reopened. Requests for reopening, whether made to the referee or Board, shall be in writing; shall give the reasons believed to constitute “proper cause” for not appearing …. (c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is …. denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
The Board has discretion regarding requests for remands to supplement a hearing record. Harrison v. UCBR, 457 A.2d 238 (Pa. Cmwlth. 1983). In reviewing a decision of the Board to deny a request for a remand, the court will reverse the Board’s decision only if the Board has abused its discretion. Department of Auditor General v. UCBR, 484 A.2d 829 (Pa. Cmwlth. 1984).
The usual purpose of a remand is to allow the submission of pertinent evidence that a party did not offer at the initial hearing because it was not available at that time. Brady v. UCBR, 539 A.2d 936 (Pa. Cmwlth. 1988). Thus, in Flores v. UCBR, 686 A.2d 66 (Pa. Cmwlth. 1996), the court held that the Board did not abuse its discretion in denying a request for a remand for the submission of evidence that had been available at the time of the original hearing. See also Fisher v. UCBR, 696 A.2d 895 (Pa. Cmwlth. 1997).
In Sanders v. UCBR, 524 A.2d 1031 (Pa. Cmwlth. 1987), the court held that the Board had abused its discretion in remanding a case for a second hearing where the employer had not offered good cause as to why it did not appear at the initial hearing. The Court held that it was not “necessary to remand a case to the Board for findings of good cause where, as here, the employer’s explanations on for its failure to appear do not--on their face--rise to the level of ‘proper cause’ as a matter of law.” Sanders, 524 A.2d at 1033 (citation omitted). See also, Ortiz v. UCBR, 481 A.2d 1383 (Pa. Cmwlth. 1984) (Board should decide case on the merits, without remand, where no proper cause for a remand.)
In this case, the reasoning in Sanders applies, despite the harsh result. If one assumes that claimant’s description of her efforts is accurate, the court held that she could have taken more reliable measures to ensure that she knew where she needed to be and how to get there. In this case, had she called the referee’s office and obtained information, she may have been able to avoid the mistake she made in her effort to appear at the hearing. Claimant did not take the necessary steps to protect her own interests. The Board did not abuse its discretion in denying claimant’s request to reopen the case and remand to the referee for additional testimony
