Walthour v. UCBR – Cmwlth. Court – May 12 2022 – reported, precedential
UCBR order reversed and case remanded where claimant was unanble to participate in phone hearing becaiuse of technical problems (blocked call issues) and referee’s failure tom make reasonable efforts to contact claimant..
The court followed its (unpublished) op8nion in O’Leary v. UCBR (Pa. Cmwlth., No. 984 C.D. 2020, filed October 27, 2021), where it noted that
the [Board] does not cite—and our own review of [the Board’s] regulations fails to find—any authority for the proposition that “[p]arties are responsible for their own technology and in charge of their phone and incoming calls,” let alone any regulation suggesting that technological difficulties of unknown cause can preclude a party from having his day in court. Even though an administrative tribunal has discretion over how to conduct a hearing, there are still “certain fundamental rights that must be honored, including the right to a fair hearing in accordance with due process of law.” Collins v. Unemployment Comp. Bd. of Rev., 415 A.2d 145, 146 (Pa. . . .. .While it [wa]s unclear here whether the problem was with [the c]laimant’s cell phone or otherwise, the Board’s policy which expects the average [UC] claimant to have a sophisticated understanding and proficiency in program[m]ing technological devices is patently unreasonable. [emphasis in original]
Generally, where a claimant has yet to testify regarding her failure to participate at a hearing, we would remand to the Board for it to make factual findings. However, in this case, the record before the Referee conclusively establishes that Claimant contacted the Referee prior to the conclusion of the hearing, asking why she had yet to receive a call. . . . It also establishes that the Referee did not attempt to contact Claimant, either through his office staff or the alternate phone number in his records. Instead, he faulted Claimant for having a phone that did not accept calls from blocked numbers and closed the record. As such, the evidence of record conclusively establishes that Claimant contacted the Referee’s office “in real time,” was apparently never informed that there was an issue with her phone, and, like the claimant in O’Leary, was improperly charged with being responsible for her own technology and in charge of her phone and any incoming calls.
Accordingly, for the above reasons, we vacate the Board’s order and remand this matter to the Board for it to hold a hearing and make findings of fact relative to (1) the timeliness of Claimant’s appeal to the Referee, (2) Claimant’s allegation that she did not receive the UC Service Center’s determination, and (3) whether Claimant’s allegation, if true, warrants nunc pro tunc relief, such that the Board must accept the untimely appeal and consider it on its merits.
