IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica M. Tice, :

Petitioner :

:

v. : No. 177 C .D. 20 1 8

: Submitted: June 29 , 20 1 8 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: July 23, 2018

Erica M. Tice (Claimant) petitions for review of the Unemployment

Compens ation Board of Review ’s (Board) decision finding that she did not have a

good reason for her nonappearance at the Referee’ s hearing and finding that she

was ineligible for unemployment compensation (UC) benefits because she was

terminated for wil lful misco nduct under Section 402(e) of the Unemployment

Compensation Law (Law). 1 On appeal, C laimant asserts only one issue

– that the

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §

802(e) . Section 402(e) provides that an employee is ineligible for benefits for any week:

In which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his (Footnote continued on next page...)2

Board erred in finding that her failure to attend the hearing due to the post office’s

late delivery of her mail did not constitu te proper cause . For the following reasons,

we affirm.

Claimant was previously employed by Keystone Clippers, LLC

(Employer) as a part

- time stylist, averaging 15 ho urs per week at $9.00 per hour.

In April 2017, she received multiple write

- ups for her f ailure to follow company

policy. On April 22 and 23, 2017, sh e was written up for tardiness . On May 8,

2017, Claimant reported to work more than 30 minutes late. On May 9, 2017, s h e

was terminated for tardiness after having already received a warning.

Claimant filed fo r UC benefits with the Erie UC Service Center

,
which granted benefits

. Employer appealed

, and a hearing was scheduled before a

Referee on July 7, 2017. On June 23, 2017 , notice of the hearing was mailed to

Claimant at her address, 87 Pa sadena Street, Pittsburgh, P ennsylvania, 15211.

At the hearing , two witnesses appeared on behalf of Employer but

Claimant did not appear

. Shannon Noyes (Noyes)

, Employer ’s area manager who

oversaw Claimant’s work

, stated with regard to Claimant’s perfor mance:

This was her kind of second chance with us. She was employed with us and let go from our Rexford [sic]

(continued...)

work, irrespective of whether or not such work is “empl oyment” as

defined in this act

.3 location, and that was a month before she came to our Oakwood location. She pretty much didn’t show up for her shifts there, she just stopped s howing up and she didn’t call or let us know what was going on and then a few days later her mom contacted the manager and let her know that she was unable to work for anxiety reasons

and she was under treatment for that. Then she reached out to us, she s aid that she took care of herself, she was okay. In her time there, tho ugh , she, we were having issues with her following dress code, coming to work on time. There was money that was missing out of Team members’ purses when it was just [sic] and them

wor king. So the possible fact that we suspected, we worked all that out with her when she reapplied and let her know, like, if anything, she has to follow our policies, this is her last chance. When she came back, she called

off . . . she did no call no sho w for a shift, she was also tardy for several shifts. She would leave the store without the management’s permission, whether to smoke or to get food, without permission from her manager, and

those would be on small 4 hour shifts. She came to work

a few t imes unable to perform her job. She said that she took anxiety medicine and she took a little bit too much of it a couple of the times, she said. So, we had to, you know, deal with that. Clients complained saying she was unprofessional with them, stylis ts were starting to feel uncomfortable working with her. And then also, just like in her previous location, she would not follow the dress code, [the store manager] would have to talk to her numerous times. Letting her know that you are not wearing our u niform, you need to be wearing black athletic pants and your vest and she would just come in wearing, like, sweat pants and a t

- shirt. So, she just wasn’t following the policies and procedures and we
talked numerous times, let her know, she has been

throu gh the handbook, she knew what she was expected [to do] and she just wasn’t willing to do it.

(Record (R.) Item No. 8, Referee’s Hearing: Transcript of Testimony w/ Employer

Exhibits, 7/7/2017, pp. 3

– 4.) Based on the evidence presented by Employer, t he4

Referee denied benefits, finding that Claimant had been terminated for willful

misconduct.

Claimant appealed to the Board

, alleging that she had not received

notification of the hearing and requesting a remand

. Under Section 101.51 of the

Board’s pro cedural rules:

If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause , the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent

available reco rds. The tribunal may take such other action as may be deeme d appropriate.

34 Pa. Code § 101.51 . (Emphasis added

. ) In such an event, t he Board may choose

to remand the matter to the Referee to hold a hearing in order to determi ne whether

the c laimant had proper cause for failing to appear, and , in the event proper cause

is found, to consider additional substantive evidence

. Here, the Board found that a

further hearing was proper and remanded the matter to the Referee to receive

testimony and evidence on Claimant’s reason for her nonappearance.

At the remand hearing, Claimant testified that she received mail at her

current mail ing address, 87 Pasadena Street . When asked if she had any problems

with her mail delivery, she responded:

Not normally I do n’t. But sometimes you know, I’ll get mail like days later. The mail that I received for this [hearing] I was not expecting at all. So, whenever I did receive it, it was already past the [hearing] date.5

(R. Item No. 14, Board’s Hearing: Transcript of Testimony w/ Board Exhibits,

10/3/2017, p. 3.) When asked to clarify what pot entially caused the delay in

receipt of her mail, Claimant responded:

I

– it was around the 4 th of July, so I don’t know if that’s what delayed it, but all of my mail that I was

– was supposed to receive, I didn’t e nd up getting until after this [h] earing was already held.

( Id. ) Claimant testified that despite the fact that the notification for the July 7,

2017 hearing was mailed to her on June 23, 2017

, she did not actually r eceive it

until July 21, 2017

, well after the hearing occurred.

Finding Claimant’ s testimony about her alleged mail problems not

credible, t he Board found that Claimant did not have a good reason for her

nonappearance at the July 7, 2017 hearing and affi rmed the Referee’s decision

.

T his petition for review followed.

In her brief, Claimant does not address the underlying issue of

whether there was s ubstantial evidence to support the Board’s finding that she was

terminated for willful misconduct . Rather

, the sole issue she raises is that the

Board erred in finding that she did not have good cause for her nonappearance. 2

2 This Court’s scope o f review is limited to determining whether co nstitutional rights

were violated, whether an error of law was committed

, or whether necessary findings of fact are
supported by substantial competent evidence. Philadelphia Gas Works v. Unemployment
Compensation Board of Review , 671 A.2d 264 (Pa. Cmwlth. 1996).

(Footnote continued on next page...)6 A claimant asserting non

- receipt of mail must overcome the

presumption created by the common law mailbox rule. Douglas v. Unemployment

Compensation Board of Review , 151 A.3d 1188 , 1191 (Pa. Cmwlth. 2016). The

mailbox rule provides that the depositing of a pr operly addressed letter with

prepaid postage in the post office raises a presumption that the letter reached its

destination by due course of mail. Dull v. Unemployment Compensation Board of

Review , 955 A.2d 1077 , 1079 (Pa. Cmwlth. 2008). In this matter, the only

evidence Claimant offered that she did not receive notice was her own testimony,

which the Board did not find to be credi ble.

The Board may either accept or reject a witness’s testimony whether

or not it is corroborated by other evidence of record. Chapman v. Unemployment

Compensation Board of Review , 20 A.3d 603, 607 (Pa. Cmwlth. 2011 ). Because

the Board is the ultimate fact finder and determiner of credibility, those

determinations are not subject to judicial review. McCarthy v. Unemployment

Compensation Board of Review , 829 A.2d 1266 (Pa. Cmwlth. 2003).

(continued...)

On appeal, Claimant attempts to argue that she can provide a letter stating that for safety
purposes, the United States Postal Service will no longer deliver mail to her address until she
makes certain repair s to her steps, as well as a picture of said steps. However, none of this

ev idence was presented at the rema nd hearing ; rather , the only evidence Claimant presented
regarding her absence was her own testimony that she did not receive notice until July 21, 2017.
Furthermore, at the hearing, Cl aimant testified that she still recei ved mail at her address and she
normally did not have problems with receiving mail. Because this additional evidence that

Claimant references in her brief wa s not part of the reco rd before the Board, Claimant may not

a ttempt to present this evidence now. See Pennsylvania Turnpike Commission v. Unemployment
Compensation Board of Review , 991 A.2d 971 (Pa. Cmwlth. 2009) (holding that this Court may
not consider any evidence that is not part of the certified record on appe al).7 Because this Court may not review the Board’s credibility

determ inations and the Board determined that Claimant’s testimony was not

credible, there is no evidence to support a finding that Claimant had good cause to

miss the hearing before the Referee

, and the Board did not err in refusing to

consider substantive evide nce as to the cause of Claimant’s termination.

Accordingly , we affirm.

__________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica M. Tice, :

Petitioner :

:

v. : No. 177 C .D. 201 8

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 23 rd day of July , 2018, the order of the

Unemployment Com pensation Board of Review in the above

- captioned matter is

affirmed.

_______________ ___________________ DAN PELLEGRINI, Senior Judge