IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica M. Tice, :

Petitioner :

:

v. : No. 177 C.D. 2018

: Submitted: June 29, 2018

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 

Compensation 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 willful misconduct under Section 402(e) of the Unemployment 

Compensation Law (Law).1 On appeal, Claimant 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 constitute proper cause. For the following reasons, 

we affirm.

Claimant was previously employed by Keystone Clippers, LLC

(Employer) as a part-time stylist, averaging 15 hours per week at $9.00 per hour. 

In April 2017, she received multiple write-ups for her failure to follow company 

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

2017, Claimant reported to work more than 30 minutes late. On May 9, 2017, she 

was terminated for tardiness after having already received a warning.

Claimant filed for 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 Pasadena Street, Pittsburgh, Pennsylvania, 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 performance:

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 “employment” 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 showing 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 said that she took care of herself, she was 

okay. In her time there, though, 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 

working. 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 show 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 times 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, stylists 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 uniform, 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 

through 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, the 
4

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 procedural 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 records. The tribunal may take such other 

action as may be deemed appropriate.

34 Pa. Code § 101.51. (Emphasis added.) In such an event, the Board may choose 

to remand the matter to the Referee to hold a hearing in order to determine whether 

the claimant 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 mailing address, 87 Pasadena Street. When asked if she had any problems 

with her mail delivery, she responded:

Not normally I don’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 potentially caused the delay in 

receipt of her mail, Claimant responded:

I – it was around the 4th 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 end 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 receive it 

until July 21, 2017, well after the hearing occurred.

Finding Claimant’s testimony about her alleged mail problems not 

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

nonappearance at the July 7, 2017 hearing and affirmed the Referee’s decision. 

This petition for review followed.

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

whether there was substantial 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 of review is limited to determining whether constitutional 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 properly 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 credible.

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 repairs to her steps, as well as a picture of said steps. However, none of this 

evidence was presented at the remand 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, Claimant testified that she still received mail at her address and she 

normally did not have problems with receiving mail. Because this additional evidence that 

Claimant references in her brief was not part of the record before the Board, Claimant may not 

attempt 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 appeal).
7

Because this Court may not review the Board’s credibility 

determinations 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 evidence as to the cause of Claimant’s termination.

Accordingly, we affirm.

__________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erica M. Tice, :

Petitioner :

:

v. : No. 177 C.D. 2018

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

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

Unemployment Compensation Board of Review in the above-captioned matter is 

affirmed.

__________________________________

DAN PELLEGRINI, Senior Judge