IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip M. Mayo t/d/b/a Mayo’s : Classic Catering, :

Petitioner :

:

v. : No. 1256 C.D. 2015

: Submitted: December 18, 2015 Department of Labor and Industry, : Office of Unemployment : Compensation Tax Services, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge 1

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRIN I FILED: January 6, 2016

Philip M. Mayo t/d/b/a Mayo’s Classic Catering (Employer or Mayo)

petitions for review of an order of the Unemployment Compensation Tax Review

Office (Review Office) dismissing Employer’s petition for reassessment (petition)

and discontinuing all related p roceedings because it abandoned its appeal. For the

reasons that follow, we vacate the Review Office’s order and remand for further

proceedings.

1 This matter was assigned to this panel before January 1, 2016, when President Judge

Pellegrini assumed the status of senior judge.2 I.

In July 2014, Employer received a notice of assessment from the Office

of Unemployment Compensation Tax S ervices (OUCTS) which it timely appealed to

the Review Office. By letter dated November 21, 2014, the Review Office advised

the parties:

It has been determined that the distribution of

proposed exhibits is likely to benefit the proceedings in the

instan t matter.

Accordingly, the Parties are hereby directed to exchange exhibits, in accordance with the enclosed instructions, no later than January 2, 2015.

* * *

As a reminder, each Party must serve upon the other Party a copy of any objections or addit ions filed with the Presiding Officer, as required by the General Rules of

Administrative Practice and Procedure (GRAPP), 1 Pa. Code §§ 33.32

– .37. The filing to this office should include certification that a copy also was served upon the other Party.

* * *

Petitioner, who bears the burden in this proceeding, also is hereby notified that failure to comply with the exhibit exchange, as set forth in this letter and the accompanying instructions, will be considered

disinterest [ sic ] in the matter, and will result in the dismissal of the petition for failure to pursue.

(Certified Record, Letter from the UC Tax Review Office to the Parties (November

21, 2014), at 2) (emphasis in original).3

By letter dated December 31, 2014, Employer’s counsel advised the

Review Office that Employer “wants to comply fully with the Office’s request for the

production of documents” but that it could not determine which documents were

relevant until the OUCTS provided further information regarding how it arrived at its

assessm ent. (Certified Record, Letter from Employer’s Counsel to the UC Tax

Review Office (December 31, 2014.))

Subsequently, the Review Office directed the OUCTS to provide certain

information, including the actual amount of purported wages paid by Employer for

the 2012 tax year and the names of the recipients of those wages, no later than

February 25, 2015. The OUCTS complied, after which the Review Office directed

Employer to exchange its exhibits no later than March 30, 2015. The Review Office

then grant ed Employer’s request for an extension of time to allow Employer to gather

the documents from its accountant and directed Employer to exchange the subject

exhibits no later than April 30, 2015. By letter bearing a mailing date of April 30,

2015, Employer requested a second extension, advising that its accountant located the

subject documents but needed to retrieve them from storage and

, therefore

, requested

an extension until May 31, 2015.

Although the Review Board granted an extension until June 1, 2015 , by

order dated June 15, 2015, it explained that Employer failed to provide the requested

documentation and thereby “effectively abandoned the appeal by [its] failure to

respond.” (6/15/15 Order of the Secretary of Labor and Industry.) As such,

Employer ’s petition was dismissed and all associated proceedings were discontinued.4 II.

On appeal, 2 Employer contends that it complied with the Review

Board’s order and submitted its exhibits by letter dated June 1, 2015, despite the fact

that this corresponden ce does not appear in the certified record. In support of its

argument, Employer relies upon a letter dated June 1, 2015, which it included in its

reproduced record and which states:

In accordance with your office’s letters dated
November 21, 2014 and M ay 6, 2015, respectively, in the

above

- captioned matter, enclosed please find true and correct copies of the exhibits [Mayo] intends to introduce, being [Mayo] 1 ([Mayo]’s Form 1096 for 2012), and [Mayo] 2 (Form 1099s issued by [Mayo] to his workers for

20 12). [Mayo] reserves the right to supplement [its] exhibits, should the need arise....

(Reproduced Record [R.R

. ] at 9a.)

Conversely, the Review Office argues that it never received the letter

and

, because it is not contained in the certified record, it may not be considered by

this Court on appeal. As such, the Review Office suggests that the certified record

offers substantial support for its finding that Employer failed to comply with the

Review Office’s directive to exchange exhibits on or before Jun e 1, 2015.

2 The Court’s review is limited to determining whether the Review Office’s findings of fact

are supported by substantial evidence, whether constitutional rights were violated, or whether errors

of law were committed. Showers v. Unemployment Compensation Board of Review , 64 A.3d 1143,

1146 n. 4 (Pa. Cmwlth. 2013).5

Importantly, the June 15 , 2015 deadline established by the Review

Office was not jurisdictional; rather, it was a scheduling deadline akin to a pre

- trial

order regarding the date by which exhibits had to be exchanged. Moreover, the

absence of a document in the certified record “creates, at best, an inference” that the

agency did not receive the document and

, therefore, that it was not filed. Bennett v.

Unemployment Compensation Board of Review , 33 A.3d 133, 137 (Pa. Cmwlth.

2011) ( en banc )

. B efore an agency may dismiss an appeal for a party’s lack of failure

to timely file a document, an appellant should be provided an opportunity at a hearing

to establish the timeliness of its filing notwithstanding its absence in the record. Id

. ;

see als o Russo v. Unemployment Compensation Board of Review , 13 A.3d 1000

,

1002 (Pa. Cmwlth. 2010). Be cause Employer’s exhibit and position, if found

credible and persuasive, could support a finding that it timely complied with the

Review Office’s directive, a h earing must be held to make that determination. This is

particularly true where, as here, even if the alleged deficiency does exist, it does not

deprive the Review Office of its jurisdiction over Employer’s appeal. 3

Accordingly, we vacate the Review Off ice’s order and remand this

matter to the Review Office to hold a hearing to determine, as a matter of fact,

whether Employer complied with its previous directive.

DAN PELLEGRINI, President Judge

3 Unlike statutory appeal periods which may not be extended as a matter of grace or mere

indulgence, Russo , 13 A.3d at 1003, the Review Office was clearly capable of extending and

, in

fact

, did exten d the deadlines governing the exchange of exhibits.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip M. Mayo t/d/b/a Mayo's : Classic Catering, :

Petitioner :

:

v. : No. 1256 C.D. 20 15

: Department of Labor and Industry, : Office of Unemployment : Compensation Tax Services, :

Respondent :

O R D E R

AND NOW, this 6 th day of January , 2016, we vacate the order of the

Department of Labor and Industry, Unemployment Compensation Tax Review Office

in the above

- captioned matter and remand this case for further proceedings consistent

with the foregoing opinion.

Jurisdiction is relinquished.

DAN PELLEGRINI, President Judge