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 Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI 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 proceedings 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 Services (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 

instant 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 additions 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 

assessment. (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 granted 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,2Employer 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 correspondence 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 May 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 

2012). [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 June 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). Before 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 also Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 

1002 (Pa. Cmwlth. 2010). Because 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 hearing 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 Office’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 extend 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. 2015

:

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