OPINION BY Judge BROBSON.
Presently before the Court is an appeal from a decision of the Unemployment Compensation Board of Review (Board), which ruled that Claimant Rex G. Bennett (Claimant) failed to take a timely appeal from the Altoona UC Service Center's (UC Center) Notice of Redetermination, Notice of Determination of Overpayment of Benefits, and Notice of Penalty Weeks Determination (collectively, "NOD").
(Emphasis in original.) On August 3, 2010, the Board issued a notice of hearing on Claimant's appeal from the NOD. (C.R. No. 5.) In that notice, the Board informed Claimant that the only issue to be addressed during the hearing was the timeliness of Claimant's appeal from the NOD: "NOTE: Testimony will be taken regarding the TIMELINESS of this appeal ONLY. If this appeal is found to be timely, another hearing will be scheduled to address the merits of the case."
The Referee held the scheduled hearing on August 16, 2010. Neither the Department of Labor & Industry (Department) nor Claimant's employer appeared for the hearing. Claimant, pro se, appeared and testified on his own behalf. Before Claimant testified, the Referee identified and admitted into the record ten (10) exhibits from the Board's record. The Referee also admitted as Referee Hearing Exhibit # 1 the hearing notice. (C.R. No. 6 (Notes of Testimony) at 2-3.) The Referee then directed Claimant to the NOD, with a mailing date of June 10, 2010, and an appeal deadline of June 25, 2010. She asked Claimant whether he recalled when he received the NOD. Claimant testified that he received the NOD on or about June 14 or 15, 2010. (Id. at 3.)
The Referee asked Claimant what he did upon receipt of the NOD. Claimant testified that on June 24, 2010, he appealed by e-mail. At this point, the Referee admitted into the record Exhibit C1, which the Referee identified as follows:
(Id. at 4.) Claimant testified that the e-mail marked as Exhibit C1 was to serve as his appeal from the NOD. (Id.)
Claimant testified that when, after three weeks passed, he had not received anything from the Board regarding his appeal, he sent another e-mail, including in the text of the new e-mail the text from the earlier June 24, 2010 e-mail. The new e-mail included an additional notation to the effect that Claimant had not yet received a hearing notice on his appeal and sought additional information regarding the status of his appeal. (Id.) At this point, the Referee admitted into the record Exhibit C2, which the Referee identified as follows:
(Id. at 4.) Claimant offered no further evidence and declined the Referee's invitation to make a closing statement. (Id.)
(C.R. No. 7 (emphasis added).) Based on these findings of fact, the Referee determined that Claimant's appeal was untimely under Section 501(e) of the Law,
The Board affirmed the Referee's determination, noting:
(C.R. No 9.)
On appeal to this Court,
As we recently noted in Wright v. Unemployment Compensation Board of Review, ___ A.3d ___, 2011 WL 6275956 (Pa.Cmwlth.2011) (en banc), the absence of an appeal document in the Board's record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed.
We reversed the Board, concluding that the Board had capriciously disregarded the uncontradicted evidence at the hearing before the referee. That evidence included
Like Wright, we are here faced with a situation where the claimant takes the position that he transmitted a timely appeal by electronic means and followed-up with a second transmission when he did not hear from the Board regarding his first transmission. Like the claimant in Wright, here Claimant offered testimony that, if found credible and persuasive, would establish that he sent an appeal of the NOD to the Board by electronic means before the expiration of the appeal deadline. Claimant also notes in his brief that he sent both his first, timely transmission (June 24, 2010) (Exhibit C1), and his second, follow-up transmission (July 21, 2010) (Exhibit C2) to the same email address— LI-UC-Appeals@state.pa.us, yet the Board inexplicably has only the follow-up transmission in its record.
Neither the Referee nor the Board addresses Claimant's testimony or supporting documents in their decisions. Instead, like the Board in Wright, they both appear to have ignored the hearing record and, instead, based their decisions solely on what was (and was not) in the Board's record prior to the hearing. This is particularly troubling here, where the Board's hearing notice expressly provided that purpose of the hearing was to take testimony on the issue of the timeliness of Claimant's appeal. We find that Claimant's testimony, if found credible and persuasive, and exhibits could support a finding that he filed a timely appeal by e-mail on June 24, 2010, notwithstanding the absence of that earlier e-mail appeal in the Board's record. Accordingly, the Board capriciously disregarded record evidence.
The Board argues that this case is controlled by our decision in Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286 (Pa. Cmwlth.2009). In that case, we affirmed the Board's dismissal of an appeal from a referee's decision as untimely. The claimant in Roman-Hutchinson attempted to appeal the referee's decision to the Board by e-mail. The Board conducted a hearing on timeliness. During the hearing, the claimant attempted to prove that she filed a timely appeal by e-mail on June 30, 2008, with evidence that she sent the e-mail appeal to the Board on that date. The Board considered the claimant's evidence and made specific findings, which we noted in our opinion:
Roman-Hutchinson, 972 A.2d at 1288. On appeal, Claimant did not refute the Board's factual finding that the Board did not receive the earlier e-mail appeal. Instead, she argued that there must have been a breakdown in the administrative process that caused the Board not to receive the e-mail appeal or, in the alternative, that nunc pro tunc relief was appropriate. Because Claimant premised both arguments on an alleged error in the e-mail system, we rejected both arguments based on the Department's regulation, 34 Pa.Code § 101.83(b)(4), which places on the claimant the risk that an appeal might not be received due to an error in transmission. Id. at 1288-89.
Roman-Hutchinson is distinguishable, procedurally and substantively, from this
Based on the foregoing, we vacate the Board's decision and remand the matter for the Board to consider the evidence of record put forth by Claimant to show that he filed a timely appeal by e-mail on June 24, 2010, and to make appropriate and necessary factual findings.
President Judge LEADBETTER dissents.
AND NOW, this 16th day of December, 2011, the order of the Unemployment Compensation Board of Review is hereby VACATED, and this matter is REMANDED to the Unemployment Compensation Board of Review for further proceedings consistent with the accompanying Opinion.
Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n. 4 (Pa.Cmwlth. 2007).
34 Pa.Code § 101.83(b)(4). With respect to appeals by fax transmission, the regulation expressly provides that an appeal is filed upon receipt by "the Department appeal office, workforce investment office or Board." 34 Pa.Code § 101.82(b)(3)(iii). Though the regulation does not contain express language to this effect with respect to appeals by e-mail, we interpret the above-quoted language as providing that an appeal by e-mail must, inter alia, be received by the filing deadline to be timely.