Tuesday, January 08, 2019

UC - appeal - capricious disregard of competent, relevant evidence


Jamie One, LLC v. UCBR – Cmwlth. Court – January 4, 2019 – unreported** memorandum opinion

The court rejected the employer’s appeal and upheld the grant of benefits.  In the course of its opinion, not otherwise of special value, the court discussed the argument that the Board capriciously disregarded competent, relevant evidence in reaching its decision.  The court discussed this as follows:

Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the fact finder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored evidence without comment. Wise v. UCBR, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Id

Here is the relevant discussion from Wise v.  UCBR – 111 A. 3d 1256, 1262-3 (Pa. Cmwlth. 2015)
A capricious disregard of evidence occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result. Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa.Cmwlth.2014). The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an "appropriate component of appellate consideration in every case in which such question is properly before the court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478, 487 (2002). In Wintermyer, the Supreme Court noted that where there is substantial evidence to support the agency's factual findings and those findings support the legal conclusions, "it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard." Id. at 487 n. 14. The standard 1263*1263 announced in Wintermyer applies whether one or both parties present evidence and, thus, overruled this Court's earlier-announced paradigm that appellate review for capricious disregard of evidence was limited to the circumstance where the burdened party was the only party to present evidence and did not prevail. See, e.g., Lautek Corporation v. Unemployment Compensation Board of Review, 138 Pa. Cmwlth. 547, 588 A.2d 1007, 1010 (1991).
Disturbing an agency's adjudication for a capricious disregard of evidence is appropriate only where the fact-finder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment. Hinkle v. City of Philadelphia,881 A.2d 22, 27 (Pa.Cmwlth.2005). In Hinkle, this Court, citing Wintermyer,explained that:
"Capricious disregard" then is just another name for the agency abusing its discretion and is an error of law when the agency fails to give an indication that it has examined countervailing substantive testimony that had to be considered at arriving at its decision.
The capricious disregard standard then is nothing more than a shorthand way of referring to an amalgam of existing overlapping legal and constitutional standards mentioned above that safeguard against arbitrariness by state and local administrative agencies by requiring a meaningful explanation of why the losing party's overwhelming evidence was not accepted.
Id. (footnote omitted). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Spencer, 97 A.3d at 842 (Pa.Cmwlth.2014) (citing Wintermyer, 812 A.2d at 487-88).

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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716




UC - willful misconduct - claimant did not violate employer rule on "weapons"


Cambria County Transit Authority v. UCBR – Cmwlth. Court – January 8, 2019 – reported opinion


Held: Claimant did not violate employer rule concerning “weapons” by picking up a knife in the employee lounge and putting it right back down.  Board found that claimant did not threaten anyone and that the knife had been in lounge for years and had been used for preparing and cutting food, and the like.  Employer’s HR manager admitted that, in the absence of a threat, possession of a metal knife in the employee’s lounge was not a violation of Employer’s policies.

Monday, November 26, 2018

employment - employee information - employer duty to protect - damages


Dittman v. UPMC – Pa. Supreme Court – November 21, 2018

Held:

[A]n employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.

Under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract.

Monday, November 19, 2018

mootness


Clean Air Council v. County of Allegheny – Cmwlth. Court – November 19, 2018 – unreported* memorandum opinion

This case is not of interest as far as substance, but it has the following discussion of the doctrine of mootness.


The mootness doctrine requires an actual case or controversy to exist at all stages. It is a well-established principle of law that this Court will not decide moot questions. The articulation of the mootness doctrine . . . was acknowledged in . . . In re Gross, . . . 382 A.2d 116 ([Pa.] 1978) as follows: The problems arise from events occurring after the lawsuit has gotten under way-changes in the facts or in the law-which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that ‘an actual controversy must be extant at all stages of review. . . .’ G. Gunther, Constitutional Law 1578 (9th ed. 1975). [In re Gross], 382 A.2d at 119.

An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991). Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011). Further, [the Pennsylvania Supreme] Court has repeatedly recognized two exceptions to the mootness doctrine: (1) for matters of great public importance and (2) for matters capable of repetition, which are likely to elude review.

Moreover, we have found this exception applicable where a case involves an issue that is important to the public interest or where a party will suffer some detriment without a court decision.   Pilchesky v. Lackawanna Cty., 88 A.3d 954, 964-65 (Pa. 2014) (citation omitted).
                                                              
Under the mootness doctrine, ‘an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ Pub. Defender’s Office of Venango [Cty.] v. Venango [Cty.] Court of Common Pleas, . . . 893 A.2d 1275, 1279 ([Pa.] 2006) [(quoting Pap’s A.M. v. City of Erie, . . . 812 A.2d 591, 599-600 ([Pa.] 2002))]. The existence of a case or controversy requires ‘a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication. . . .’ City of Phila[.] v. [Se. Pa. Transp. Auth.], 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007). Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010). Further, [i]t is well settled that the courts ‘do not render decisions in the abstract or offer purely advisory opinions.’ Pittsburgh Palisades Park, LLC v. Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005). Judicial intervention ‘is appropriate only where the underlying controversy is real and concrete, rather than abstract.’ City of Phila[.] v. Commonwealth, . . . 838 A.2d 566, 577 ([Pa.] 2003). Harris, 982 A.2d at 1035. “The key inquiry in determining whether a case is moot is whether the court or agency will be able to grant effective relief and whether the litigant has been deprived of the necessary stake in the outcome of the litigation.” Consol Pa. Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28, 39 (Pa. Cmwlth. 2015)

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b)

Thursday, November 01, 2018

UC - appeal - waiver of issue - UCBR argument held to be "sophistry"


Patnesky v. UCBR – Cmwlth. Court (2-1) – unreported* memorandum decision

The Court held that the employer failed to prove willful misconduct of a state driver’s license examiner who issued a replacement ID card for the “incapacitated” child of a co-worker.   The Court said that the claimant’s conduct did not violate a work rule, which it found to be ambiguous, thus resulting, at worst, in an inadvertest or negligent violation of the rule rather than the required deliberate violation.   It is well established that noncompliance with a work rule in itself does not amount to a “deliberate violation.” Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct.”).   

UCBR argument that claimant had waived an issue was held to be “sophistry.”
The more significant part of the opinion  rejected the Board’s position that claimant had waived an argument. 

At the outset, we address the Board’s waiver argument, which it makes in virtually every brief it files with this Court. The Board asserts that because the statement of questions in Claimant’s brief raises only the issue of whether Claimant committed disqualifying willful misconduct under Section 402(e) of the Law, Claimant cannot challenge the Referee’s “findings of fact,” which in this case include a statement that Claimant violated Employer’s confidentiality policy because [the incapacitated child] “was not present during the transaction.” . . . .Finding of Fact No. 6.   

By couching the legal conclusion that Claimant violated the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts that the ultimate legal issue in this case is beyond appellate review. This is sophistry.

Whether Claimant’s actions constituted disqualifying willful misconduct is a question of law fully reviewable by this Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding that legal issue, this Court must determine whether Claimant’s actions.  violated Employer’s policy as was concluded by the Board. We reject the Board’s waiver argument and proceed to the merits of Claimant’s appeal.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

Friday, October 19, 2018

UC - fair hearing - unrepresented party - duty of referee to assist - "full and fair hearing"


Scott v. UCBR – Cmwlth. Court – October 19, 2018 – unreported* memorandum opinion

Held:  Case remanded because claimant was not afforded a “full and fair hearing.”   The referee “precluded claimant from introducing potentially relevant evidence that would support his claim that he was discharged” rather than had quit his job.  The referee “could have taken a few minutes to review the additional documents [that] Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the claims [that] Claimatn sought to introduce, before precluding the evidence.”

Admission of evidence
In UC proceedings, the Referee has “wide latitude” regarding the admission of evidence. Creason v. UCBR, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). However, the Referee “is not free to disregard rules of evidence and if evidence is not relevant[,] the [R]eferee may exclude it.” Id. Despite this broad discretion, the Referee “may not improperly refuse to accept relevant competent and material evidence.” Healey v. UCBR, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).

Duty to assist pro se claimant
The [R]eferee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to “insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.” The [R]eferee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982); see also 34 Pa. Code § 101.21(a).  While the Referee is not obligated to advocate on behalf of a pro se claimant, see Stugart v. UCBR, 85 A.3d 606, 609 (Pa. Cmwlth.  2014), the Referee is required to reasonably assist a pro se claimant in developing the necessary facts.

In this case, a key issue before the Referee was whether Claimant was discharged from his employment or whether he voluntarily quit.   Rather than assist Claimant, however, the Referee precluded Claimant from introducing potentially relevant evidence that would support his claim that he was discharged.   Because the Referee excluded both the missing Service Center documents and the emails, we do not know the extent of any overlap between the documents and the emails or whether any of that evidence was relevant to the issues before the Referee. The Referee could have taken a few minutes to review the additional documents Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the emails Claimant sought to introduce before precluding the evidence. Because the Referee 9 failed to take these steps, we conclude that she did not “act reasonably in assisting in the development of the necessary facts.” Hackler v. UCBR, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).
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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716


Sunday, October 07, 2018

courts - jurisdiction - foreign corporation - registration in Pa. - consent


Murray v. American Lafrance, LLC – Pa. Super. – reported, published – September 25, 2018
majority        


Held:  A corporation consents to jurisdiction of Pennsylvania courts when it registers as a foreign corporation under 42 Pa. C.S. 5301 (a) (2) (i-iii).

From the opinion

We observe that whether a foreign corporation consents to general personal jurisdiction in Pennsylvania by registering to do business in the Commonwealth is a matter of first impression in this Court. Our review of the caselaw has revealed that neither this Court nor our Supreme Court has had the occasion to determine whether, post-Daimler, registering to do business as a foreign corporation in the Commonwealth constitutes consent for the purposes of exercising general personal jurisdiction. However, Bors v.  Johnson & Johnson, 208 F. Supp. 3d 648 (E.D. Pa. 2016), provides a persuasive, well-reasoned analysis and we cite it with approval.

In Bors, supra, the district court considered whether Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler eliminated consent by registration under section 5301 as a basis for jurisdiction. See Bors, supra at 653-54. The Bors court reasoned that “Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business[,]” and concluded that “[c]onsent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler.” Id. at 655; see also Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *4 (E.D. Pa. filed June 13, 2017) (“conclud[ing] that, by registering to do business under § 5301, Smitty’s consented to general personal jurisdiction in Pennsylvania and that its consent is still valid under Goodyear [Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011),] and Daimler.”).

In this case, Appellee registered as a foreign corporation to do business in Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so, we hold that it consented to general personal jurisdiction in Pennsylvania. See Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640. Therefore, based on the relevant caselaw, and the language of section 5301(a), we conclude that the trial court erred when it dismissed these actions for lack of personal jurisdiction.8 Accordingly, we vacate the orders sustaining the preliminary objections, and remand these cases to the trial court.



Tuesday, October 02, 2018

debt collection - FDCPA -false, misleading - statement about IRS


Schultz v. Midland Credit Management – 3d Cir.- September 24, 2018


A statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. , particularly the threat to take any action that cannot legally be taken or that is not intended to be taken. . . . The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. §§ 1692e(5), (10).

Whether a collection letter is “false, deceptive, or misleading” under § 1692e is determined from the perspective of the “least sophisticated debtor.” Brown, 464 F.3d at 453.

Here, the reporting requirement under the Internal Revenue Code is wholly inapplicable to the Schultzes’ debts because none of them totaled $600 or more, and IRS regulations clearly state that only discharges of debt of $600 or more “must” be included on a Form 1099-C and filed with the IRS. See 26 C.F.R. § 1.6050P-1(a).   By including the reporting language on collection letters addressing debts of less than $600, we believe that the least sophisticated debtor might be persuaded into thinking that the discharge of any portion of their debt, regardless of amount discharged, may be reportable.

Based on the foregoing, we will reverse the May 8, 2017, Order of the District Court as we find that the Schultzes have pled sufficient factual allegations that state a plausible claim upon which a court may grant relief under the FDCPA. We will therefore remand for further proceedings consistent with this opinion.
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