Thursday, February 19, 2015

tax sale - partnership - notice to each partner/owner

Dwyer v. Luzerne Co. Tax Claim Bureau – Cmwlth.Court – February 17, 2015



Commonwealth Court affirmed lower court decision setting aside tax sale of partnership-owned property where Partner/Owner B signed for certified mail notice sent to Partner/Owner A – i.e., no notice delivered separately to non-signing partner A – and no evidence in the record of authority of one to sign for certified mail for the other.


The statutory notice provision of  the Law provides that the Bureau shall give notice of the sale “[a]t least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.” 72 P.S. §5860.602(e)(1).


 “Restricted delivery” is mail “delivered only to the addressee or the person he specifically authorizes in writing to receive his restricted delivery mail.” . . . Here, the receipt shows that the certified mail addressed to Owner A was signed for by Owner B. “Even when a return receipt is signed, the signature must belong to someone authorized by the owner to accept certified mail.” . . . .There is nothing in the record evidencing Owner B’s authority to sign for certified mail addressed to Owner A.


Because Owner A did not sign for the certified mail addressed to him, in accordance with section 607.1(a) of the Law, the Bureau was required to further investigate his whereabouts. Specifically, section 607.1(a) of the Law requires reasonable notification efforts when “mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee . . . .” 72 P.S. §5860.607a(a).


Here, the tax claim bureau conceded that although Owner A did not sign for the certified mail addressed to him, the Bureau did not make any effort to discover his whereabouts and notify him. Thus, the trial court properly concluded that the Bureau failed to comply with the Law’s notice provision.




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Wednesday, February 18, 2015

UC - willful misconduct - offensive language - de minimus conduct - provocation

Campbell v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion


One-time us of the word “bitch” toward a co-worker, in response to that employee’s threatening outburst, was de minimus and not disqualifying willful misconduct, even though use of abusive language violated ER rule.


Arnold v. UCBR, 703 A.2d 582 (Pa. Cmwlth. 1997),  “offensive language directed by an employee to an employer, if sufficiently provoked or de minimis, will not constitute willful misconduct.” Id. at 584.   Horace W. Longacre, Inc. v. UCBR, 316 A.2d 110 (Pa. Cmwlth. 1974), and Kowal v. UCBR, 512 A.2d 812 (Pa. Cmwlth. 1986).  Perez v. UCBR, 736 A.2d 737 (Pa. Cmwlth. 1999)





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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

UC - willful misconduct - fighting

Gallo v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion


Physical altercation at work not willful misconduct where

            * claimant acted in self-defense, after being pushed

            * claimant was furthering ER’s interests by giving foreman’s instructions to co-worker

            * incident lasted a matter of seconds

            * claimant’s actions were reasonable under the circumstances


The court noted that the UCBR failed to analyze the reasonableness of claimant’s actions, and that the facts found by the UCBR did not support findings that claimant escalated the fight.


“[F]ighting is considered inimical to the best interests of the employer and, as such, willful misconduct.” Rivera v. UCBR, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). However, “[w]here an employee’s conduct is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it is not a willful disregard of standards of behavior that an employer has a right to expect.” Miller v. UCBR, 83 A.3d 484, 488 (Pa. Cmwlth. 2014). An employee’s actions may be reasonable under the circumstances where that employee acts in self-defense in response to another employee’s physical aggression against him. See Mula v. UCBR, 407 A.2d 477, 477 (Pa. Cmwlth. 1979) (recognizing that an employee has a right to defend himself).  


Whether an employee’s actions are reasonable depends on the circumstances; our prior cases suggest such circumstances include the degree and duration of the employee’s actions. See Miller, 83 A.3d at 488 (holding that the claimant’s conduct was justified and reasonable where the entire physical altercation consisted of the other co-worker shoving the claimant and the claimant shoving the co-worker back); Peeples v. UCBR, 522 A.2d 680, 682-83 (Pa. Cmwlth. 1987) (holding that the claimant’s striking back at the employee who struck him was in self-defense, reasonable, and justified). Here, the circumstances suggest that Claimant’s actions were in self-defense and reasonable under the circumstances.


Monday, February 16, 2015

social security disability - a) lay testimony; b) hypothetical questions; c) conflict between VE testimony and DOTecurity disability

Zirnsak v. Colvin – 3d Cir. – December 9, 2014



The Third Circuit affirmed the denial of benefits.  The opinion was published on motion of the defendant.


Lay testimony properly discounted

An ALJ can consider evidence from non-medical sources to determine the severity of a claimant’s impairments and how those impairments impact the claimant’s ability to work. 20 C.F.R. § 404.1513(d) (2014). Non-medical sources include “spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy.” Id. § 404.1513(d)(4). The Commissioner has issued a policy interpretation ruling “to clarify how [to] consider opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006).


The ALJ’s reasons for rejecting the evidence are supported by substantial evidence, as the evidence did not relate to the narrow question presented to the ALJ: whether Zirnsak was disabled at any point between May 11, 2006 and December 31, 2007. We therefore defer to the ALJ’s credibility assessments. Diaz, 577 F.3d at 506.


The two Social Security Rulings relied on by Zirnsak are not designed to provide guidance for how to evaluate lay opinion testimony. The purpose of the first ruling cited, SSR 83-20, is to “describe the relevant evidence to be considered when establishing the onset date of disability,” not whether disability exists. SSR 83-20, 1983 WL 31249, at *1 (1983)


The second ruling cited by Zirnsak, SSR 96-7p, lists its purpose as “to clarify when the evaluation of symptoms, including pain, . . . requires a finding about the credibility of an individual [claimant’s] statements.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). Therefore, SSR 96-7p does not address lay witnesses’ accounts of the claimant’s symptoms, but rather the claimant’s description of her own pain. Id. Accordingly, the claimant’s arguments based upon these rulings and certain cases interpreting those rulings are inapposite.


Hypothetical question to VE not deficient

“Testimony of vocational experts in disability determination proceedings typically includes, and often centers upon, one or more hypothetical questions posed by the ALJ to the vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Usually, the ALJ will ask whether a hypothetical claimant with the same physical and mental impairments as the claimant can perform certain jobs that exist in the national economy. Id. The hypothetical must “accurately portray” any impairments of the claimant. Rutherford, 399 F.3d at 554. This Court has held that to accurately portray a claimant’s impairments, the ALJ must include all “credibly established limitations” in the hypothetical. Id. (citing Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999)).


This Circuit does “not require an ALJ to submit to the [VE] every impairment alleged by a claimant.” Rutherford, 399 F.3d at 554. Rather, the ALJ is only required to submit credibly established limitations. Id. Where, as here, a limitation is supported by some medical evidence but controverted by other evidence in the record, it is within the ALJ’s discretion whether to submit the limitation to the VE. Id. While the record in this case is not conclusive as to whether Zirnsak had short-term memory or task problem limitations, there is substantial evidence to support a finding that she did not—namely, her lack of demonstrated problems with activities of daily living and her ability to drive. The ALJ therefore appropriately exercised his discretion when determining which limitations to submit to the VE. In making credibility determinations like this one, this Court will “not substitute our own judgment for that of the fact finder.” Id. at 552. Accordingly, we find that the hypothetical question posed to the VE was not deficient for failure to fully reflect Zirnsak’s limitations.


Conflict between VE testimony and DOT

As a general rule, occupational evidence provided by a VE should be consistent with the occupational evidence presented in the DOT. Id. at *2. To ensure consistency, courts have imposed an obligation on ALJs to “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the [DOT].” Id. at *1; Rutherford, 399 F.3d at 556. Specifically, an ALJ is required to (1) ask, on the record, whether the VE’s testimony is consistent with the DOT, (2) “elicit a reasonable explanation” where an inconsistency does appear, and (3) explain in its decision “how the conflict was resolved.” Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002). An ALJ’s failure to comply with these requirements may warrant remand in a particular case. Rutherford, 399 F.3d at 557. However, this Circuit has emphasized that the presence of inconsistencies does not mandate remand, so long as “substantial evidence exists in other portions of the record that can form an appropriate basis to support the result.” Id. (citing Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir. 2004)).


There is a split of authority as to whether an inherent conflict exists between a job requiring level 3 reasoning and a finding that a claimant should be limited to simple, routine tasks and unskilled work.   E.g., Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009).  See,  Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011) VERSUS  Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011).


The review of the aforementioned cases demonstrates that there is no bright-line rule stating whether there is a per se conflict between a job that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine work. Without controlling precedent on this issue, this Court finds that the decisions in the Terry and Simpson cases are most applicable to the facts of Zirnsak’s case - any error stemming from an ALJ’s failure to ask about a conflict was harmless where the record established that the claimant in question could perform a level 3 reasoning job, despite a limitation to simple work.


Second, as in Terry and Simpson, Zirnsak’s counsel did not identify any inconsistencies between the VE’s testimony and the DOT at her hearing. (Tr. at 59). In fact, Zirnsak’s counsel did not question the VE regarding inconsistencies at all.  Finally, as in Simpson, the occupations listed by the VE were only “a couple examples” of jobs available to Zirnsak. ....Accordingly, the combination of these factors compels our finding that “any conflict [was] not so obvious that the ALJ should have pursued the question.”




This  summary is also posted at the PLAN Legal Update, which is searchable  and can be accessed without a password.


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Wednesday, January 28, 2015

UC - appeal - time - no postmark



Appeal dismissed as untimely where the


            - envelope was not postmarked


            - appeal was received at UCBR one day beyond appeal deadline.


Relevant statute is 43 PS sec.  821(e), which makes a determination final, unless an appeal is filed “within fifteen calendar days after” service of the notice of determination.   The relevant regulation, 34 Pa. Code 101.82(b)(1), makes the appeal date the date of receipt at the Board, if the appeal is filed by US Mail and the envelope does not bear any postmark.


The court said that it “appreciate[d] the logic of the Claimant’s argument”* that the appeal must have been mailed on or before the 15th day, since it was received by the UCBR on the 16th day, but that it had to follow the regulation, citing cases.   


* Cold comfort.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


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Thursday, January 22, 2015

UC - voluntary quit - loss of commuting benefit

Morgan v. UCBR – Cmwlth. Court (en banc, 5-2) – January 14, 2015



Claimant quit his job when his employer unilaterally and without warning took away his employer-provided transportation, which had a value of about $90 day, which was about ½ of claimant’s earnings.  


The Court affirmed the UCBR’s denial of benefits, holding that the claimant had not explored alternatives before quitting.  The Board also found that the claimant “could commute with the employer’s director,” as he had done when he had first started working.  This finding was based on testimony of the employer’s manager that the director “can give you a ride home, you can, you can figure out something else, but you’re just not going to do it on the company dime anymore.”  The Court found that “the Board could logically and reasonably infer that Manager’s statement that Claimant could get a ride home with Director was a suggestion to commute with Director.”    The court also upheld the Board finding that Claimant had not explored alternative solutions to the transportation problem and the loss of 50% of his earnings before quitting.



The dissent (Leavitt and Pelligrini) thought that the employer statement just concerned getting a ride home that single day, when claimant was at a work and was “deprived on the means to return home.  After that, Claimant had to ‘figure out something else’ without any financial support from Employer.”  A substantial reduction in pay constitutes a necessitous and compelling reason to leave employment and, thus, does not affect eligibility for unemployment compensation. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa. Cmwlth. 1995). “[W]here an employee benefit has special significance and intrinsic value to a claimant, an employer’s unilateral alteration of that benefit and corresponding reduction in compensation gives a claimant necessitous and compelling cause for terminating employment.” Id. Because there is “no talismanic percentage” for determining a substantial reduction, each case turns on its own circumstances. Id.


In Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624 A.2d 237, 238-39 (Pa. Cmwlth. 1993), six years after the claimant was hired, the employer notified her that it would no longer reimburse her health insurance premium of $235.16 per month. The loss of this reimbursement effected “a 14.2% reduction in earned compensation.” Id. at 240. We held that “the [e]mployer’s unilateral alteration of that benefit and corresponding reduction in compensation” constituted a necessitous and compelling reason to quit. Id. See also Chavez (Token) v. Unemployment Compensation Board of Review, 738 A.2d 77, 82 (Pa. Cmwlth. 1999); A-Positive, 654 A.2d at 302-03.


In this case, from the time of his initial hire in 2010 and throughout his employment Employer assumed the cost of Claimant’s commute. Claimant’s evidence established that the value of the Employer-provided vehicle, and reimbursement of fuel and tolls was approximately $90 per day.  Employer did not contest this figure. Claimant established that his gross salary at the time of his separation was $176 per eight-hour day.  On Claimant’s claimant’s last day of work, the employer unilaterally eliminated his commuting benefit without warning. Employer offered no evidence that the loss of Claimant’s benefit was negotiable or capable of revision.


Claimant was not obligated to continue working under Employer’s new terms. It is true, as the majority notes, that a claimant seeking to establish a necessitous and compelling reason for quitting must demonstrate, inter alia, that he made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). However, a unilateral reduction in compensation in and of itself provides a necessitous and compelling reason for quitting, if the reduction is substantial. See, e.g., Steinberg Vision Associates, 624 A.2d 237; Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376 (Pa. Cmwlth. 1981) (salary reduction of 25%); Ship Inn, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 913 (Pa. Cmwlth. 1980) (claimant’s $67.80 weekly salary reduced by $15). In these cases, this Court held that the claimants’ salary reductions were substantial and provided a necessitous and compelling cause to immediately quit. Claimant’s 50% reduction in compensation in the present case should compel the same result.


Friday, January 16, 2015

tax sale - statutory right to repayment agreement

Battisti v. Beaver Co. Tax Claim Bureau – Cmwlth. Court – December 1, 2014
Tax sale of $250,000 home for $234.72 tax delinquency overturned, because of
            - a violation of the tax sale law, obliging the TCB to affirmatively offer an installment repayment plan to a taxpayer who has paid 25% of the amount due, 72 PS 5860.603, as the homeowner did here, and
            - a violation due process, because the TCB repeatedly sent inaccurate and misleading notices to homeowner, and failed to tell her about the installment option, Darden v. Montgomery Co. TCB, 629 A.2d 321 (Pa. Cmwlth. 1993).
The purpose of the Real Estate Tax Sale Law is to ensure the collection of taxes, not to deprive citizens of their property or to create investment opportunities for those who attend tax sales. . . . . People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. . . . .
The focus in a case like this is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the Bureau comply with the requirements of the statute.  Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth. 2003). A failure by a tax claim bureau to comply with each and every statutory requirement will nullify a sale.
Section 603 of the Real Estate Tax Sale Law provides that a scheduled tax sale may be stopped by the taxpayer’s payment of 25% of the amount of taxes due and agreement to an installment plan for the remainder.   So long as said agreement is being fully complied with by the taxpayer, the sale of the property covered by the agreement shall be stayed. 72 P.S. §5860.603. The tax claim bureau must advise the taxpayer of the Section 603 option because its failure to do so “would deprive the owner of his or her property without due process of law.”
Stated otherwise, it is not the taxpayer’s burden to request an installment agreement.  The obligation of a tax claim bureau to notify a taxpayer of the right to an installment plan upon receipt of at least 25% of what is owed has been recently reviewed and underscored.  Where an owner has paid at least 25% of the taxes due, the tax authority is required to inform the owner of the option to enter into an installment agreement and that a failure to do so is a violation of the owner’s due process rights. Reilly v. Susquehanna Cnty. Tax Claim Bureau, 904 A.2d 49, 53 (Pa. Cmwlth. 2006); York v. Roach, 163 Pa. Cmwlth. 58, 61-62, 639 A.2d 1291 (1994); Darden v. Montgomery Cnty. Tax Claim Bureau, 157 Pa. Cmwlth. 357, 629 A.2d 321, 323-24 (1993).
Moreover, due process requires meaningful notice of a tax liability.  Here there was a multitude of inaccurate and conflicting notices.
Earlier in the case, the Cmwlth. Court reversed the trial court's grant of judgment on the pleadings to the TCB, holding that an evidentiary hearing was required under the tax sale law, Battisti v. TCB, 76 A.3d 111 (Pa. Cmwlth. 2013).

Sunday, January 04, 2015

tax sales - documentation required of efforts to give notice

Appeal of Tufarolo – Cmwlth. Court – December 31, 2014 – unreported memorandum decision

Tax sale of residential property overturned because of failure of county tax claim bureau to document  its efforts to give notice to property owner, as required by 72 P.S. sec. 5860.607a, even though tht TCB did comply with the statutory notice requirements.  The statute states that "a notation shall be placed in the oroperty file describing the efforts made [to serve notice of the tax sale] and the results thereof…."  It was undisputed the such notations were not made.

"Accurate documentation is essential to inform anyone reviewing the rile about the Bureau's complaint, or lack thereof.  The public is entitled to rely on the correctness and completeness of the Bureau's property files.  The Bureau’s failure to document its additional notification efforts in the property file, regardless of their success, constitutes grounds to set aside the sale of the Property. Our precedent requires strict construction of Section 607.1, compelling a taxing bureau’s adherence. Steinbacher v. Northumberland Cnty. Tax Claim Bureau, 996 A.2d 1095 (Pa. Cmwlth. 2010) (en banc); Rice v. Compro Distrib., Inc., 901 A.2d 570, 577 (Pa. Cmwlth. 2006); Smith v. Tax Claim Bureau of Pike Cnty., 834 A.2d 1247, 1253 (Pa. Cmwlth. 2003) (citing Tracy v. Chester Cnty. Tax Claim Bureau, 489 A.2d 1334, 1339 (Pa. 1985)).


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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.