Sunday, March 22, 2015

UC - voluntary quit - firm offer of new job


Geraci v. UCBR – Cmwlth. Court – March 20, 2015 – unreported memorandum opinion - can be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 


 

Claimant who quit job to train for potential job held not eligible, since he had no firm offer of employment.

 

The court has consistently held that a firm offer of employment and its acceptance constitutes a necessitous and compelling cause for quitting. Solar Innovations, 38 A.3d at 1056. “‘The offer of employment . . . must be definite’ . . . and ‘the claimant must act prudently with regard to his employer.’” Id. (citations omitted). However, we have also “consistently held that the mere possibility of obtaining another job, without a firm offer of employment, is insufficient to establish that employment was terminated for good cause.” Fernacz v. UCBR, 545 A.2d 995, 997 (Pa. Cmwlth. 1988).

 

As a matter of law, acceptance of a job that is contingent upon successful completion of a training program for only the prospect of better employment, as is the case here, does not constitute the requisite necessitous and compelling cause to qualify for UC benefits under the Law. See Fernacz, 545 A.2d at 997. “[A]lthough ‘the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting.’” Solar Innovations, 38 A.3d at 1057 (citation omitted).

 

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This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

Friday, March 20, 2015

UC - self-employment not established


Isett v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished  memorandum opinion

 


 

Court held that the claimant was not self-employe and thus continued to be eligible for UC benefits.

 

Claimant got benefits after being laid off from work when he returned after a disability leave.   Both before and after his leave and layoff, claimant has done yard work for a neighboring child care center.   Claimant was initially granted benefits, but the employer appealed and the referee and UCBR held that his occasional work for the child care center made him self-employed, ineligible for benefits, and subject to a non-fault overpayment.  The Court reversed.

 

Burden of proof on DOLI

Where the Bureau initiates proceedings that result in a suspension of benefits based on self-employment, as is the case herein, it is the Bureau, and not the putative employer, who carries the burden of proof. Silver v. UCBR, 34 A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). In such proceedings, where the claimant is already receiving unemployment compensation benefits, the question is not whether the work at issue would entitle the claimant to benefits, but whether the work at issue disqualifies the claimant from further receipt of benefits he is already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth. 2012) (emphasis added).

 

Self-employment

Pursuant to Section 402(h), a claimant is ineligible for unemployment benefits in any week “[i]n which he is engaged in self-employment.” While the

term “self-employment” is not defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines “employment,” in pertinent part, as:

 

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that—(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.

 

43 P.S. § 753(l)(2)(B). This court has consistently held that before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).

 

Claimant not engaged in self-employment

It is clear that Claimant was not customarily engaged in an independently established trade, occupation or business.  He had cut the child care center law for years as a neighbor and that he approached them to cut the lawn in order to rehabilitate his knee. Claimant testified: He “was kind of feeling guilty to even get paid for [his services] but [he] was trying to get a little bit of therapy for medical problem [knee .  He thought by performing the services, this is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas or supplies, and used tools he acquired over the years from being in the construction business when needed. Claimant testified that he never looked for other mowing or landscaping jobs, never invested any money, did not advertise or put out fliers, and did not try to solicit customers by word-of-mouth. He testified: “My intention wasn’t to go into business, my intention was to get [himself] a little bit in better physical shape and help out a little bit.”  Claimant testified that he was available for full-time employment and continued to look for work while he performed services for Tiny Treasures and that the fact that he made an inquiry to obtain a quote for liability insurance, in and of itself, is insufficient as a matter of law to support the finding that he was customarily engaged in an independent trade, occupation, profession or business.   The Court agreed.

 

The evidence shows that Claimant did not advertise in any way, did not seek other customers, did not invest any money nor purchase any equipment or supplies. Claimant dutifully reported the sums he receive to the Bureau, consistent with the Bureau’s own instructions in the regulations. Moreover, even where an activity which generates a limited amount of income was not undertaken while the claimant was still employed, such activity does not automatically make it disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). Claimant testified that the money he received for mowing was not enough to either support himself or cover the cost of insurance, and that it was never his intention to go into business for himself and that he continued to look for full time employment.

 

The evidence establishes only that Claimant’s work for the child care agency was on the side to make extra money and not that of an individual customarily engaged in a trade, occupation, profession or business. The Court has long recognized the ability of an individual to accept occasional assignments of work. Thus, “the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business” that would disqualify him from receiving unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

 

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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.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

Tuesday, March 17, 2015

UC - willful misconduct - burden of proof - claimant testimony - duty of referee


Wagner v. UCBR – Cmwlth.  Court – March 11, 2015

 


 

This claimant was hoisted by his own petard.  

 

The employer did not appear at the hearing, at which the issue was willful misconduct.  Claimant did appear and testified.  Some of the testimony was elicited by the referee’s questions to claimant.

 

The court rejected Claimant’s argument that the Referee should have adjourned the hearing when Employer failed to appear and granted him unemployment compensation. Claimant’s argument misconstrues both the assignment of the burden of proof and the role of the Referee under the Law.  A referee is charged with informing the parties of their rights, the procedure to be followed, and with developing an adequate record, which includes clearly establishing the allegations made and the facts at issue to insure that compensation is paid in instances where a claimant is eligible and that it is not paid where a claimant is ineligible under the Law. Bennett v. UCBR, 445 A.2d 258, 259 (Pa. 1982); 1982); Hackler v. UCBR, 24 A.3d 1112, 1116 (Pa. Cmwth. 2011); Robinson v. UCBR, 431 A.2d 378, 379 (Pa. Cmwlth. 1981); see also 34 Pa. Code § 101.21.

 

The referee is not required to “advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.” Brennan v. UCBR, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (internal citations omitted).   In unemployment compensation matters, “the assignment of the burden of proof to one or the other party can only be understood as an indication of the quantum of evidence required to sustain a result in a party’s favor. The question of the sufficiency of the evidence must be examined against the complete record. The effect of the claimant’s testimony remains the same whether presented before or after an employer’s.” Vann v. UCBR, 494 A.2d at 1081, 1085 (Pa. 1985). As this Court and our Supreme Court have repeatedly made clear, the referee is not there to act as an advocate for the claimant and “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Id. at 1086 (quoting Groch v. UCBR, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).

 

A claimant’s admissions are sufficient to carry an employer’s burden. Sargent v. UCBR, 630 A.2d 534, 537 (Pa. Cmwlth. 1993) (“Employer in this case did not present any evidence. Claimant, however, chose to testify and [our] Supreme Court has made it clear that in such a situation a claimant’s own testimony can be a basis to deny benefits.”); Robinson, 431 A.2d at 379 (“[claimant] himself admitted that he neither reported to work as instructed on October 22 nor notified his employer of the reason for his absence. It is, therefore readily apparent that claimant is guilty of willful misconduct and that his employer has met its burden in that regard.”); Rodgers v. UCBR, 397 A.2d 1286, 1288 (Pa. Cmwlth. 1979) (holding that the claimant’s own testimony carried the employer’s burden of proof).

 

The evidence supporting the Board’s findings of fact consists of documents submitted into the record by both Claimant and Employer, and testimony offered by Claimant at the continued hearing and at the remand hearing. Contrary to Claimant’s contention, Employer was not required to offer testimony in order to carry its burden under the Law. Claimant had an opportunity to object to the documentary evidence submitted by Employer and declined to do so.

 

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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.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

 

 

Monday, March 16, 2015

UC - 43 P.S. 829 - no collateral estoppel use of UC decision in later/separate case


Mathis v. Christian Plumbing and Heating – ED Pa. – March 21, 2015

 


 

Plaintiff was not collaterally estopped by an adverse result in a UC case, Mathis v. UCBR, 64 A.3d 293 (Pa. Cmwlth. 2013), from suing former employer under Title VII of the Civil Rights Act and the Pa. Human Relations Act for improperly terminating his employment because of Plaintiff’s covering his work i.d. badge, which included language that the company is a “ministry” and run “in a way most pleasing to the lord...”

 

 The court held that the clear language of 43 P.S. sec. 829 precluded the application of collateral estoppel.  Sec. 829 states that “[n]o finding of fact or law, judgment, conclusion or final order made with respect to a claim for unemployment compensation under this act may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.”

 

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If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

UC - willful misconduct - use of work phone/computer for personal business


Oyetayo v. UCBR – March 4, 2015 – Cmwlth. Court

 


 

Claimant disqualified for willful misconduct and violation of employer rule against person use of work telephone and computer (email), after having receiving two prior warnings about zero tolerance policy.

 

De minimis rule not applicable after warning about strict enforcement.

While an employee at Employer would normally be permitted to engage in the occasional use of his work computer for personal email, Claimant was not a normal employee; instead the Board found that Claimant had been issued written warnings that directed him not to engage in any unauthorized use of Employer’s resources for personal reasons. Claimant’s argument that his personal email use fell within the de minimis exception therefore fails because Employer had advised Claimant that his prior personal use of Employer’s resources had exceeded what was allowed and any future use would be seen as a violation of Employer’s rules.

 

Doing personal things at work

There is no question that Claimant’s conduct was not merely negligent but rather of an intentional and deliberate nature. Grieb v. UCBR, 827 A.2d 422, 426 (Pa. 2003).   Moreover, this Court has on numerous occasions determined that a claimant’s use of work time to engage in personal affairs without authorization was willful misconduct even where not prohibited by a specific work rule because it was contrary to reasonable standards of behavior that an employer can expect from its employees. See, e.g., Pettyjohn v. UCBR, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (holding that access of internet for personal reasons  during working hours after being advised not to constituted willful misconduct); Baldauf v. Unemployment Compensation Board of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004) (holding that the claimant engaged in willful misconduct by accessing personal email and non-work related websites while being paid to work); Wetzel v. UCBR, 370 A.2d 415, 417 (Pa. Cmwlth. 1977) (holding that the claimant, whose employment was terminated for crocheting at work despite several warnings not to do so, had engaged in willful misconduct). Furthermore, “[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in...cases where...the employee has been warned and/or reprimanded for prior similar conduct.” Ellis v. UCBR, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) ....Accordingly, because Claimant knowingly violated Employer’s work rule and because Claimant has not put forward any argument that he had good cause for violating the work rule, we hold that the Board did not err in concluding that Claimant was ineligible for benefits due to willful misconduct.

 

No duty to provide copy of record absent request by Claimant

Claimant cites no authority which imposes an affirmative duty on the Board to send a claimant a copy of the record at the same time as it is sent to this Court.  Instead, the applicable Board regulations provide that “[i]n the event of an appeal from the decision of the Board to the Commonwealth Court, a party may request a transcribed copy of the record of the testimony, and it shall be furnished without charge.” 34 Pa. Code § 101.71 (emphasis added). The Board’s regulations further provide that: When an interested party or his representative requests information from the file of the Board in order to present and maintain the issues...in an appeal to the Court, such information (including the hearing transcript, where the record has been transcribed) shall be made available at a reasonable time to the party and his representative, without charge,...for examination, copying and making notations therefrom.

34 Pa. Code § 101.54(b) (emphasis added). As there is no allegation that either Claimant or his attorney requested a copy of the record from the Board and the Board denied such a request, the Board did not act inappropriately or deny Claimant his due process rights by failing to send Claimant a copy of the certified record.

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This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

tax sale - disputed facts - right to hearing - Battisti v. Tax Claim Bureau


Estate of Filchner – Cmwlth. Court – March 9, 2015

 


 

Following its decision in Battisti v. Tax Claim Bureau, 76 A.3d 111 (Pa. Cmwlth. 2013), the court held that where a petition to set aside a tax sale raises disputed issues of fact, the court must hold a hearing and take evidence, rather than summarily resolving the facts on its own.

 

In granting a party’s motion for judgment on the pleadings, the trial court denied Taxpayer’s objections without an evidentiary hearing, and thereby denied Taxpayer due process. Battisti, 76 A.3d at 116.  Due process under the United States and Pennsylvania Constitutions must be satisfied whenever the government subjects a citizen’s property to forfeiture for nonpayment of taxes. Geier v. Tax Claim Bureau of Schuylkill County, 588 A.2d 480 (Pa. 1991). Once Taxpayer presents a prima facie challenge to the tax sale, the burden shifts to the Tax Claim Bureau to prove strict compliance with the notice provisions of the RETSL. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289-90 (Pa. Cmwlth. 1996). Where there is a factual dispute, a taxpayer is entitled to an evidentiary hearing and remanded the case to the trial court.

 

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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.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

Wednesday, March 11, 2015

Therapeutic support services - medical necessity standard


C.M. v. DPW – Cmwlth. Court – March 11, 2015 – unreported memorandum decision

 


 

TSS services are medical services administered by the Department, not educational services subject to administration by the State Board of Education or the Department of Education and governed by regulations promulgated pursuant to the IDEA. Therefore, the provision of TSS services is subject to the medical necessity standard established in relation to the MAP program rather than the IDEA’s least restrictive environment standard.

 

__________________

 

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

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

Tuesday, March 10, 2015

UC - willful misconduct - ER-claimant agreement not an admission of wrongful conduct


Bennett v. UCBR – Cmwlth. Court – March 4, 2015 – memorandum opinion – not reported

 


 

Private agreement between employer and claimant to change job termination to 12-day suspension is not an admission of the conduct that resulted in the suspension.  It is merely a settlement between the parties.  Without the agreement being admitted into evidence and without testimony regarding the content of the agreement, the UCBR cannot assume that claimant admitted violating the employer’s rules.   There was no testimony or other evidence in the record to support a finding that the agreement constituted an admission of employer rules.

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If this case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

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

 

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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If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

 

 

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