Wednesday, May 20, 2015

admin. law - due process - notice of adjudication and of right to appeal

Uzarski v. State Police – Cmwlth. Court – May 19, 2015



Civilian employee of State Police was entitled to due process protections (notice, opportunity to be heard, etc.) in 2 Pa. C.S. 501 et seq., before state employer could hold her financially responsible for lost/damaged state property.


Neither of two internal memos from one of the employee’s supervisors to another met the minimum due process requirements under the law.   Neither was served on Petitioner, nor did either advise her of any right to appeal.   There was no indication on either memo (the latter of which was an “adjudication”) that the aggrieved person was even copied or that either was a final administrative decision on the matter.   Accordingly, in the absence of service on Petitioner and, therefore, adequate notice of the decision, and the complete lack of any notice regarding her right to appeal, the memo simply was insufficient to trigger a thirty-day limit within which to file a petition for review.


Section 504 of the Law, 2 Pa. C.S. 504, in pertinent part, provides that: “No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. . . .” 2 Pa. C.S. § 504 (emphasis added).  Moreover, in Holloway v. Lehman, 671 A.2d 1179, 1181 (Pa. Cmwlth. 1996), this Court noted that, “[w]hat process is due, at a minimum, to one who has lost property via the action of a Pennsylvania State agency or Commonwealth official is addressed in the [Administrative Agency Law].”  That process includes, at a minimum, an opportunity to be heard, to have testimony be recorded, to have a full and complete record of the proceedings be kept, the right to examine and cross-examine witnesses and a written adjudication with findings and reasons for the decision.   





Consumer Protection - standard of proof

Boehm v. Riversource Life Insurance – Pa. Super – May 19, 2015



Fraudulent misrepresentation case in connection with the sale of life insurance policies.  Jury found in favor of defendant on common law fraud claim, but court found for plaintiffs in the amount of $295,305.78, including attorneys’ fees and costs.  The Superior Court affirmed.


Liberal construction

1994). “The UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices.” Wallace v. Pastore, 742 A.2d 1090, 1092, 1093 (Pa.Super. 1999), appeal denied, 764 A.2d 1071 (Pa. 2000), citing Hodges v. Rodriguez, 645 A.2d 1340 (Pa.Super. 1994 “In addition, the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Id. (citations omitted). “The UTPCPL’s ‘underlying foundation is fraud prevention.’” Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001), quoting Commonwealth v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa. 1974).


Standard of proof

Trial court’s use of preponderance standard of proof affirmed.  In the predominant number of civil cases, where only economic and property interests are at stake, the evidentiary burden requires only proof by a preponderance of the evidence. Section 201-9.2 of the UTPCPL, providing for private actions, does not set forth which standard of proof applies, and apparently the matter has never been decided by the Pennsylvania appellate courts. There is no language anywhere in the UTPCPL suggesting that private actions brought pursuant to Section 201-9.2 should be governed by a more demanding standard of proof than proof by a preponderance of the evidence. Moreover, the preponderance of the evidence standard of proof, which is the standard usually applied to remedial legislation, is consistent with the UTPCPL’s purpose of protecting the public from fraud and unfair or deceptive business practices.  The court relied heavily on and quoted liberally from Judge Wettick’s opinion in eck v. Metropolitan Life, 2006 WL 634564 (CCP Allegheny 2006) and cited supporting case law from other states.


Parol evidence – Toy case

The court held that the parol evidence rule did not bar proof of the insurance agents’ misrepresentations, which were alleged to be fraud in the execution of the contract rather than fraud in the inducement.  Toy v. Metropolitan Life, 928 A.2d 186 (Pa. 2007).  The trial court found the the plaintiff’s reliance on the misrepresenations was justifiable and that plaintiff was credible



Thursday, May 14, 2015

UC - continuances

Magio v. UCBR – Cmwlth. Court  - MAY 14, 2015 – unreported memorandum decision



Held: Last minute request for continuance denied.


The UC regs, 34 Pa. Code §101.23(a) allows a continuance “only for proper cause and upon the terms as the tribunal may consider proper.” A claimant who desires a continuance due to his inability to attend a hearing has a duty to “immediately request a continuance in writing before the hearing.” Flores v. UCBR, 686 A.2d 66, 76 (Pa. Cmwlth. 1996) (citation omitted). The UC Regulations further provides that, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence.” 34 Pa. Code at §101.51.


In Cowfer v. UCBR, 534 A.2d 560, 562 (Pa. Cmwlth. 1987), we noted that “last-minute requests for continuances will not be viewed favorably by this Court.” Moreover, in Skowronek, 921 A.2d at 558, we reasoned that “[i]f counsel was unavailable due to a previously scheduled appointment, there is no explanation as to why the request was not made prior to 6:30 p.m. on the last business day before the hearing.” Even the four notices of hearing sent to Claimant advised: “If you cannot attend the hearing for any reason, you may request a continuance (postponement) of the hearing. You should do this as soon as possible.” (Notices of Hearing, 2/20/2014, at 3, C.R. Item No. 8.) (emphasis added).


In this case, not only was the continuance request filed shortly before the scheduled hearing, the reason given for the request was not because of an emergency or unexpected event. Instead, Claimant’s counsel stated that he could not attend because he was traveling abroad. Generally, such travel requires advance planning and counsel would know that he would be unavailable on the hearing date and should have requested a continuance much earlier, given that notices for the hearing were sent well in advance.


Given that the request for a continuance was received less than an hour before the scheduled time and was not because of an unexpected event, the Referee did not abuse his discretion in denying the continuance, and absent an abuse of discretion, we will not override a referee’s denial of a continuance. Steadwell v. UCBR, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983).




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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UC - independent contractor

Checkum v. UCBR – May 14, 2015 – Cmwlth. Court – unreported memorandum opinion



Held : There is no evidence that Claimant was customarily engaged in an independently established trade, occupation, profession or business.  UCBR reversed.


Section 4(l)(2)(B),  43 P.S. § 753(l)(2)(B) (relating to self-employment), provides a two-prong test for determining whether an individual is an independent contractor or an employee. Kurbatov v. Dept. of Labor & Indus., 29 A.3d 66 (Pa. Cmwlth. 2011). It states in pertinent part:


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 and 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)


The purpose of this section “is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Whether a claimant is an employee or an independent contractor under Section 4(l)(2)(B) is a question of law subject to our review. Stauffer v. UCBR, 74 A.3d 398 (Pa. Cmwlth. 2013).


An individual receiving wages for his services is presumed to be an employee. Thomas Edison State Coll. v. UCBR, 980 A.2d 736 (Pa. Cmwlth. 2009). Employer alone bears the heavy burden of overcoming the presumption of employment. Kurbatov.




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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taxpayer standing

Keith et al. v. Commonwealth, Dept. of Agriculture – May 13, 2015 – Commonwealth Court



Taxpayersheld to have had standing to challenge the Department of Agricultures exemption of nursing mothers from the statutory ban on metal strand flooring and from the statutory requirement of unfettered access to exercise areas.


Taxpayers had standing under  In re Application of Biester, 409 A.2d 848, 852 (Pa. 1979).  Under Biester, taxpayers, even ones not personally aggrieved, may challenge a governmental action provided that they satisfy the following requirements: (1) the governmental action would otherwise go unchallenged, (2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action, (3) judicial relief is appropriate, (4) redress through other channels is unavailable, and (5) no other persons are better situated to assert the claim. Flora v. Luzerne Cty., 103 A.3d 125, 132 (Pa. Cmwlth. 2014) (emphasis added). The Department asserts that Petitioners are unable to satisfy the second and fifth Biester factors.


The purpose underlying Biester’s relaxation of the general rules regarding standing and their requirement of a substantial, direct, and immediate interest in the matter, is to enable citizens to challenge governmental action which would otherwise go unchallenged in the courts. Faden v. Phila. Hous. Auth., 227 A.2d 619, 621-22 (Pa. 1967). Taxpayer standing “allows the courts, within the framework of traditional notions of ‘standing,’ to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts.” Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 661-662 (Pa. 2005) (quoting Biester, 409 A.2d at 851 n.5).




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Friday, May 01, 2015

disability - incomplete hypo to VE not harnless error - remand

Salmela v. Colvin – ED Pa. –  April 30, 2015



ALJ failed to present the VE with a hypothetical question that completely presented Mr. Salmela’s limitations.  Case remanded for further proceedings.


In questioning a vocational expert, the Third Circuit has held “in the clearest of terms” that a hypothetical question must include all of a claimant’s impairments that are supported by the record.....If the hypothetical does not include all of the claimant’s substantiated impairments, “the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Id.


Therefore, courts in this Circuit have repeatedly found that a failure to include limitations in mental functioning in a hypothetical question posed to a vocational expert calls for remand....., 2015) (remanding because the failure of the ALJ to include moderate limitations in social functioning in the hypothetical question posed to the vocational expert rendered the question “‘deficient,’” such that it could not “‘be considered substantial evidence’” and was not harmless error) (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)); Pounds v. Colvin, Civil Action No. 13-440, 2014 WL 3845728, at *4-6 (W.D. Pa. Aug. 4, 2014) (remanding and holding that including a limitation on plaintiff’s interaction with the general public was insufficient to account for moderate limitations in social functioning); Seagraves v. Colvin, CA No. 13-718, 2014 WL 657549, at *2 (W.D. Pa. Feb. 20, 2014) (remanding for the ALJ to either explain the omission of plaintiff’s moderate limitations in social functioning from the description of plaintiff’s residual functional capacity/hypothetical question or to obtain vocational expert testimony in response to a complete and accurate hypothetical); Debias v. Astrue, Civil Action No. 11-3545, 2012 WL 2120451, at *5-6 (E.D. Pa. June 12, 2012) (finding the vocational expert’s testimony “inherently flawed” because of a failure to include moderate limitations in social functioning and remanding “so the ALJ can provide an accurate hypothetical that includes Plaintiff’s moderate social function impairment”); Lam v. Astrue, Civil Action No. 09-4331, 2011 WL 1884006, at *14 (E.D. Pa. Mar. 31, 2011) (“Until the ALJ forecloses the possibility that the VE could have changed his testimony if the ALJ had included limitations pertinent to the ALJ’s own finding of ‘moderate’ limitations in social functioning, the VE’s answer to the hypothetical as posed cannot be said to constitute substantial evidence upon which the ALJ can properly rely.”).


Here, the ALJ clearly found that Mr. Salmela had moderate limitations in social functioning, but failed to include those limitations in her description of Mr. Salmela’s residual functional capacity or in her hypothetical question to the vocational expert. Because the ALJ did not explain her failure to include Mr. Salmela’s moderate limitations in social functioning at these later stages in the analysis, the Court may not speculate now as to her potential reasons for doing so. Thus, given that it is impossible to tell whether the omission was intentional, the Court must turn to the more difficult question of whether the omission, intentional or not, was harmless.


Wednesday, April 29, 2015

custody - trial court order not reasonable in light of its factual findings

WF v. MG – Superior Court – April 29, 2015





Father appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. primary custody of the parties’ two-year old daughter (“Child”), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand.


Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties’ briefs, the record, and the lower court opinions, we conclude that the court’s determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2104) (this Court may reject trial court’s conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).


The trial court found that although “when considering the mandatory factors, the findings of fact favor Father more than Mother.... However, since Father has not been the primary custodian to date, and his complaint for custody did not request primary custody, a change in primary custody would be disruptive for thechild, particularly because it would mean placement in child care rather than with a family member...”  What the trial failled to consider was the fact that “Father has not been primary custodian to date is, first, a function of Mother’s unilateral unreasonable decisions, and second, not a basis for denying him primary custody where all factors point otherwise. 


In addition, the court’s findings do not point to the conclusion that both Mother and Father are equally fit to act as primary custodian. The court expressed its concerns about Mother’s allegations of abuse by Father, as well as her “rigid” parenting style, which obscured a “wholesome, rational approached to child-rearing.”  The court contrasted Mother’s parenting style with Father’s, characterizing Father’s as “more natural.”


In determining Child’s best interests, the court’s consideration of the statutory factors weighed heavily in favor of granting Father primary custody. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (when trial court orders form of custody, best interest of child is paramount). Where a court makes findings consistently in favor of custody in one party, and then awards custody to the other party, it must provide valid reasoning to support that decision. Especially with respect to Mother’s allegations of abuse, which the court specifically found not credible, we cannot, in good  conscience, sanction this unexplained about-face. Although the court’s findings are supported in the record, its conclusions are unreasonable in light

of these findings. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014). Because the majority of the statutory best interest factors favor Father, we conclude that the court’s order was not based on a reasoned consideration of those factors.



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welfare - Kinship Care Program - eligibility for reimbursement

J.V. and R.V. v. DPW – Cmwlth. Court – April 29, 2015 – unreported memorandum opinion



Grandparents who took formal but voluntary custody of grandchildren,without any involvement of CYS, were not entitled to benefits under the Kinship Care Program to reimburse them for the care of their grandchildren.


The Kinship Care Program is intended to encourage family members to become involved in those instances “when it is necessary to remove a child from the child’s home.”  62 P.S. §1301.  County CYS agencies are required to notify grandparents and other adult relatives “of a dependent child within 30 days of the child’s removal from the child’s home when temporary legal and physical custody has been transferred to the county agency.”  62 P.S. §1303(a) (emphasis added). This transfer of custody may occur through a judicial adjudication of dependency under the Juvenile Act, 42 Pa. C.S. §6351, or by a voluntary placement agreement between the parents and the county child welfare agency under 55 Pa. Code §3130.65.  The county agency must take custody if it determines that grounds for dependency exist. See Children, Youth and Families Bulletin 00-03-03, “Kinship Care Policy,” July 28, 2003.  Relatives who accept placement of children through the county children and youth services agency are eligible for the payments that are available to all foster parents.  62 P.S. §1303(c)(1)(i).


Grandparents’ efforts have been laudable. The purpose of the Kinship Care Program is to encourage what Grandparents did. However, until they satisfy the regulations that apply to foster parents, they are not eligible for kinship care payments.   For these reasons, we are constrained to affirm the order of the Bureau.




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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UC - willful misconduct - employer rule on off-duty misconduct - mistaken advice of union not "good cause"

Rothstein v. UCBR   - Cmwlth. Court – February 11, 2015 – ordered to be reported 4-29-2015





Held: Claimant committed willful misconduct by violating an employer rule requiring him to report certain off-duty misconduct, to wit, criminal arrests or convictions.  In this case, claimant, whose job required him to enter customers’ homes, had been arrested for, charged with and convicted of indecent exposure.


Misconduct was proven even though there was no evidence about the underlying acts, since “the very nature of the charges” could affect claimant’s ability to do his job. 


The fact that claimant’s union advised him not to report his arrest did not establish “good cause” for not complying with the employer rule.   The union had no responsibility under the employer rule.  Cf. Link v. UCBR, 446 A.2d 999 (Pa. Cmwlth. 1982).   The rule put the responsibility to report on the individual employee.  “Violating the policy by following the poor advice from the union does not relieve an employee of the consequences of his violation, nor provide just cause for the violation.”




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


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Monday, April 27, 2015

consumer - UTPCPL suit v. bank - expired SOL - default judgment v. bank - motion to open denied

Gorden v. Discover Bank – ED Pa. – April 8, 2015



Consumer/debtor sued Bank after credit Bank’s credit card case against her was dismissed on statute-of-limitations grounds.  Bank failed to answer the complaint and a default judgment was entered.  Bank sought to have the judgment opened, claiming that it never got the complaint. 


The court rejected the bank’s motion, noting that the “Complaint was served at an Ohio address from which Discover initiates most, if not all, of its collection actions nationwide, including the underlying suit that was brought against Plaintiff here. Although the record unambiguously confirms delivery to that address, Discover maintains that it never received the Complaint, and further contends that, although it operates its credit card and other lending businesses nationwide, it only “does business” from a single branch location in Greenville, Delaware.


The court stated that it was “satisfied that service here met the requirements of Ohio law, and the requirements of due process, and see no purpose to be served in requiring a consumer to navigate a labyrinth of complex corporate agreements as a prerequisite to filing a countersuit alleging improper debt collection practices. Accordingly, the Motion to Vacate will be denied.”


Saturday, April 25, 2015

UC - appeal - preservation of issues - waiver - Merida v. UCBR not applicable

TIMI Plastics v. UCBR – Cmwlth. Court – March 30, 2015 – reported memorandum opinion

The court rejected the employer’s argument that the claimant waived consideration of the relevant issue – willful misconduct, for alleged refusal of the claimant, a truck driver, to follow an employer order to make a delivery run – because claimant’s petition appeal to the Board lacked specificity, as required by Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1998), appeal dismissed as improvidently granted, 570 A.2d 1320 (Pa. 1990).   In his petition to the Board, claimant wrote, in full:  “Layer (sic) didn’t do his job. Need to cross-examine ex-employer – Brad Aronson and Joe Benjeman (sic) to prove their statements are wrong and misleading.”  

The court rejected this argument because the referee did consider and rule on the issue, as did the Board, all pursuant to UC regs.   “Merida does not apply here. That case is limited to its factual scenario where the claimant did not specifically raise before the Board an issue that was not discussed by the referee in his decision.”  (emphasis in original).  

Here, as in Black Lick Trucking, Inc. v. UCBR, 667 A.2d 454 (Pa. Cmwlth. 1995),, the issue before the Service Center was whether Claimant was discharged for willful misconduct because he did not agree to drive to New Jersey on August 27, 2013. The referee considered this very issue and determined that Claimant’s conduct amounted to willful misconduct. Pursuant to Board regulation 101.107(b), 35 Pa.Code §101.107(b),  the Board was required to consider whether Claimant was discharged for willful misconduct for his failure to drive on a particular assignment, regardless of whether Claimant’s Petition for Appeal to the Board specified this issue. The Board did precisely what it was required to do. There was no waiver.”

Appeals from a referee’s decision to the Board are governed by the Board’s regulations. Board regulation 101.81 (governing appeals from the Department) and 101.102 (governing appeals from referee to the Board) 34 Pa.Code §§101.81 and 101.102, indicate only that a party must set forth its “reasons for appeal,” without further elaboration as to the detail required to satisfy this condition.

 Further, Board regulation 101.87, 34 Pa.Code §101.87, states, in part:

When an appeal is taken from a decision of the Department [job center], the Department [job center] shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeals the tribunal [referee] shall consider the issues expressly ruled upon the decision form which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard.

 Board regulation 101.107(b), 35 Pa.Code §101.107(b), provides in part:

The Board shall consider the issues expressly ruled upon in the decision [of the referee] from which the appeal was filed.

This Court has interpreted these sections to mean that whatever issues the job center addressed, the referee should likewise address, and the Board, in turn, should decide all of the issues the referee considered, regardless of whether a party specifically raised the issue on appeal to the Board. See Jordan v. UCBR, 547 A.2d 811 (Pa. Cmwlth. 1988).
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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Friday, April 24, 2015

admin. law - telephone hearings

Long v. Board of Prof. and Occup. Affairs – Cmwlth. Court – March 30, 2015



Former podiatrist sought reinstatement of his license.  Board denied his motion to have 6 witnesses testify by telephone as to his good character and rehabilitation.  The Court upheld the denial of the motion, citing “valid concerns” about e.g. “the difficulty in evaluating the demeanor of witnesses over the telephone” and “the “absence of established procedures for taking such testimony.”  Here is its discussion of the issue.


In its opposition to the motion below, the Commonwealth cited our decision in Knisley v. UCBR, 501 A.2d 1180 (Pa. Cmwlth. 1985), wherein we held that the Unemployment Compensation Board of Review was not authorized to hold telephonic hearings over the objection of a litigant in the absence of regulations that provided safeguards to assure fair, impartial hearings. Id. at 1182. Petitioner argues on appeal that Knisley was decided solely based on a lack of regulations regarding telephonic testimony, a defect which was cured by subsequent Department of Labor and Industry regulations which provide safeguards to the parties’ due process rights and assure the uniform application of such rules. 34 Pa. Code §§ 101.127–101.133. The Board argues that the hearing officer appropriately denied the motion under Knisley.


Though we need not decide whether Knisley controls our decision here, the concerns raised in that decision regarding telephonic testimony, including witnesses fraudulently misrepresenting their identities or referring to documents that had not been admitted into evidence, are equally applicable here and were appropriate considerations for the hearing officer. Unlike in the unemployment compensation context, the Board has not enacted regulations relating to when telephonic testimony may be permitted and the procedure to take such testimony. Similarly, the General Rules of Administrative Practice and Procedure, which are also applicable here, lack regulations concerning telephonic testimony. Furthermore, the hearing officer may also have appropriately considered the difficulty in evaluating the demeanor of witnesses over the telephone. Thus, in light of the valid concerns in conducting telephonic testimony and in the absence of established procedures for taking such testimony, we conclude that the hearing officer did not abuse her discretion in denying Petitioner’s motion.5



The court also noted (in n. 5) that the petitioner


did not articulate in the motion any compelling reason why it was impracticable for the six witnesses to attend the hearing; instead he simply stated that the witnesses lived in Western Pennsylvania and requested that they be allowed to testify by telephone. (R.R. at 8.) Petitioner had recourse to other avenues for procuring the witnesses’ testimony, including by seeking a subpoena to compel their attendance or by filing an application to take the testimony of the witnesses by deposition prior to the hearing. See 1 Pa. Code §§ 35.142, 35.145–35.152.   (emphasis added)




Editor’s note:  PHFA and other state agencies hold phone hearings without any  telephone regulations like those that exist for UC hearings.


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statute of limitations - equitable tolling

US v. Wong – U.S. Supreme Court – April 22, 2015 (5-4)



Held, Federal Tort Claims Act time limits for suit against the government are subject to equitable tolling.  The statute of limitations was held to be not jurisdictional, despite “shall be forever barred” language.