Friday, August 16, 2019

UC - UCBR findings - substantial evidence - court review

Spradlin v. UCBR – Cmwlth. Court – unreported* memorandum opinion – August 16, 2019


Finding of overpayment reversed.  UCBR finding not supported by substantial record evidence.
Notwithstanding that the UCBR is “the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence[,]” the record evidence does not support the UCBR’s findings and conclusions in this case. Sipps, 181 A.3d at 484 (quoting Ductmate Indus., 949 A.2d at 342); see Goldman v. UCBR (Pa. Cmwlth. No. 2392 C.D. 2014, filed September 25, 2015); see also VanKersen v. UCBR (Pa. Cmwlth. No. 1771 C.D. 2014, filed April 21, 2015).
As substantial record evidence does not support the UCBR’s findings.... the UCBR erred by concluding that Claimant was ineligible for....benefits.... [and was overpaid].

This Court acknowledges that its unreported memorandum opinions may only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Goldmanand VanKersen are cited herein for their persuasive value. 
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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



Tuesday, July 30, 2019

UC - jurisdiction of UCBR to consider merits when ER asks only for relief from charges

Martin v. UCBR – Cmwlth. Court – JULY 25, 2019 – unreported memorandum decision**

Held:   Employer letter requesting only relief from charges does not act as an appeal on the merits on the case, even where filed within the applicable appeal period.

This Court has repeatedly held that “the filing of an appeal from an eligibility determination is separate and distinct from the filing of a request for relief from charges.” See Ruffner v. UCBR, 172 A.3d 91 (Pa. Cmwlth. 2017) (quoting First Nat’l Bank of Bath v. UCBR, 619 A.2d 801 (Pa. Cmwlth. 1992)); see also Myers v. UCBR (Pa. Cmwlth., Nos. 1856 & 1857 C.D. 2012, filed June 6, 2013), 2013 WL 3156565 (unreported).11 Stated otherwise, a request for relief from charges will not serve as an appeal from an eligibility determination. 

Here, the UC Service Center determined Claimant was not ineligible for UC benefits under Section 402(b) of the UC Law on the basis she had a necessitous and compelling reason to resign her employment. The notice of determination indicated that the final day to timely appeal that determination was March 12, 2018, and that the determination would become final absent the filing of an appeal by that date.
The record reveals that Employer initiated this matter by mailing a letter to the Employer Charge Unit within the 15-day appeal period, which explicitly stated, “[w]e respectfully request a relief of charges” and “this is not a request for an appeal; it is a request for a noncharge.” (bold and underline emphasis added).

Despite that express language, the Employer Charge Unit apparently assumed the letter was an appeal and transferred the letter to the UC Service Center, which then transferred the letter to the referee office, and a hearing ensued before the referee on eligibility. In reversing the UC Service Center’s determination and concluding that Claimant was ineligible for benefits under Section 402(b), the referee and the Board also treated Employer’s explicit request for relief from charges as an appeal from the UC Service Center’s eligibility determination. The referee and the Board erred in doing so because Employer was not appealing that determination.

In short, because Employer expressly did not appeal the UC Service Center’s determination finding Claimant not ineligible for benefits, that determination became final and binding on the parties and, consequently, deprived the referee and the Board of jurisdiction to issue the subsequent decisions reversing the UC Service Center’s determination and finding Claimant to be ineligible for benefits. See Section 501(e) of the UC Law, 43 P.S. §821(e); see also Section 302.1(e)(1) of the UC Law,12 43 P.S. §782.1(e)(1) (pertaining to relief from charges and providing that where a party’s eligibility is finally determined under Section 501(e), such determination shall not be subject to collateral attack in proceedings under Section 302.1). We therefore hold that the Board erred in concluding that Claimant was ineligible for benefits under Section 402(b) of the UC Law.

Editor’s note:  I suggest that someone move for publication of this opinion, which I think could be helpful and important in the frequent case (I think) where the UCBR reaches the merits of cases on ER request for relief from charges long after the time for appeal has passed.  What do others think?

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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

Wednesday, July 24, 2019

MDJ courts - execution on $ judgment outside of county of entry - MDJ Rule 402




(2) The magisterial district judge in whose office the judgment was rendered or entered shall accept all timely requests for an order of execution on that judgment, including when the location of the property to be levied upon is located outside the county of the magisterial district where the judgment was rendered or entered. 

Monday, July 22, 2019

UC - willful misconduct - inconsistent enforcement v. disparate treatment

Gordon Terminal Service Co. v. UCBR – Cmwlth. Court – Juine 3, 2019 – reported, precedential


Held:  Where the evidence showed that the employer’s enforcement of a rule against use of cell phone at work was inconsistent, the employer did not establish the existence of a rule that would support a finding of willful misconduct.

Although Employer may have had a written policy prohibiting the use of cell phones without special approval, in reality the Board found that, if Employer had such a policy, Employer engaged in “inconsistent enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence of a rule that could support a finding of willful misconduct.
See Great Valley Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated violations of its policy governing employees’ internet use, employer failed to establish that claimant’s use of internet amounted to willful misconduct); Penn Photomounts, Inc. v. UCBR, 417 A.2d 1311, 1314-15 (Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting absences and employer was aware that its employees followed less formal practice to report absences and tolerated less formal reporting practice, use of less formal practice did not constitute willful misconduct). Thus, Employer failed to meet its burden to prove that Claimant violated Employer’s work rule
Inconsistent enforcement v. disparate treatment
The Board did not determine that Employer engaged in disparate treatment but rather that Employer did not meet its burden to establish willful misconduct due to its inconsistent enforcement of a work rule. The Board, in support of its decision, wrote:  The Board is unable to substantiate any error in the Referee’s willful misconduct analysis. The employer contends that the claimant’s testimony is insufficient to establish disparate treatment regarding cell phone usage in the workplace. Nonetheless, the claimant’s testimony was more than sufficient to establish inconsistent enforcement of an alleged work rule stating that cell phone use is not permissible without special approval. (Id. at 123a.) 
The distinction between the two concepts—i.e., disparate treatment and inconsistent enforcement of an alleged work rule—is nuanced and subtle. Disparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. In situations of inconsistent enforcement, an employer cannot prove the “deliberate violation” required by Grieb necessary for a determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying “deliberate violation of an employer’s rules” as a form of willful misconduct). Here, the Board concluded that Employer failed to establish a violation of Employer’s rules due to Employer’s inconsistent enforcement of its cell phone prohibition and, therefore, failed to prove willful misconduct. As a result, the affirmative defense of “disparate treatment” is inapplicable.

PFA - temporary custody - best interest analysis not required to award temporary custody in PFA case

C.H.L. v. W.D.L. – Superior Court – July 8, 2019 – published, precedential

Held:  Lower court’s “meticulous” opinion in PFA case involving award of temporary custody to wife upheld on appeal.  The opinion detailed the “very calculated, complex, web of domestic violence, control and intimidation by Husband against Wife.”  The specific and important language was that: 

Absent guidance from our Legislature or our Supreme Court, we conclude that a PFA court need not conduct a best interests custody analysis to award temporarycustody as form of relief under section 6108 of the Protection From Abuse Act. 

The purpose of the Protection From Abuse Act is to protect victims of domestic violence from the perpetrators of that type of abuse and to prevent domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013)(citation omitted). It is well-settled that trial courts have the authority to enter protection from abuse orders that conflict with custody orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). 

The PFA Act allows the court to award temporary custody or establish temporary visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4). Where the court finds after a hearing that the defendant has inflicted serious abuse, the court may deny the defendant custodial access to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodial rights, the court shall consider, and may impose on a pre-existing custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).  

Custody wise, a PFA order is not designed to impose anything but emergency relief. See Dye for McCoysupra, 621 A.2d at 145. To understand this, look no further than the PFA Act: “Nothing in this paragraph [relating to temporary custody as a form of relief] shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). 

But while the domestic violence emergency is still pending, a PFA order may alter a pre- existing custody order and remand for clarification to avoid conflict. See Dye for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence.” Id. 

Moreover, the PFA Act does not require a child to be physically struck before a court can award temporary sole custody to a plaintiff. The court may do so even though the defendant has inflicted serious abuse upon the plaintiff alone. See § 6108(a)(4)(iii)(B). 

UC - late appeal - nunc pro tunc allowed - postal authorities

Bankers Like & Casualty v. UCBR – reported, precedential opinion – June 27, 2019

Held:  Employer permitted to appeal nunc pro tunc where there was an administrative breakdown by postal authorities, and:

  • Envelope containing employer appeal had illegible postmark
  • Appellant’s attorney testified w/o contravention that appeal was timely mailed
  • Appeal was returned, mistakenly marked undeliverable and unable to forward
  • Attorney then promptly filed another petition for appeal to the Board


The court relied on Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) and Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) in granting a nunc pro tunc appeal, holding that “[w]e must conclude that Attorney Weissman’s uncontroverted testimony, along with the documentation which he produced, while insufficient under the law to prove timely mailing, did establish that an administrative breakdown by the postal service caused the untimely appeal, and satisfies all the necessary elements to permit the filing of the appeal nunc pro tunc.”

Friday, June 21, 2019

admin. law - duty of hearing officer - pro se litigant



Duty to conduct fair and impartial hearing   
The General Rules of Administrative Practice and Procedure (GRAPP). See Section 56.1 of the Pennsylvania Code, 31 Pa. Code § 56.1. Section 35.189 of GRAPP specifies: “It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order.” 1 Pa. Code § 35.189.

Pro se litigants
This Court has declared relative to Department hearings: The Pennsylvania Supreme Court has long held that ‘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.’ Vann v. UCBR . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)).

Referee must be “unusually cautious” with pro se litigant – make sure all issues fully and fairly  examined
More recently, this Court clarified that, ‘referees should reasonably assist pro se This Court has also concluded “that where a person proceeding before an administrative agency is not represented by counsel, the hearing officer must be unusually cautious to insure that all issues are fully examined.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992). To that end, an administrative tribunal[] has the power to ask questions to clarify matters and to elicit relevant information not presented by counsel. Dayoub v. State Dental Council [&] Examining B[d., 453 A.2d 751, 753 (Pa. Cmwlth. 1982)]. [It] will have overstepped its bound only when it heatedly questions and argues with [a party] and [his/her] witnesses ‘in such a manner that [the presiding officer’s] behavior . . . [is] much more in line with that of a prosecuting attorney than of a neutrally detached and impartial decision-maker.’ [Id.]. Shah v. State Bd. of Med., 589 A.2d 783, 797 (Pa. Cmwlth. 1991).  

In the instant matter, the Presiding Officer “reasonably assist[ed] the litigant to elicit facts that [were] probative for [her] case[,]” Hackler, 24 A.3d at 1115, to ensure that both parties had the opportunity to fully present their cases. There is no evidence that the Presiding Officer impermissibly advocated for the litigant, assisted her in a manner that biased the proceedings, or gave the appearance of impropriety. Rather, it is clear from the record that the Presiding Officer was ensuring that all relevant facts were available for the Commissioner’s review. Accordingly, the Presiding Officer did not irreparably bias the proceedings or give the appearance of impropriety.

Wednesday, June 12, 2019

mailbox rule - presumption of receipt requires adequate proof of mailing - regular place of mailing


Pinnacle Health v. UCBR – Cmwlth. Court – reported opinion – May 31, 2019


Employer held to have “proper cause” for failure to attend UC hearing, due to non-receipt of hearing notice.    No presumption of receipt of notice of hearing, since there was inadequate proof of mailing. 

The “presumption of receipt is ‘inapplicable’ in the absence of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.’” Id. (quoting Leight v. UCBR, 410 A.2d 1307, 1309 (Pa. Cmwlth. 1980) (alteration in original)). Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016).

The fact that there was a rule requiring hearing notice to be mailed does not show that it was mailed.   “[T]he mere existence of a rule requiring an act to be performed by a public official is not sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of the notice.” Blaset v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1993).  Instead, “The presumption only comes into play when there is on record some other indication that the act in question had been performed such as a notation to that effect made by a local bureau official that the letter had been deposited in the mail.” Id.

That said, proof of actual mailing is not required unless there is a rule or regulation that specifies otherwise.  C.E. v. DPW, 97 A.3d 828, 833 (Pa. Cmwlth. 2014).  Rather, “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Department of Transportation v. Brayman Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)). “It is well settled that the presumption in the mailbox rule is not nullified by testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d at 566.

There was no proof of mailing in this case.   Clerk in referee office testified that she prepared the notice and put it in a basket on her desk, after which it was retrieved by a person from the mail room.  But there was no testimony about postage being affixed or how notices are actually mnailed.  The fact that the notice contained a “date of mailing” does not, without more, establish proof of mailing. See Douglas, 151 A.3d at 1193. 

Regular place of mailing –  Reading Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using “regular place of mailing” and “usual place of mail”), and  Douglas, 151 A.3d at 1191 (using “in the mail”) together, the Court here held that “the regular place of mailing is the place where the properly addressed letter, with postage affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or other location where a mail carrier retrieves the mail. Accordingly, in order for the Board to utilize the presumption of regularity in order to invoke the presumption of receipt, it must present evidence regarding how properly addressed items, with proper postage affixed, customarily enter the mail or, alternatively, show “some other indication that the act in question had been performed” such as a notation in the record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at 449.

There was not such evidence in this case.  The referee clerk “could not and did not address how and when the notices she prepares enter the mail or whether the notices receive the proper postage prior to their mailing, as she only places mail in a basket on her desk, which must then be picked up and further processed. Indeed, the clerk acknowledged that the basket on her desk was not the place where the notices customarily entered the U.S. Mail. Accordingly, the court remanded to the Board “for consideration of the evidence Employer submitted regarding the merits of Claimant’s appeal.”

Thursday, June 06, 2019

Housing - Sec. 8 - termination - conduct in immediate vicinity


Cox v. Johnstown Housing Authority – Cmwlth. Court – reported decision – June 5, 2019

Held:  Public drunkenness conviction based on conduct that took place 1.9 miles from sec. 8 residence could not support termination of sec. 8 assistance, where the HA “failed to present one scintilla of evidence” that the resident’s conduct “made other residences of the premises” where he lived, “or persons in the immediate vicinity of those premises, feel insecure or anxious for tehir health, safetly or peaceful enjoyment.”  Thus, there was “no statutory or regulatory basis on which to terminate” the resident’s sec. 8 benefits.  A decision to terminated “may not be based on mere speculation that the residents or persons in the immediate vicinity. . .could or may be threatened at sime point in the future.”

From the opinion –

This Court has recognized:   The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority’s decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority’s discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth. 2013)]. Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc)
           
Congress did not state in Section 8 of the Housing Act that any and all criminal activity, wherever it occurs, is grounds to terminate Section 8 Program benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that Cox signed place him on notice that any and all criminal activity and/or alcohol abuse no matter where it takes place constitute grounds upon which the Authority could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act and applicable HUD Regulations, the Authority must prove, and the court must find that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such activity threatens the health, safety, or right to peaceful enjoyment of residents and/or persons in the immediate vicinity thereof. The second element demands proof of a threat to the health, safety or right to peaceful enjoyment of residents and/or persons  in the immediate vicinity on or near the Section 8 Program leased premises. 14 Thus, it is not the occurrence of the criminal and/or alcohol-related act that is needed to jeopardize Cox’s assistance or the possibility that it could occur, but there must also be proof that the health, safety or peaceful enjoyment rights of those who reside in the “immediate vicinity” of Cox’s premises was “threatened” by that act. 24 C.F.R. § 982.551 [emphais deleted).

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