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.


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


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)).


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

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


Tuesday, December 30, 2014

UC - willful misconduct - sarcastic comments

Scott v. UCBR – Pa. Cmwlth. December 12, 2014

An employee's sarcastic comments about a supervisor did not violate a work rule against insubordination where

            a) the comments were made in a private writing to senior management, and not directed to the supervisor himself

            b)  the claimant's comments were sarcastic and not "insubordinate" – as defined in the dictionary

            c) claimant's comments concerned the supervisor's decisions concerning a behavior plan for a group home resident with serious mental health problems

" Insubordination may be found where an employee speaks to a superior in an abusive, vulgar or offensive way. The actual language used by Claimant does not meet any of those descriptions. Claimant’s two statements were sarcastic,  but they were not directed to his supervisor. For an employer to forbid sarcasm in the workplace under any circumstances, there must be an explicit rule. In itself, the use of sarcasm cannot be equated to insubordination or any other kind of willful misconduct."
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

UC - "primarily for religious purposes"

Beverly Hall Corp. v. UCBR – Cmwlth. Court – December 15, 2014

The Court affirmed the UCBR decision that the employer did not operate primarily for religious purposes, as defined in 43 P.S. 404 (l)(4)(8))a)(ii), relying heavily on a non-reported decision, Grau v. UCBR, 2012 WL 8668282 (Pa. Cmwlth. 2012)

The employer ran an organic CSA farm that was associated with the Church of Illumination, but the employer's own testimony showed that the employer organization was not created for religious purposes, but to perform the administrative, non-theological work of the church, such as ground and buildind maintenance and hiring.

The close financial connection between the employer and the church was held to be insufficient to exempt the employer, because a nonprofit corporation responsible solely for managing the admin. and finances of a religious organization is not operated primarily for religious purposes.

UC - telephone hearings - submission of documents prior to hearing

Beverly Hall Corp. v. UCBR – Cmwlth. Court – December 15, 2014

The Court affirmed the UCBR decision, affirming the referee ruling that the employer could not introduce documents at the hearing, where a)  it had not submitted them 5 days in advance, as required by UC regs, 34 Pa. Code sec. 101.130, and b) the Dept. objected to their admission.

Every hearing notice that was sent to the parties indicated in bold print that the Dept. representative was going to participate by telephone in the case, which concerened whether the employer operated primarily for religious purposes.

Sunday, December 14, 2014

UC - voluntary quit, sec. 402(b) - vol. layoff - claimant not ineligible under Diehl rationale

Naval Surface Warfare Center v. UCBR – Cmwlth. Court – December 12, 2014

Sec. 402(b) does not  render a claimant ineligible where he leave under a “Voluntary Layoff Option” (VLO), because his separation from employment was due to his acceptance of a layoff pursuant to an established employer plan which is part of a labor force reduction.

Following the decision in Diehl v. UCBR, 57 A.3d 1209 (Pa. 2012), the court also held the claimant does not have the burden to show a necessitous and compelling reason for leaving a job where the VLO language of sec. 402(b) applies, i.e. where the retirement offer made to Claimant was offered as a part of an established plan by Employer that had the practical effect of a workforce reduction.

Section 402(b) of the Law provides that an employee shall be ineligible for unemployment compensation in any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling reason. 43 P.S. § 802(b). However, the VLO Provision within Section 402(b) cautions:

Provided further, That no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy.

In Diehl, the Supreme Court examined the language of the VLO Provision and the intent of the General Assembly, as expressed in Section 3 of the Law.6 The Court highlighted the broad humanitarian objective of the Law expressed in Section 3, and recognized that a cardinal principle of the Law is that the eligibility sections must be construed liberally and the disqualification sections construed narrowly so that an unemployed worker shall be denied benefits only where the plain language of the Law unequivocally excludes the worker from receiving unemployment compensation. Diehl, 57 A.3d at 1217-1218; see also Penn Hills School District v. Unemployment Compensation Board of Review, 437 A.2d 1213, 1216 (Pa. 1981).

 The Diehl Court stressed that Section 402(b) establishes an exclusionary rule for claimants who have left employment without a necessitous and compelling reason, but that the VLO Provision is an eligibility carve-out from this disqualification provision that must be construed broadly in favor of the claimant seeking unemployment compensation. Diehl, 57 A.3d at 1221.  Looking at the VLO language as a whole, the Court stated that “the VLO Proviso applies to employees accepting employer offered early retirement packages as part of a labor force reduction, because such programs are merely a different way to accomplish the workforce reduction of a layoff.” Id. at 1222.

 The Commonwealth Court rejected the employer's argument that unemployment compensation benefits are only available when employment is terminated due to a RIF (reduction in force), as opposed to a VERA (voluntary early retirement authority). This interpretation of the Law conflicts with the plain language of the VLO Provision and was unequivocally rejected in Diehl, where the Supreme Court overruled Commonwealth Court precedent and made clear that the VLO Provision applies when a layoff is voluntary. Id. at 1221.

 Following Diehl, the issue of whether the separation was forced and whether a claimant’s decision was motivated by an objective fear that if the voluntary offer was not taken the separation from employment could later lead to a termination of employment, are not determinative of whether a claimant is eligible for UC benefits under the VLO Provision. Instead, the focus is on whether the facts demonstrate that the separation was due to a claimant’s acceptance of a “layoff.”

 In the instant matter, the evidence demonstrated that the offer of early retirement was initiated at the will of Employer and accepted by Claimant, that Claimant accepted the offer from an available position, and that the early retirement offer was made pursuant to a plan established by Employer. (R. Item 17, Board H.T. at 7, 8-9.) This evidence, along with the evidence that Claimant was “otherwise eligible,” created a presumption that Claimant was eligible for unemployment compensation under the VLO Provision. Diehl, 57 A.3d at 1222. The burden then shifted to Employer to demonstrate that the early retirement offer was not a “layoff.” Employer failed to carry this burden.

 The evidence in the record "clearly supports the Board’s determination that the practical effect of Employer’s plan was a layoff of Claimant.  Employer’s witness testified that under the VERA plan, employees in various positions “were identified as the starting point for a restructuring effort within [Employer’s] organization,” as “surplus or positions that were no longer needed in the workforce.”

Tuesday, November 11, 2014

open records - right to know law - request must be addressed to agency open-records officer

Gaming Control Board v. Office of Open Records – Pa. Supreme Court – November 10, 2014

In this open-records matter, we are called upon to construe Section 703 of the Right-to-Know Law (RTKL), 65 P.S. § 67.703 (“Section 703”), setting forth the  requirements for written RTKL requests for access to public records, to determine proper application of the provision which directs that all such requests “must be addressed to the open-records officer.”
For reasons stated below, we hold that in order to establish a valid RTKL request sufficient to trigger appellate rights from a nonresponse under the RTKL, the requestor must address his request to the respective open-records officer as mandated in Section 703.  In the case at bar, the requester addressed his request to a press aide, not the open records officer.
Commonwealth Court 4-3 decision reversed.


custody - jurisdiction - UCCJEA sec. 5423

TAM v. SLM and DMS – Superior Court – November 7, 2014

Non-custodial father's complaint to modify was properly addressed to Pennsylvania court, where

            - original order was entered in Tennessee in 2004

            - Mother was missing – disappearance being investigaged as homicice

            - pursuant to Tennessee order in 2011, maternal grandmother had physical custody of the  child in Pennsylvania , which is home state under secs. 5421 and 5423

            - grandmother's assertion that father was judge-shopping irrelevant to jurisdictional issue.*

* Tennessee judge "has found the father to be a despicable individual"

terroristic threats - out-of-state threats - jurisdiction

Commonwealth v. Vergilio – Superior Court – November 6, 2014

Pennsylvania court has juridiction over crime of terroristic threats, 18 Pa. C.S. 2706(a)(1), where the plaintiff was in Pennsylvania and heard the threats of defendant, who was in New Jersey, on the telephone.

Current technology that creates a “seemingly unlimited ability to connect people near and far.”  A contrary holding would render an offender who utters a threatening message in one state immune from suit in any and all other states to which he intentionally sends his illegal communication.

Long-standing principles in this Commonwealth hold that “[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects[7] within it, justify a state in punishing the cause of the harm. . . .”

Although our extensive research of this issue did not reveal any Pennsylvania caselaw that has addressed the specific issue presented here,8 we find the pertinent caselaw of other jurisdictions to be (citing caselaw from Kansas, Minnesota, Hawaii).