Thursday, November 01, 2018

UC - appeal - waiver of issue - UCBR argument held to be "sophistry"

Patnesky v. UCBR – Cmwlth. Court (2-1) – unreported* memorandum decision

The Court held that the employer failed to prove willful misconduct of a state driver’s license examiner who issued a replacement ID card for the “incapacitated” child of a co-worker.   The Court said that the claimant’s conduct did not violate a work rule, which it found to be ambiguous, thus resulting, at worst, in an inadvertest or negligent violation of the rule rather than the required deliberate violation.   It is well established that noncompliance with a work rule in itself does not amount to a “deliberate violation.” Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct.”).   

UCBR argument that claimant had waived an issue was held to be “sophistry.”
The more significant part of the opinion  rejected the Board’s position that claimant had waived an argument. 

At the outset, we address the Board’s waiver argument, which it makes in virtually every brief it files with this Court. The Board asserts that because the statement of questions in Claimant’s brief raises only the issue of whether Claimant committed disqualifying willful misconduct under Section 402(e) of the Law, Claimant cannot challenge the Referee’s “findings of fact,” which in this case include a statement that Claimant violated Employer’s confidentiality policy because [the incapacitated child] “was not present during the transaction.” . . . .Finding of Fact No. 6.   

By couching the legal conclusion that Claimant violated the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts that the ultimate legal issue in this case is beyond appellate review. This is sophistry.

Whether Claimant’s actions constituted disqualifying willful misconduct is a question of law fully reviewable by this Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding that legal issue, this Court must determine whether Claimant’s actions.  violated Employer’s policy as was concluded by the Board. We reject the Board’s waiver argument and proceed to the merits of Claimant’s appeal.


*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

Friday, October 19, 2018

UC - fair hearing - unrepresented party - duty of referee to assist - "full and fair hearing"

Scott v. UCBR – Cmwlth. Court – October 19, 2018 – unreported* memorandum opinion

Held:  Case remanded because claimant was not afforded a “full and fair hearing.”   The referee “precluded claimant from introducing potentially relevant evidence that would support his claim that he was discharged” rather than had quit his job.  The referee “could have taken a few minutes to review the additional documents [that] Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the claims [that] Claimatn sought to introduce, before precluding the evidence.”

Admission of evidence
In UC proceedings, the Referee has “wide latitude” regarding the admission of evidence. Creason v. UCBR, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). However, the Referee “is not free to disregard rules of evidence and if evidence is not relevant[,] the [R]eferee may exclude it.” Id. Despite this broad discretion, the Referee “may not improperly refuse to accept relevant competent and material evidence.” Healey v. UCBR, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).

Duty to assist pro se claimant
The [R]eferee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to “insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.” The [R]eferee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982); see also 34 Pa. Code § 101.21(a).  While the Referee is not obligated to advocate on behalf of a pro se claimant, see Stugart v. UCBR, 85 A.3d 606, 609 (Pa. Cmwlth.  2014), the Referee is required to reasonably assist a pro se claimant in developing the necessary facts.

In this case, a key issue before the Referee was whether Claimant was discharged from his employment or whether he voluntarily quit.   Rather than assist Claimant, however, the Referee precluded Claimant from introducing potentially relevant evidence that would support his claim that he was discharged.   Because the Referee excluded both the missing Service Center documents and the emails, we do not know the extent of any overlap between the documents and the emails or whether any of that evidence was relevant to the issues before the Referee. The Referee could have taken a few minutes to review the additional documents Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the emails Claimant sought to introduce before precluding the evidence. Because the Referee 9 failed to take these steps, we conclude that she did not “act reasonably in assisting in the development of the necessary facts.” Hackler v. UCBR, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).

*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

Sunday, October 07, 2018

courts - jurisdiction - foreign corporation - registration in Pa. - consent

Murray v. American Lafrance, LLC – Pa. Super. – reported, published – September 25, 2018

Held:  A corporation consents to jurisdiction of Pennsylvania courts when it registers as a foreign corporation under 42 Pa. C.S. 5301 (a) (2) (i-iii).

From the opinion

We observe that whether a foreign corporation consents to general personal jurisdiction in Pennsylvania by registering to do business in the Commonwealth is a matter of first impression in this Court. Our review of the caselaw has revealed that neither this Court nor our Supreme Court has had the occasion to determine whether, post-Daimler, registering to do business as a foreign corporation in the Commonwealth constitutes consent for the purposes of exercising general personal jurisdiction. However, Bors v.  Johnson & Johnson, 208 F. Supp. 3d 648 (E.D. Pa. 2016), provides a persuasive, well-reasoned analysis and we cite it with approval.

In Bors, supra, the district court considered whether Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler eliminated consent by registration under section 5301 as a basis for jurisdiction. See Bors, supra at 653-54. The Bors court reasoned that “Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business[,]” and concluded that “[c]onsent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler.” Id. at 655; see also Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *4 (E.D. Pa. filed June 13, 2017) (“conclud[ing] that, by registering to do business under § 5301, Smitty’s consented to general personal jurisdiction in Pennsylvania and that its consent is still valid under Goodyear [Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011),] and Daimler.”).

In this case, Appellee registered as a foreign corporation to do business in Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so, we hold that it consented to general personal jurisdiction in Pennsylvania. See Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640. Therefore, based on the relevant caselaw, and the language of section 5301(a), we conclude that the trial court erred when it dismissed these actions for lack of personal jurisdiction.8 Accordingly, we vacate the orders sustaining the preliminary objections, and remand these cases to the trial court.

Tuesday, October 02, 2018

debt collection - FDCPA -false, misleading - statement about IRS

Schultz v. Midland Credit Management – 3d Cir.- September 24, 2018

A statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. , particularly the threat to take any action that cannot legally be taken or that is not intended to be taken. . . . The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. §§ 1692e(5), (10).

Whether a collection letter is “false, deceptive, or misleading” under § 1692e is determined from the perspective of the “least sophisticated debtor.” Brown, 464 F.3d at 453.

Here, the reporting requirement under the Internal Revenue Code is wholly inapplicable to the Schultzes’ debts because none of them totaled $600 or more, and IRS regulations clearly state that only discharges of debt of $600 or more “must” be included on a Form 1099-C and filed with the IRS. See 26 C.F.R. § 1.6050P-1(a).   By including the reporting language on collection letters addressing debts of less than $600, we believe that the least sophisticated debtor might be persuaded into thinking that the discharge of any portion of their debt, regardless of amount discharged, may be reportable.

Based on the foregoing, we will reverse the May 8, 2017, Order of the District Court as we find that the Schultzes have pled sufficient factual allegations that state a plausible claim upon which a court may grant relief under the FDCPA. We will therefore remand for further proceedings consistent with this opinion.

Wednesday, September 19, 2018

LT - security deposit - tenant's new address - list/proof of damages

Nitardy v. Chabot – Pa. Superior Court – published opinion – Septembwr 14, 2018
majority (2-1)

Court affirmed in part, vacated in part, and remanded decision of lower court in favor of tenant who sued concerning security deposit.

Oral modification of written lease
“The law is well settled that parties may modify a written lease agreement by a subsequent oral agreement, and this modification may be shown by words or conduct. Bonczek v. Pascoe Equip. Co., 450 A.2d 75, 77 (Pa.Super. 1982). For an oral modification to be valid, it must be based upon valid consideration and proved by evidence that is “clear, precise, and convincing.” Id. (citation omitted).”

Failure to provide written list of any damages - specificity
The Landlord and Tenant Act specifically provides that a landlord shall “within thirty days of termination of a lease. . . provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable.” 68 P.S. § 250.512(a). . . .When the landlord delivers the “written list of any damages,” the landlord shall return the security deposit less “the actual amount of damages to the leasehold premises caused by the tenant.” Id. . . . . If the landlord fails to pay the difference between the security deposit and the “actual damages to the leasehold premises,” the landlord shall be liable for double the amount of the security deposit less actual damages to the leasehold premises. 68 P.S. § 250.512(c).

Since the Act requires that the landlord return the security deposit less the “actual damages” to the property, the “written list of any damages” must be specific enough so that the landlord can value the “actual damages” and notify the tenant of the basis for deducting amounts from the security deposit. In this case, the trial court found the “written list of any damages” that Landlord provided to Tenants was too vague to constitute an appropriate “written list of any damages.” In particular, the trial court found that a “vague list, without accompanying values as to each item, will not suffice.” . . . .We agree.

Tenant’s failure to timely provide new address in writing not dispositive
Subsection 250.512(e) states that “[f]ailure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under [section 250.512,]” which is the section relating to security deposits discussed supra. 68 P.S. § 250.512(e).

The trial court declined to apply this provision, stating that the parties remained in continual email contact, the Tenants evantually provided Landlord with a forwarding address, and Landlord had the mailing information needed to comply with the security deposit provisions of the Act in ample time to do so. . . . . Further, the court stated, “the suggestion that [Landlord] did not return any of [the Tenants’] security deposit because he did not have their forwarding address is belied by the record in this case.” Id. We see no basis to disturb the trial court’s ruling.

We see no basis to disturb the trial court’s ruling. The record supports its factual findings. Further, in the lone reported case by this Court construing subsection 250.512(e), we rejected a landlord’s attempt to use subsection  250.512(e) as a shield when there was no evidence in the record indicating that the failure to return the security deposit was due to the landlord’s not knowing where to mail the deposit. Adamsky v. Picknick, 603 A.2d 1069, 1071 (Pa. Super. 1992) (“[W]e find the lack of notice argument is tenuous at best since appellant’s reason for withholding the deposit was not because he did not have appellees’ new address[;] rather, he withheld it because he maintained there were damages for which he should be compensated.”).  Therefore, we hold that the trial court properly declined to apply subsection 250.512(e) in this case.

Landlord’s counterclaim for damages – burden of proof
The Act places on the landlord the burden of proof as to actual damages caused by a tenant to the leasehold premises. 68 P.S. § 250.512(c).   However, note that a landlord’s right, pursuant to the Lease, to require a tenant to pay for damage to a property may be separate and distinct from a landlord’s right to deduct amounts for damage from the security deposit pursuant to 68 P.S. § 250.512(a). If a landlord fails to meet the requirements of 68 P.S. §250.512(a), he still has a claim pursuant to the Lease. He just cannot deduct the amounts from the security deposit and must collect the amounts directly from the tenant.

Thursday, September 06, 2018

housing - disabled tenant - reasonable accommodation - Fair Housing Amendments Act

Vorchheimer v. Philadelphia Owners Assn. – 3d Cir. – September 5, 2018

Held:  Under the Fair Housing Amendment Act, 42 U.S.C. §3604(f)(2), (f)(2)(A), a disabled tenant has a right to a reasonable housing accommodation that she needs to use and enjoy her home. But if her landlord offers her an alternative that likewise satisfies that need, she has no right to demand the particular accommodation that she wants.

Thursday, August 30, 2018

custody - standing - in loco parentis - stepfather in U.S. military - physical absence from home

M.L.S. v. T.H.-S – Superior Court – Augusut 29, 2018 – reported opinion

Held:  Stepfather (SF) of 11 year-old child stands in loco parentis to child, even though SF is in active military service and lives apart from the child for the majority of time, where:

            - SF listed child as a dependent and received benefits from SF’s military service (15 years in the US Navy)
            - SF spoke with child on phone every other day while stationed in the U.S.
            - SF undertook many parental duties, as permitted by his military service, and served in many respects in place of child’s deceased father

Physical absence from home due to military services is “merely one factor” concerning in loco parentis.
SF both assumed parental status and discharged parental duties.