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.
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




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.

Wednesday, April 22, 2015

public housing - right of applicant to hearing and appeal of denial - Bray v. Housing Authority

Bray v. Housing Authority of Pittsburgh – Cmwlth.  Court – en banc – April  21, 2015


Overruling its decisions in Cope v. Bethlehem Housing Authority, 514 A.2d 295 (Pa. Cmwlth. 1986), and McKinley v. Housing Authority of the City of Pittsburgh, 58 A.3d 142 (Pa. Cmwlth. 2012), the en banc Commonwealth Court held that a local housing authority’s decision is an “adjudication” under Section 101 of the Administrative Agency Law, 2 Pa. C.S. § 101, and that applicants for public housing have a personal or property interest in those benefits and, thus, a right to appeal an adverse HA decision to a court of common pleas, under the Local Agency Law, 2 Pa. C.S.  551 et seq.  and 751 et seq.

 Section 752 of the Local Agency Law states, in pertinent part, that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in the adjudication shall have the right to appeal therefrom.”  2 Pa. C.S. § 752. There is no question that an applicant for public housing is aggrieved by and has a direct interest in the result of a housing authority decision.   If the applicant is able to establish that the decision is an “adjudication” as defined by Section 101 of the Administrative Agency Law, she would be entitled to judicial review of the decision pursuant to Section 752 of the Local Agency Law.

 Section 101 of the Administrative Agency Law defines the term “adjudication,” in pertinent part, as:

 Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions.

 2 Pa. C.S. § 101. To be an adjudication, the action “must be an agency’s final order, decree, decision, determination or ruling [first requirement] and . . . it must impact on a person’s personal or property rights, privileges, immunities, duties, liabilities or obligations [second requirement].”   There is no dispute that a housing authority decision is a final decision on an application, so the first requirement is satisfied. It is the second requirement which is the focus of this case.

 The Court rejected the HA’s argument that it has unfettered discretion in how it reaches a decision and, thus, its decisions are not adjudications subject to appeal to a court of common pleas or the Commonwealth Court.  The Court rejected this argument, noting that “to remedy the shortage of safe, affordable housing, the United States Congress enacted a comprehensive statutory framework pursuant to which the Department of Housing and Urban Development (HUD) has promulgated numerous regulations that include express requirements for determining tenant eligibility. These eligibility requirements are mandatory, establishing the criteria a public housing authority must consider and what it may not consider when reviewing an application for public housing.” (emphasis in original)

 Where a government entity creates eligibility rules, those rules provide an individual within the eligible class an interest and claim to which procedural due process attaches and, even though the governmental entity retains discretion in its ultimate decision, that discretionary power “must be . . . exercised after fair investigation, with such a notice, hearing[,] and opportunity to answer for the applicant as would constitute due process.”  Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 119, 123  (1926).  These principles regarding the existence of eligibility criteria and the creation of a protected interest in a determination of one’s eligibility have been recognized and applied by many federal courts. [citations omitted].

 These federal court decisions focus on the existence of particularized standards or criteria that limited the housing authority’s discretion in favor of the applicant to determine whether a protected property interest existed. Because the Housing Act and its regulations contain particular requirements and criteria which govern an applicant’s eligibility, the federal courts recognized that applicants have a protected property interest in obtaining a proper eligibility determination. This is separate from the property right which existing residents have in their housing units that Cope and McKinley recognized. The property interest involved in this case is not the right to an actual public housing unit or a voucher, but the right to have the applicant’s eligibility determined in accordance with the requirements of the federal law, which can, eventually, result in the receipt of an actual housing unit.   Thus, an applicant for a defined and regulated public benefit – housing, UC, welfare, or the like -- has a property interest in a proper eligibility determination, even if the applicant does not yet have a property interest in the benefit itself. 

 Another consideration is the fact that, if there were no judicial review of a decision from the informal hearing, there would be no method to assure applicants that housing authorities are truly complying with their federal obligations.  Absent judicial review, there would be no check on a housing authority’s decision-making to ensure that the housing authority is complying with all of the requirements of relevant statutes and regulations, which would essentially render them mere surplusage.  The Court cited its own jurisprudence as including “examples of the types of mistakes made in determining an individual’s eligibility for public housing.  Romagna v. Housing Authority of Indiana County (Pa. Cmwlth., No. 1648 C.D. 2011, filed July 13, 2012) and Brown v. Housing Authority of the City of Pittsburgh (Pa. Cmwlth., No. 617 C.D. 2014, filed March 25, 2015).   These cases provide “an example of the type of misinterpretation of the federal regulations that a housing authority can make that would affect an individual’s eligibility, whether initial or ongoing, to receive public housing benefits.  The Court saw “no reason why a housing authority’s misinterpretation of the applicable federal law and regulations should go uncorrected when it occurs during the initial eligibility determination, which would be the effect of our holding that a housing authority’s decision denying benefits is not an adjudication.”



Sunday, April 12, 2015

custody - modification

R.S. v. T.T. – Superior Court – April 10, 2015



The lower court erred in modifying an order which gave parents roughly equal physical custody.   The “slight unpleasantness” that might be involved in the 35-40 minute car ride to school when child was with father was not a “special circumstance” and did not justify any modification.   Moreover, the trial court did not discuss any possible harm to the child that would ensue in  “uprooting “ the child from “the care pattern he has known from a young age” and “dramatically reduc(ing)” father’s custody time, especially considering the court’s finding that mother was less likely than father to encourage a relationship with the other parent. 




This  summary is also posted at the PLAN Legal Update, 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, where the opinions of all state appellate courts can be found.



UC - wages - "direct seller" exception

Sydnor v. UCBR – Cmwlth. Court – April 10. 2015



Claimant held to be financially ineligible under Section 4(l)(4)(20) of the UC Law, 43 P.S. sec. 753(l)(4)(20), because he came within the “direct seller” exception for inclusion of wages as a door-to-door sales person for Verizon FiOS.  The court rejected claimant’s argument that there should have been a self-employment analysis, which the court said was “simply inapplicable” because of the wage disqualification under the direct-seller provision.


“Wages” are “all remuneration … paid by an employer to an individual with respect to his employment.” 43 P.S. §753(x) (emphasis added). “Employment” is “all personal service performed for remuneration by an individual under any contract of hire.” 43 P.S. §753(l)(1). However, there are various exceptions to “employment,” one of which is if an individual is a “direct seller.” See 43 P.S. §753(l)(4)(20).


Here, Claimant was not employed by the Company; rather, he was a “direct seller,” which is an individual who is:  (i) engaged in the trade or business of selling or soliciting the sale of consumer products to any buyer on a buy-sell basis or a deposit-commission basis, or any similar basis which the United States Secretary of Treasury or his delegate prescribes by regulations for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment, or (ii) engaged in the trade or business of selling or soliciting the sale of consumer products in the home or otherwise than in a permanent retail establishment.

43 P.S. §753(l)(4)(20).



To be a “direct seller,” (i) substantially all the remuneration whether or not paid in cash for the performance of the services described under this definition must be directly related to sales or other output, including the performance of services rather than to the number of hours worked, and (ii) the services performed by the person must be performed pursuant to a written contract between the person and the person for whom the services are performed and the contract provides that the person will not be treated as an employe with respect to the services for Federal tax purposes. Id.




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, where the opinions of all state appellate courts can be found.

Tuesday, April 07, 2015

UC - employee v. indpt. contractor - burden of proof

Larry Fry Drywall v. Office of UC Tax Assessment Services – Pa. Cmwlth. – April 7, 2015 – unreported memorandum opinion



The court affirmed the OUCTAS finding that the employer had wrongly considered its employees to be independent contractors.  The Office assessed the employer ~$36,000 for unpaid UC taxes.


“A determination regarding the existence of an employer-employee relationship is a question of law that depends on the unique facts of each case.” Kurbatov v. Dep’t of Labor & Indus., Office of Unemployment Comp., Tax Servs., 29 A.3d 66, 70 (Pa. Cmwlth. 2011). “[T]here is a presumption in the [UC] Law that an individual receiving wages is an employee and not . . . engaged in self-employment.” Training Assocs. Corp. v. Unemployment Comp. Bd. of Review, 101 A.3d 1225, 1234 (Pa. Cmwlth. 2014) (quoting Pasour v. Unemployment Comp. Bd. of Review, 54 A.3d 134, 137 (Pa. Cmwlth. 2012)).


The [UC Law] goes very far, and properly so, and places a very heavy burden on the applicant when it makes payment to anyone who has performed . . . services to excuse or exempt that payment from the unemployment compensation tax. Few indeed are the instances where that burden can be met. . . .

Kurbatov, 29 A.3d at 71 (quoting Am. Diversified Corp. v. Bureau of Employment Sec., Dep’t of Labor & Indus., 275 A.2d 423, 426 (Pa. Cmwlth. 1971)). “This Court . . . emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business . . . .” Peidong Jia v. Unemployment Comp. Bd. of Review, 55 A.3d 545, 549 (Pa. Cmwlth. 2012) (emphasis added).


Here, the Department found that the employer did not furnish any of the documentation requested by the Office to establish that its workers were independent contractors, including any documentation showing that the workers had their own businesses or were paying UC taxes.  


“The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.” Peidong Jia, 55 A.3d at 549.




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, where the opinions of all state appellate courts can be found.

Thursday, April 02, 2015

UC - voluntary quit v. discharge - capricious disregard

Wise v. UCBR – Cmwlth. Court – March 25, 2015



Claimant held to have quit her job when she failed to get proper certification for one possible position and did not respond to employer’s offer of another position within the time alloted.


Capricious disregard

The court rejected claimant’s allegation that the UCBR capriciously disregarded competent evidence regarding several issues.   A capricious disregard of evidence occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result. Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014). The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an “appropriate component of appellate consideration in every case in which such question is properly before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). In Wintermyer, the Supreme Court noted that where there is substantial evidence to support the agency’s factual findings and those findings support the legal conclusions, “it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard.” Id. at 487 n.14. The standard announced in Wintermyer applies whether one or both parties present evidence and, thus, overruled this Court’s earlier-announced paradigm that appellate review for capricious disregard of evidence was limited to the circumstance where the burdened party was the only party to present evidence and did not prevail. See, e.g., Lautek Corporation v. Unemployment Compensation Board of Review, 588 A.2d 1007, 1010 (Pa. Cmwlth. 1991).


Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005). In Hinkle, this Court, citing Wintermyer, explained that:

“Capricious disregard” then is just another name for the agency abusing its discretion and is an error of law when the agency fails to give an indication that it has examined countervailing substantive testimony that had to be considered at arriving at its decision.

The capricious disregard standard then is nothing more than a shorthand way of referring to an amalgam of existing overlapping legal and constitutional standards mentioned above that safeguard against arbitrariness by state and local administrative agencies by requiring a meaningful explanation of why the losing party’s overwhelming evidence was not accepted.

Id. (footnote omitted). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Spencer, 97 A.3d at 842 (Pa. Cmwlth. 2014) (citing Wintermyer, 812 A.2d at 487-88).


Applying the above principles to the case, the court held that the Board did not capriciously disregard competent and relevant evidence. It did not ignore Claimant’s “overwhelming evidence” without comment. Rather, the Board discussed and explained its decision on all relevant issues.


Voluntary quit v. discharge

The court rejected claimant’s argument that she was fired and did not voluntarily quit her job.   Whether a claimant’s separation from employment constitutes a voluntary resignation is a question of law subject to this Court’s plenary review and will be determined from the totality of the facts surrounding the cessation of employment. Middletown Township v. UCBR, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). A voluntary termination requires a finding “that the claimant had a conscious intention to leave employment.” Procyson v. UCBR, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2012). A voluntary termination is not limited to a formal or even an express resignation; it can be inferred from the employee’s conduct. G.C. Murphy Co. v. UCBR, 471 A.2d 1295, 1297 (Pa. Cmwlth. 1984). An employee who leaves her employment without informing her employer when or if she is planning to return may be held to have voluntarily quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).


The court agreed with the Board that the evidence show that claimant exhibited a conscious intention to leave her employment by failing to respond to employer’s offer of a position within the time specified, noting that there was a need for a prompt decision by claimant, and that the employer tried to get in touch with claimant numerous time and that claimant failed to respond.




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, where the opinions of all state appellate courts can be found.