Wednesday, August 17, 2016

HEMAP - reasonable prospect - income - anticipated spousal support too speculative

Barzilayev v. PHFA – Cmwtlh. Court – August 17, 2016 – unreported* memorandum decision


Held:  PHFA did not err when it decided to not include a speculative, anticipated award of spousal support in the calculation of Homeowner’s monthly income.

We do not review the record to determine if a homeowner’s circumstances “militate toward a grant of emergency assistance”; rather we review only to see if there is substantial evidence to support the necessary findings, or to ensure that an error of law was not committed. Mull v. Pa. Hous. Fin. Agency, 529 A.2d 1185, 1188 (Pa. Cmwlth. 1987). “Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cullins v. Pa. Hous. Fin. Agency, 623 A.2d 951, 953 (Pa. Cmwlth. 1993). To prove abuse of discretion, “the petitioner must persuade us that the fact finder capriciously and arbitrarily disregarded evidence which one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth.” Koch v. Pa. Hous. Fin. Agency, 505 A.2d 649, 650-51 (Pa. Cmwlth. 1986) (emphasis added).
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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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Sunday, August 14, 2016

UC - vol. quit - substantial change

Uniontown Medical Rehab. v. UCBR – Cmwlth. Court – July 29, 2016 – unreported* memorandum opinion


Claimant had good cause to quit her clerical job at doctor’s office, where the referee and Board found that there was substantial unilateral change in working conditions, to wit, a “constant threatening to cut the claimant’s hours to part-time” and reduce her pay by $3.00/hour, if she refused to work all of the overtime hours that the doctor considered necessary to get the job done.
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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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Tuesday, August 09, 2016

UC - willful misconduct - delib. violation of ER policy - WM v. rule violation



Employee’s deliberate decision to flout ER email policy on internal mass mailings constituted willful misconduct, despite ER policy for discipline short of discharge, where ER policy gave it discretion to impose greater sanction, and it chose to do so.

When Claimant’s application for religious exemption to ER mandatory flu vaccination was denied, he sent out a series of 13 mini-mass mailings to co-workers, after he was unable to send out single mass mailing because of lack of permission.

The evidence reflects Claimant’s acknowledgement of Employer’s e-mail policies and his deliberate decision to flout Employer’s prohibition against mass e-mails by circumventing the restrictions on the distribution list and sending thirteen e-mails.   Accordingly, we conclude that Claimant’s actions constituted willful misconduct. Furthermore, the fact that Employer’s policies provide for discipline short of discharge does not negate Claimant’s termination for willful misconduct where its policies clearly afford it discretion to impose a different and greater sanction for his actions and it chose to do so. See Johnson v. UCBR, 744 A.2d 817, 821 (Pa. Cmwlth. 2000); Seton Co. v. UCBR, 663 A.2d 296, 299 (Pa. Cmwlth. 1995).
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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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Monday, August 08, 2016

tax sales - RETSL - right to installment plan - stay - "default"

Barker v. Chester Co. Tax Claim Bureau – Cmwlth. Court – July 27, 2016


The court set aside the sale and reversed the lower court, holding that

            - Taxpayers did not default under a 2010 installment agreement under sec. 603 where, although they were late with some intermediate installment payments, they made the final payment within the applicable period – “when due.”  Therefore, there was no “default” of the agreement, and the taxpayers were not disqualified from eligibility for a 2013 installment agreement under sec. 603, which bars eligibility if there was default on agreement within prior three years.

            - Sale also set aside because, even assuming there was a default,  the TCB’s admitted failure to give the taxpayers notice of such violated the notice requirement under sec. 603.

There was a lot of good language in the opinion, including the following:

            - notice of right to installment agreement must be given by TCB upon payment of 25% of the taxes due -  An upset sale must be stayed where a taxpayer pays 25% of the taxes due and agrees to an installment plan for the remainder. Further, where a taxpayer makes a payment of 25% or more, “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.’” In In Re Consolidated Return of the Tax Claim Bureau of the County of Beaver from the August 16, 2011 Upset Sale for Delinquent Taxes, 105 A.3d 76 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 121 A.3d 497 (Pa. 2015),   Id. at 82 (emphasis added) (quoting Darden, 629 A.2d at 323).

            - purpose of RETSL is collection of taxes, not taking of taxpayer’s property -  The statute was not enacted to deprive citizens of their property or to create investment opportunities for those who attend tax sales but, rather, to assist the collection of taxes. Stanford–Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa. Cmwlth. 2003). The United States Supreme Court has held that due process is implicated in any taking of property for the collection of taxes, stating that “[p]eople 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.  Jones v. Flowers, 547 U.S. 220, 234 (2006). Because of these due process concerns, this Court has explained that
the focus 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. Id. at 1252.
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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)



Wednesday, July 20, 2016

criminal history record - expungement - summary conviction - "five years following"

Commonwealth v. Giulian – July 19, 2016 – Pa. Supreme Court


We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and conclude the lower courts erred in holding expungement unavailable as a matter of law in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18 Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time, appellant was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S. §5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking, 18 Pa.C.S. §6308(a), to which she pleaded guilty.   Appellant was then arrested on September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18 Pa.C.S. §3304.  

Appellant has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her criminal history record under Section 9122(b)(3), which provides: (b) Generally.--Criminal history record information may be expunged when: * * * (3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense. (ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense. 18 Pa.C.S. §9122(b)(3).

The Court agreed with appellant that the Superior Court incorrectly read into the statute a requirement that the five arrest-free years be “immediately” following the conviction sought to be expunged, when the actual text of the statute does not include that qualifier.
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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Tuesday, July 19, 2016

UC - late appeal - non-negligent conduct of claimant

Claimant allowed to appeal nunc pro tunc from decision that she had received fault overpayments where --

            - Claimant received benefits between 11-16-13 and 5-24-14
            - On May 15, 2015, the Dept. issued an overpayment notice, charging fault OP
            - Claimant had moved from her old address, at which she received benefits, about a year before the OP notice was sent
            - CL eventually learned of OP notice and filed appeal, beyond appeal date
            - Claimant had not provided forwarding address to USPS because she was being hounded by creditors

Court held that under applicable late appeal jurisprudence, e.g., Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008), the “non-negligent conduct of the claimant” exception should be applied.  Nothing that CL did was negligent.  She had moved more than a year after her benefits had ended and had no duty or reason to let UC authorities know of this.   The testimony showed that CL had an unstable housing situation and moved to avoid creditors, but not that she was in any way negligent.

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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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)





Friday, July 15, 2016

civil procedure - complaint - right to amend - PaRCP 1033

Blackwood, Inc. v. Reading Blue Mtn. and Norther Railroad Col – Superior Court – July 15, 2016


Under Pa.R.C.P. 1033, a party can amend his pleading either with the consent of the other party or with the court’s permission. “Leave to amend lies within the sound discretion of the trial court and the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.” Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996)).

Under the pertinent rule: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa.R.C.P. 1033. However, amendment is not permitted to present a new cause of action where the statute of limitations has expired. See Phillips v. Lock, 86 A.3d 906 (Pa.Super. 2014).

Generally, an abuse of discretion occurs if a complaint is dismissed without leave to amend. Hill, supra. “There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. However, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” Id. at 557 (citation and emphasis omitted).
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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


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