Sunday, April 24, 2016

UC - willful misconduct - entry into ARD not proof of WM

Reading Water Authority v. UCBR – Cmwlth. Court – April 21, 2016


Held:  Where a claimant is fired for a criminal act, such as theft, subsequent acceptance into an ARD program is not sufficient proof of willful misconduct.  Bruce v. UCBR, 2 A.3d 667 (Pa. Cmwlth), app. denied, 12 A.3D 753 (Pa. 2010); UCBR v. Vereen, 379 A.2d 1228 (Pa. Cmwlt. 1977).
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Monday, April 11, 2016

UC - overpayment - non-fraud - partial v. total liability for benefits received

Stock v. UCBR – Cmwlth. Court – April 8, 2016


UCBR found that claimant made an “honest mistake” in failing to report part-time (PT) earnings over a period during which he received UC benefits.  Board also found that claimant “did not knowingly or intentionally” give false information or withhold information in order to obtain benefits, and that there was no fraud involved.

Under those circumstances, the Board erred in making a finding of “total ineligibility” and requiring claimant to reimburse the Dept. for all of the benefits that he had received.  Rather, claimant should be permitted to settle the overpayment by reimbursing the difference between the amount that he received and the amount that he should have received had his part-time wages been properly reported.

The Board erred in disqualifying him as to all benefits that he received while employed part-time. Instead, the Board should have calculated the non-fraud overpayment by first

            - determining the amount of benefits that Claimant would have received had he properly reported his PT earnings, and then
            - subtracting that amount from the amount Claimant actually received.

The difference between these sums would equal the amount of the non-fraud overpayment.
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Friday, April 08, 2016

federal courts - class action - unaccepted offer of judgment to indiv. plaintiff under FRCivP 68 does not moot class action

Weitzner v. Sanofi Pasteur Inc. – 3d Cir. April 6, 2016


Putative class action under Telephone Consumer Protection Act, 47 USC 227, not mooted by defendant’s unaccepted offer of judgment to individual plaintiff under FRCiv P 68, made before plaintiff filed motion for class certification, under Campbell-Eward v. Gomez, 136 S.Ct. 663  (2016), which overrules prior 3d Cir. precedent, Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004).



Thursday, April 07, 2016

legislative standing

Markham et al. v.Wolf et al. – Pa. Supreme Court – March 29, 2016


Held:  Legislators do not have standing to intervene in a case challenging the governor’s issuance of an executive order concerning direct care health workers.    The legislators’ interests purportedly impacted by the executive order do not involve unique legislative prerogatives, but, rather, are interests common to the general citizenry, which only remotely impact the legislators’ right to act as legislators.


Tuesday, April 05, 2016

UC - indpt. contractor - side business - necessity of findings on key issues

Spencer v. UCBR – Cmwlth. Court – April 1, 2016 – unreported* memorandum opinion


Held:  Case remanded failure of UCBR to make findings about whether claimant was “customarily engaged in an independent trade or business,” as required under Section 4(l)(2)(B) of the Law, which  sets forth a presumption that one who performs services for wages is an employee — and thus not ineligible for benefits under section 402(h) — as opposed to an independent contractor — who is ineligible for benefits under section 402(h). Stage Road Poultry Catchers v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 34 A.3d 876, 889 (Pa. Cmwlth. 2011).

The presumption in favor of employee status is overcome and the claimant will be considered an independent contractor if the putative employer establishes that: (1) the claimant was free from control and direction in performing the services; and (2) the services are of a type customarily performed in an independent trade or business. CE Credits Online v. Unemployment Compensation Board of Review, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). The issue of whether an individual is an employee or independent contractor under section 4(l)(2)(B) of the Law is a question of law, subject to this Court’s review. Stage Road Poultry Catchers, 34 A.3d at 888.

First prong - The existence of an independent contractor agreement is not dispositive, although it is a significant factor to be considered. Stage Road Poultry Catchers, 34 A.3d at 889. Other factors include: whether there is a fixed rate of remuneration; whether taxes are withheld from the individual’s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the individual was expected to attend. Id.

Second prong - The following three factors generally guide our inquiry: (1) whether the claimant is able to work for more than one entity; (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services; and (3) whether the claimant worked on a job-by-job basis and was free to accept or reject assignments. Danielle Viktor, Ltd. v. Department of Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 797-98, 801-02 (Pa. 2006); Gill v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 26 A.3d 567, 570 (Pa. Cmwlth. 2011). Where the employee is free to accept or reject an assignment, or has sole control over the days in which he/she will work, the individual is generally not considered to look to a single employer for the continuation of such services. Danielle Viktor, 892 A.2d at 801.

Moreover, as part of the second prong, the putative employer must also demonstrate “that the claimant [was] customarily engaged in such trade or business in order to be considered self-employed.” Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc) (emphasis in original).   However, and most significantly, the Board failed to make any findings or legal determination as to whether Claimant was “customarily engaged” in the business of selling insurance. See Minelli, 39 A.3d at 598. Indeed, in its brief to this Court, the Board overlooks the “customarily engaged” analysis altogether.   We have repeatedly noted that in proceedings such as these, where the claimant is already receiving benefits, the question presented is not whether the work at issue would entitle the claimant to benefits, but, rather, whether it disqualifies the claimant from further receipt of benefits he is already receiving. Minelli, 39 A.3d at 598 n.7. On this reasoning, this Court has determined that the Law requires the putative employer to demonstrate “an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed.” Id. at 598 (emphasis in original)

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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

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UC - employee v. indpt. contractor

PSU KnowHow v. UCBR – Cmwlth. Court – unreported* memorandum opinion – March 31, 2016


Held:    Some 300 tutors for private tutoring company held to be “employees” rather than independent contractors, resulting in affirmance of Department of Labor & Industry assessment of UC contributions against company. 

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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)

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Saturday, March 19, 2016

legislative power -improper delegation - lack of standards

West Philadelphia Achievement Charter School v. School District of Philadelphia – Feb. 16, 2016 - Pa. Supreme Court



Held: Sec. 696 of School Distress Law, 24 P.S. 6-691(c), violated Article II, sec. 1 (legislative power vested in General Assembly), because it gave power to a non-legislative body, without establishing adequate standards of restraint on the use of that power.

Article II, sec. 1 – legislative power – non-delegation
Article II, Section 1 of the Pennsylvania Constitution states that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, §1.  The nondelegation
rule has been described as a “natural corollary” to this text. . . . . The precept, which has its origins in the separation-of-powers doctrine . . . is of early lineage, see Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (Marshall, C.J.), and was expressed by political theorists who influenced the framers of the Constitution. See, e.g., JOHN LOCKE, SECOND TREATISE OF GOVERNMENT §141 (1690) (observing that legislative power “consists of the power to make laws, not to make legislators,” and indicating, moreover, that the legislature is not free to transfer its lawmaking powers to any other body because such power was delegated to the legislature by the people); cf. 1 WILLIAM BLACKSTONE,  COMMENTARIES ON THE LAWS OF ENGLAND *168 (1753) (remarking that a member of the House of Commons could not delegate his vote to a proxy “as he himself is but a proxy for a multitude of other people”). See generally BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS XI:6 (1748) (suggesting that political liberty requires a separation of legislative, executive, and judicial powers), quoted in THE FEDERALIST NO. 47 (James Madison).

Lack of standards – adequately defined standards
Legislative power may be delegated, so long as there has been a legislative establishment of primary objectives or standards and the entrustment to another entity to “fill up the details under the general [legislative] provisions[.]” . . . . So long as adequately-defined standards andmethodologies are provided by the Legislature, the administrative action involved may be as narrow as the grant or denial of a license, see, e.g., Casino Free Phila. v. Pa. Gaming Control Bd., 594 Pa. 202, 934 A.2d 1249 (2007), or as broad as the setting and adjustment of minimum and maximum wholesale and retail prices of a commodity to ensure fairness to producers and consumers and to regulate the supply of that commodity. See, e.g., Rohrer v. Milk Control Bd., 322 Pa. 257, 186 A. 336 (1936)

In the instant case,  the legislature had a salutary goal, but the means it chose to effectuate it were overly broad, basically carte blanche powers to suspend virtually any combination of provisions of the School Code – a statute covering a broad range of topics.  The Court’s decisions addressing the non-delegation rule have never deemed such an unconstrained grant of authority to be constitutionally valid.    The Distress Law also lacks any mechanism to limit the SRC’s actions so as to “protect[] against administrative arbitrariness and caprice.” Tosto v. Pa. Nursing Home Loan Agency, 460 Pa. 1, 12, 331 A.2d 198, 203 (1975); William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) (plurality);  Holgate Bros., 331 Pa. at 260, 200 A. at 675; Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 583 Pa. 275, 331, 877 A.2d 383, 417 (2005) (“PAGE”); Blackwell v. State Ethics Comm’n, 523 Pa. 347, 359, 567 A.2d 630, 636 (1989));  Bell Tel.v. Driscoll, 343 Pa. 109, 116, 21 A.2d 912, 915-16 (1941)).
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Saturday, March 12, 2016

UC - voluntary quit - temporary refusal to return to full-time work after childbirth

Havrilchak v. UCBR – Cmwlth. Court – December 14, 2015 – reported by order of February 14, 2016


Woman returning to work after pregnancy held to have quit her job without good cause when her request for a limited period of part-time work was refused and she rejected employer’s offer of full-time work.  The employer was Physician’s Health Alliance.

The court saw claimant’s request as one to “unilaterially change the terms of her employment from full-time to part-time,” Senkinc v. UCBR, 601 A.2d 418, 420 (Pa. Cmwlth. 1991).   Because Employer offered Claimant full-time employment, which she refused, the totality of the circumstances reflect a voluntary quit, not a termination. Id.; see Andrevich v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 658 C.D. 2010, filed March 7, 2011) (unreported), 2011 WL 10843696 (claimant’s refusal to return to work full-time after maternity leave constitutes a voluntary quit). As a consequence, Claimant is ineligible for benefits unless she can establish a necessitous and compelling reason for leaving her employment.

No good cause to have refused employer offer - Claimant asserted that a medical condition precluded her from returning to work full-time but didn't present evidence of that.  In her questionnaire, Claimant stated she left Employer for health reasons -- “post-partum depression anxiety.   A claimant has the burden to establish a medical condition as a compelling reason to leave work. Genetin v. UCBR, 451 A.2d 1353 (Pa. 1982).   Part of that burden involves submitting documentation substantiating a claimant’s medical condition to her employer. Bonanni v. UCBR, 519 A.2d 532 (Pa. Cmwlth. 1986).   Here, the record contains no indication that Claimant was unable to return to work full-time based on medical necessity.  Claimant admitted her doctor released her to return to work.

Claimant gave birth on October 18, was released to return to FT work on January 3, and was given an extra three weeks to recuperate.   Based on a “totality of circumstances,” the court rejected her argument that she had been fired, or that she had good cause to refuse the employer offer of full-time work.
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N.B.  This opinion was not initially reported.   It was later reported on motion of the UCBR.  Claimant was pro se.

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