Wednesday, October 15, 2008

UC - appeal - notice of issues - timeliness of appeal

Plut v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

Issue of timeliness of claimant's appeal was properly considered, even though not listed on the notice of hearing.

The referee gave claimant the option of continuing the hearing because the issue was not listed, but not the "chance to refused to decide the timeliness issue" under 34 Pa. Code101.87.

Nonetheless, following Dilenno v. UCBR, 429 A.2d 1288 (Pa. Cmwlth 1288, 1289 (Pa. Cmwlth. 1981), the court said the timeliness of an appeal is a jurisdictional prerequisite that is always at issue, cannot be waived by the referee by the failure to list it on the notice of hearing, and can be raised by the court on its own motion at any time.

UC- vol. quit - good cause - change in work schedule

Philadelphia Park Casino v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

Claimant had good cause to quit his job where he has negotiated a work shedule with the employer, for religious and health reasons, and employer unilaterally changed the schedule.

UC - hearing - continuance - good cause - new job

Ammon v. UCBR - Cmwlth. Court - October 14, 2008 - unreported memorandum decision

Refusal to grant claimant's last minute request for a continuance was an abuse of discretion, where it resulted from an unexpected, last-minute opportunity to begin employment on the day of the hearing.

Normally, last-minute requests are disfavored. However, in this case the request was supported by "proper cause" under 34 Pa. Code § 101.23

The refusal to grant it would penalize a person who actually found work and would be "contrary to the goal of stabilizing employment." Shegan v. UCBR, 564 A.2d 1022, 1025 n. 5 (Pa. Cmwlth. 1989).

pre-emption - state/local

Hoffman Mining Company v. Zoning Hearing Board - Cmwlth. Court - October 15, 2008

Whether a state statute preempts local regulation is determined by the intent of the General Assembly. The General Assembly can specifically express its intent by either providing that municipalities may enact ordinances not inconsistent with state law, limiting what subjects of regulation that may be enacted, or by expressly forbidding municipal regulation altogether.

However, the General Assembly is often silent and is not presumed to have preempted the field by legislating in it; therefore, it must clearly be shown that it was the General Assembly’s intent to preempt the field by legislation. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960); Baird v. Township of New Britain, 633 A.2d 225 (Pa. Cmwlth. 1993).

The presumption against preemption is based on the understanding that what is being preempted is the ability of the municipality, through its elected local officials, to address the needs of its citizens.