Thursday, December 04, 2008

UC- vol. quit - voluntary retirement

Degosky v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

Subjective, unsubstantiated fear of a layoff, plus offer of voluntary retirement package did not establish good cause to quit a job. In Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), the court held that speculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause. Instead, the relevant inquiry is whether surrounding circumstances at the time an employee voluntarily leaves indicate a likelihood that fears about his or her job security will otherwise materialize, that serious impending threats to the employee’s job will be realized and that the employee’s belief that his job is imminently threatened is well founded. Moreover, while the fact that an employer has made an offer of retirement or other incentive package is important, it is not dispositive of the issue. There must be some additional circumstances existing at the time the employee accepts the offer, e.g., a lack of suitable continuing work, either currently or at a discernible point in time, together with statements or actions of the employer showing a likelihood of imminent layoff.

Here, Claimant's fear of loss of his job was "only a subjectively perceived possibility." He was "never informed that his job was in imminent danger and his supervisors informed him only that they did not know the status of his job, and further, there was evidence that continuing work was available to him. Other than his speculation that his job was in imminent danger because some of his work had been moved to Texas, there is no evidence that would prove that his concerns would be realized.

UC - willful misconduct - rule violation - mistreatment of fellow workers

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

Employer rule required workers to treat each other with "courtesy, honor, and respect." On December 31, 2007, Employer issued a warning to Claimant for improper verbal communications to patients and co-workers. On January 9, 2008, Claimant asked a question of a co-worker. When the co-worker indicated that she did not know the answer to Claimant’s question, Claimant responded “Jesus Christ, what do you know?” Employer fired claimant for that behavior the next day. Employer produced evidence as hearing of other similar incidents as well.

Claimant alleged that she did not have any bad intent when she made the remark and that it is not considered offensive in some cultures. The court said that she did not produce any authority "for her position that the lack of offensive intent constitutes good cause in a willful misconduct case. The sole questions the Board, and this Court, can consider are: (1) whether the statement is offensive, (2) whether the employee intended to make the statement and (3) whether the statement violated a rule of the employer. See Williams v. UCBR, 926 A.2d 568 (Pa. Cmwlth.), petition for allowance of appeal denied, 596 Pa. 712, 940 A.2d 368 (2007). Again, the evidence of record supports the Board’s findings and ultimate conclusion herein."

UC - appeal - petition for review - preservation/waiver of issues

Torres-Williams v. UCBR - Cmwlth. Court - December 4, 2008 - unreported memorandum decision

The court rejected the Board's attempt to quash or strike the petition for review based on claims that (1) the petition does not seek to challenge the basis of the Board’s decision, i.e., Claimant’s conduct constitutes willful misconduct, and (2) the petition for review does not seek to challenge matters over which this Court can exercise its powers of review, i.e., the Board’s factual findings, legal errors or constitutional violations.

The court said that it "has recently indicated that we may 'decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review.” Pearson v. UCBR, 954 A.2d 1260, 1263 (Pa. Cmwlth. 2008). We have also dismissed a claimant’s petition for review where the claimant only asserted vague issues of error on the part of the Board or simply asserted that the Board’s decision was not supported by substantial evidence. See Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005).

A claimant must submit a statement in his or her petition for review that is more substantial than merely a recitation of our standard of review. Admittedly, the grounds for reversal as stated by Claimant in her petition for review are somewhat lacking. However, Claimant does allege in her petition that she is challenging the Board’s decision based upon “minimum grounds of evidence.” We interpret this statement as a challenge to the Board’s findings and its conclusion that Employer met its burden of establishing willful misconduct. Claimant’s argument herein is similar to the arguments raised by the claimant in Pearson, who alleged that the Board had failed to “review all the facts” and that “this case is not strong enough,” which we interpreted as a challenge to the employer’s burden of proof and which we relied upon in rejecting the application of the waiver doctrine. Pearson, 954 A.2d at 1263.12

child abuse - expungement - photos as evidence of severe pain - perpetrator criminally negligent

S.T. v. DPW - Cmwlth Court - December 4, 2008 (order directing publication of Sept. 24th opinion)

Denial of expungment affirmed

photographic evidence showed "severe pain"
Photographic evidence held to be sufficient proof of severe pain. "A finding that a child has suffered severe pain does not need to be supported by witness testimony or medical evidence. D.N. v. DPW, 562 A.2d 433 (Pa. Cmwlth. 1989). In fact, this Court has concluded that photographs alone of a child’s injuries may support a finding that the injuries caused the child severe pain. City of Philadelphia, Office of Children, Youth and Family Services v. DPW, 767 A.2d 10 (Pa. Cmwlth. 2001).

The ALJ said the the photots "show bruises over much of the child’s body. The picture of the extensive bruising from the child’s abdomen to his groin is especially graphic. As such, the pictures depict the result of a savage beating that was far removed from any acceptable corporal punishment." From the photos one could "reasonably infer that the injuries caused severe pain."

petitioner was one of the "perpetrators" of the abuse
Petitioner/mother was held to be a perpetrator of the abuse, even thought it was her boyfriend who inflicted most of it. The " standard to be used when evaluating a perpetrator’s actions in administering corporal punishment is whether or not her actions equals that of criminal negligence. P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002)."

A person is criminal negligent "with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. 18 Pa. C.S. § 302(b)(4).

Petitioner, by her own testimony, decided to abdicate her parental responsibilities regarding discipline to her boyfriend. She then also chose not to be present in the room where she knew her son was being hit with a belt. Upon hearing her son cry, she entered his room. Once in the room, Petitioner did not suggest that she made any attempt to determine whether the punishment her son was receiving was appropriate. She did not raise any questions as to the force being used to hit the child or the location of the blows on his body. Instead, Petitioner’s only concern upon entering the room was to further punish S.P. for violating her “no crying while taking a beating” rule. After hitting S.P. herself, she chose to return the belt to her boyfriend so he could continue the punishment. She then left the room, again choosing not to monitor the situation. As such, Petitioner’s acts and omissions equal a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.