Thursday, September 03, 2009

UC - independent contractor - "online mentor"

Thomas Edison State College v. UCBR - August 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf

An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).

The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).

housing - sec. 8 - termination - admin. findings

Housing Authority of Pittsburgh v. Degelman - Cmwlth. Court - September 2, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf

This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.

The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.

Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that

(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.

Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.

The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."

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