N. Lee Ligo and Associates v. UCBR - unpublished - October 28, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/96CD10_10-28-10.pdf
Decision must be based on evidence produced at the hearing - Pursuant to 34 Pa. Code § 101.106, the Board’s scope of review of an appeal from the decision of a referee is that it “may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted . . . .” The Board is not permitted to consider post-hearing factual communications in its determination and must consider only the evidence previously submitted at the hearing. Croft v. UCBR, 662 A.2d 24 (Pa. Cmwlth. 1995); Tener v. UCBR, 568 A.2d 733 (Pa. Cmwlth. 1990).
Violation of work rule - employer b/p - claimant conduct must be intentional and deliberate - When the misconduct involves a work rule violation, the employer bears the burden of proving the existence of the work rule and its violation. Walsh v. UCBR, 943 A.2d 363 (Pa. Cmwlth. 2008). Moreover, in order for Employer to demonstrate willful misconduct, it must present evidence that Claimant’s conduct was intentional and deliberate. See Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003). A determination of whether an action constitutes willful misconduct requires a consideration of all of the circumstances, “including the reasons for the employee’s noncompliance with the employer’s directive.” Rebel v. UCBR, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998).
Thursday, October 28, 2010
Monday, October 25, 2010
UC - education employees - reasonable assurance - subpoena -
Juniata Childcare and Devel. Services, Inc. v. UCBR - Cmwlth. Court - July 29, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/2358CD09_10-22-10.pdf
The court remanded this case for an additional hearing, at which the employer would be allowed to present evidence through witnesses whom the referee improperly refused to subpoena.
The employer alleged that the claimant were educational (Head Start) employees who had reasonable assurance of continuing work in the next educational year and were thus not eligible under 43 P.S. §802.1. Before the hearings began, Employer requested that the Referee issue a subpoena for certain documents which it claimed would establish that Claimants had a reasonable assurance of continuing their employment once the summer ended and school was back in session. The referee refused to issue the subpoena, claiming that the ER would not be able to lay a proper foundation.
A referee has discretion to refuse to issue a subpoena. Alston v. UCBR, 967 A.2d 432 (Pa. Cmwlth. 2009). However, this discretion is not absolute. A referee may not refuse to issue a subpoena, then rule against the party that requested the subpoena because it did not offer into evidence the very information that the party could only have obtained through the subpoena that the referee declined to issue. Hamilton v. UCBR, 532 A.2d 535, 537(Pa. Cmwlth. 1987).
http://www.pacourts.us/OpPosting/Cwealth/out/2358CD09_10-22-10.pdf
The court remanded this case for an additional hearing, at which the employer would be allowed to present evidence through witnesses whom the referee improperly refused to subpoena.
The employer alleged that the claimant were educational (Head Start) employees who had reasonable assurance of continuing work in the next educational year and were thus not eligible under 43 P.S. §802.1. Before the hearings began, Employer requested that the Referee issue a subpoena for certain documents which it claimed would establish that Claimants had a reasonable assurance of continuing their employment once the summer ended and school was back in session. The referee refused to issue the subpoena, claiming that the ER would not be able to lay a proper foundation.
A referee has discretion to refuse to issue a subpoena. Alston v. UCBR, 967 A.2d 432 (Pa. Cmwlth. 2009). However, this discretion is not absolute. A referee may not refuse to issue a subpoena, then rule against the party that requested the subpoena because it did not offer into evidence the very information that the party could only have obtained through the subpoena that the referee declined to issue. Hamilton v. UCBR, 532 A.2d 535, 537(Pa. Cmwlth. 1987).
Friday, October 22, 2010
involuntary termination - incarcerated parent
Adoption of S.P. - Superior Court - October 21, 2010 (2-1 decision, with long dissent)
http://www.pacourts.us/OpPosting/Superior/out/S30010_10.pdf
Father appeals from the trial court decree which granted the petition of county CYS petition for involuntary termination of his parental rights to a child who was born in May, 2005. Father is incarcerated and has been since prior to child's birth. The record is unclear as to how much prison time, if any, Father has yet to face, although he was eligible for parole in August 2009 and had a clean prison record at the time of the termination hearing in March 2009.
The issue presented is whether reasons other than the fact of Father’s incarceration provide the basis for the termination of Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). After a careful review of the record, including uncontroverted evidence of Father’s efforts to establish and maintain a relationship with the child since her birth and his unassisted efforts to prepare himself to assume parental responsibilities and to enter the work force, we reverse.
The agency failed to prove its case by the standard of clear and convincing evidence, which means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
The Pennsylvania Supreme Court held more than thirty years ago that incarceration alone is not a sufficient basis for termination of parental rights. In re McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). Nonetheless, application of the McCray rule, particularly in cases involving § 2511(a)(2), has proven difficult, inasmuch as a parent’s incarceration is obviously an “incapacity” that precludes day-to-day interactions and activities normally attendant to a parent-child relationship. The difficulty of this reconciliation is evident from the fact-intensive analysis set forth in our case law dealing with terminating the parental rights of an incarcerated parent. Bartasavich v. Mitchell, 471 A.2d 833, 834 (Pa. Super. 1983) and In re I.G., 939 A.2d 950, 953 (Pa. Super. 2007).
http://www.pacourts.us/OpPosting/Superior/out/S30010_10.pdf
Father appeals from the trial court decree which granted the petition of county CYS petition for involuntary termination of his parental rights to a child who was born in May, 2005. Father is incarcerated and has been since prior to child's birth. The record is unclear as to how much prison time, if any, Father has yet to face, although he was eligible for parole in August 2009 and had a clean prison record at the time of the termination hearing in March 2009.
The issue presented is whether reasons other than the fact of Father’s incarceration provide the basis for the termination of Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). After a careful review of the record, including uncontroverted evidence of Father’s efforts to establish and maintain a relationship with the child since her birth and his unassisted efforts to prepare himself to assume parental responsibilities and to enter the work force, we reverse.
The agency failed to prove its case by the standard of clear and convincing evidence, which means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
The Pennsylvania Supreme Court held more than thirty years ago that incarceration alone is not a sufficient basis for termination of parental rights. In re McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). Nonetheless, application of the McCray rule, particularly in cases involving § 2511(a)(2), has proven difficult, inasmuch as a parent’s incarceration is obviously an “incapacity” that precludes day-to-day interactions and activities normally attendant to a parent-child relationship. The difficulty of this reconciliation is evident from the fact-intensive analysis set forth in our case law dealing with terminating the parental rights of an incarcerated parent. Bartasavich v. Mitchell, 471 A.2d 833, 834 (Pa. Super. 1983) and In re I.G., 939 A.2d 950, 953 (Pa. Super. 2007).
Thursday, October 21, 2010
admin. Law - due process - notice
Erie Sports Bar v. Bureau of Liquor Control Enforcement - Cmwlth. Court - October 221, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/1562CD08_10-21-10.pdf
The court upheld an administrative decision concerning an alleged violation of liquor laws by selling liquor to a minor. The BLCE did not give the bar immediate, on-site notice of the alleged violation, as required by a state regulation. In affirming the admin. decision rejecting the BLCE's enforcement because of this failure, the court said
http://www.pacourts.us/OpPosting/Cwealth/out/1562CD08_10-21-10.pdf
The court upheld an administrative decision concerning an alleged violation of liquor laws by selling liquor to a minor. The BLCE did not give the bar immediate, on-site notice of the alleged violation, as required by a state regulation. In affirming the admin. decision rejecting the BLCE's enforcement because of this failure, the court said
To the extent that particular forms of notice have been mandated by the General Assembly via statute, or via regulation properly promulgated thereunder, due process protections are implicated. Given that the notice provision required by [the regulation] is directed solely at the premises at which the Bureau has undertaken an action (and found a violation) . . .due process demands that such an action (when a violation has been found) include the mandated immediate notice to those premises. Where
specifically provided for and expressly mandated without exception, due process protections are not optional.Where the General Assembly, or an administrative body under its own regulations promulgated pursuant to statute, expressly provides for mandated notice, due process protections attach to that notice.
Monday, October 18, 2010
UC - voluntary quit - voluntary layoff option - duty of referee to unrepresented parties
Beddis v. UCBR - October 18, 2010 - Cmwlth. Court - precedential
http://www.pacourts.us/OpPosting/Cwealth/out/2233CD09_10-18-10.pdf
The voluntary layoff (VLO) provision of sec. 402(b) applies only to temporary separations, with the possibility of a recall, and is not accompanied by "some form of consideration from the employer" such as a severance or early retirement package.
Recognizing that its intepretation of the VLO provision goes beyond the plain words of the statute, the court noted that it has interpreted the provision in this manner "since its include in the [UC] Law three decades ago," and that this intepretation was affirmed by a "sharply divided" Supreme Court in, Sievers v. UCBR, 555 A.23 260 (Pa. Cmwlth. 1987), affd., 551 A2d 1057 (Pa. 1989).
The Beddis decision also contains a discussion of the duty of a referee to assist unrerpesented parties, both claimant and employer.
http://www.pacourts.us/OpPosting/Cwealth/out/2233CD09_10-18-10.pdf
The voluntary layoff (VLO) provision of sec. 402(b) applies only to temporary separations, with the possibility of a recall, and is not accompanied by "some form of consideration from the employer" such as a severance or early retirement package.
Recognizing that its intepretation of the VLO provision goes beyond the plain words of the statute, the court noted that it has interpreted the provision in this manner "since its include in the [UC] Law three decades ago," and that this intepretation was affirmed by a "sharply divided" Supreme Court in, Sievers v. UCBR, 555 A.23 260 (Pa. Cmwlth. 1987), affd., 551 A2d 1057 (Pa. 1989).
The Beddis decision also contains a discussion of the duty of a referee to assist unrerpesented parties, both claimant and employer.
Saturday, October 16, 2010
tax sale - costs - right to itemization of costs - 72 P.S. sec. 5568q
Appeal of Holler - Cmwlth. Court - September 20, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/2318CD08_9-20-10.pdf
A delinquent taxpayer has a right to a statement of taxes owing, incluidng penalty, interest and "any costs or other charges in detail against such property. . . ." 72 P.S. sec. 5568q. (emphasis added).
Where the taxing authority failed to answer the taxpayer's numerous demands for a detailed accounting of costs, providing only a lump sum figure of aggregate, undifferentiated costs, the court held that "Appellant should be provided a hearing limited to the itemization of the Tax Bureau’s costs and whether such costs would be permitted under the Law. . . .We agree with Appellant that she is entitled to an itemization of the costs she owed and not merely a miscellaneous grouping of costs. . . .Accordingly, we must. . . remand for a hearing to order the Tax Bureau to itemize costs that were charged, whether such costs would be permitted under the Law and in the event any costs paid by Appellant are not identified by the Tax Bureau as properly chargeable, to order a refund of same to Appellant.
http://www.pacourts.us/OpPosting/Cwealth/out/2318CD08_9-20-10.pdf
A delinquent taxpayer has a right to a statement of taxes owing, incluidng penalty, interest and "any costs or other charges in detail against such property. . . ." 72 P.S. sec. 5568q. (emphasis added).
Where the taxing authority failed to answer the taxpayer's numerous demands for a detailed accounting of costs, providing only a lump sum figure of aggregate, undifferentiated costs, the court held that "Appellant should be provided a hearing limited to the itemization of the Tax Bureau’s costs and whether such costs would be permitted under the Law. . . .We agree with Appellant that she is entitled to an itemization of the costs she owed and not merely a miscellaneous grouping of costs. . . .Accordingly, we must. . . remand for a hearing to order the Tax Bureau to itemize costs that were charged, whether such costs would be permitted under the Law and in the event any costs paid by Appellant are not identified by the Tax Bureau as properly chargeable, to order a refund of same to Appellant.
Thursday, October 07, 2010
UC - voluntary quit - leaving work in anger
Procyson v. UCBR - September 22, 2010 - Commonwealth Court (2-1)
http://www.pacourts.us/OpPosting/Cwealth/out/1771CD09_9-22-10.pdf
The UCBR erred in concluding that Claimant’s sudden departure from work after an upsetting conversation with her supervisor constituted a voluntary quit where
- claimant, a part-time empoyee, walked out before completing her shift on Friday
- claimant never said that she was quitting
- claimant reported to work for her next scheduled shift, the next Tuesday, when ER told her that she was fired, should leave and never come back.
The law requires evidence of a conscious intention to abandon a job, but Claimant never expressed such a conscious intention. The fact that a claimant leaves work before the end of a shift does not, in itself, establish an intent to quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).
Whether the claimant’s separation from employment is the result of a voluntary resignation is a question of law subject to our review and must be determined from the facts of the individual case. Key v. UCBR, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A voluntary quit requires a finding that the claimant had a conscious intention to leave employment. Fekos Enterprises v. UCBR, 776 A.2d 1018, 1021 (Pa. Cmwlth. 2001). In determining the claimant’s intent, this Court must consider “the totality of the circumstances surrounding the incident.” Id.
This Court has specifically addressed the question of whether a claimant who abruptly leaves work without permission has manifested an intention to quit. We have explained that an employee who is absent from work without authorization and without taking steps to preserve the relationship by telling the employer if and when he may return may be held to have voluntarily quit. UCBR v. Metzer, 28 Pa. Commonwealth Ct. 571, 368 A.2d 1384 (1977). However, the majority of these disputes have resulted from either unreasonable or inordinately long absence periods. Ryan v. UCBR, 448 A.2d 713, 714-715 (Pa. Cmwlth. 1982) (emphasis in original).
An employee who abruptly leaves work has a reasonable period of time in which [the] employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-versa. Iaconelli, 892 A.2d at 896 (citing Ryan, 448 A.2d 713). In other words, leaving the workplace in high dudgeon before the end of a shift does not, in itself, manifest an intention to quit.
The totality of the circumstances does not support the Board’s conclusion that Claimant voluntarily terminated her employment. Claimant was hoping to return to work full-time when the altercation developed at work. She never said “I quit.” Although she abruptly left work without completing her shift, Ryan established that such conduct does not, in itself, manifest a conscious intention to quit. Claimant was a part-time employee who worked only ten to thirteen hours a week. She left work on Friday and returned on Tuesday, at her next shift. This is not an “inordinately long absence.” Ryan, 448 A.2d at 715. It is not reasonable to infer that by not calling Employer on her days off, Claimant expressed an intention to quit. Indeed, Employer had the “opportunity to contact the employee,” Iaconelli, 892 A.2d at 896, but chose, instead, to drop Claimant from the Tuesday schedule without calling her. By reporting to work at her next shift, Claimant acted to preserve the employment relationship.
http://www.pacourts.us/OpPosting/Cwealth/out/1771CD09_9-22-10.pdf
The UCBR erred in concluding that Claimant’s sudden departure from work after an upsetting conversation with her supervisor constituted a voluntary quit where
- claimant, a part-time empoyee, walked out before completing her shift on Friday
- claimant never said that she was quitting
- claimant reported to work for her next scheduled shift, the next Tuesday, when ER told her that she was fired, should leave and never come back.
The law requires evidence of a conscious intention to abandon a job, but Claimant never expressed such a conscious intention. The fact that a claimant leaves work before the end of a shift does not, in itself, establish an intent to quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).
Whether the claimant’s separation from employment is the result of a voluntary resignation is a question of law subject to our review and must be determined from the facts of the individual case. Key v. UCBR, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A voluntary quit requires a finding that the claimant had a conscious intention to leave employment. Fekos Enterprises v. UCBR, 776 A.2d 1018, 1021 (Pa. Cmwlth. 2001). In determining the claimant’s intent, this Court must consider “the totality of the circumstances surrounding the incident.” Id.
This Court has specifically addressed the question of whether a claimant who abruptly leaves work without permission has manifested an intention to quit. We have explained that an employee who is absent from work without authorization and without taking steps to preserve the relationship by telling the employer if and when he may return may be held to have voluntarily quit. UCBR v. Metzer, 28 Pa. Commonwealth Ct. 571, 368 A.2d 1384 (1977). However, the majority of these disputes have resulted from either unreasonable or inordinately long absence periods. Ryan v. UCBR, 448 A.2d 713, 714-715 (Pa. Cmwlth. 1982) (emphasis in original).
An employee who abruptly leaves work has a reasonable period of time in which [the] employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-versa. Iaconelli, 892 A.2d at 896 (citing Ryan, 448 A.2d 713). In other words, leaving the workplace in high dudgeon before the end of a shift does not, in itself, manifest an intention to quit.
The totality of the circumstances does not support the Board’s conclusion that Claimant voluntarily terminated her employment. Claimant was hoping to return to work full-time when the altercation developed at work. She never said “I quit.” Although she abruptly left work without completing her shift, Ryan established that such conduct does not, in itself, manifest a conscious intention to quit. Claimant was a part-time employee who worked only ten to thirteen hours a week. She left work on Friday and returned on Tuesday, at her next shift. This is not an “inordinately long absence.” Ryan, 448 A.2d at 715. It is not reasonable to infer that by not calling Employer on her days off, Claimant expressed an intention to quit. Indeed, Employer had the “opportunity to contact the employee,” Iaconelli, 892 A.2d at 896, but chose, instead, to drop Claimant from the Tuesday schedule without calling her. By reporting to work at her next shift, Claimant acted to preserve the employment relationship.
equity - unclean hands
Mazzitti and Sullivan Counseling Services v. DPW - Cmwlth. Court - October 7, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/1593CD09_10-7-10.pdf
Claim of payment for a counseling services denied because petitioner had unclean hands, involving fraudlent claims for services.
http://www.pacourts.us/OpPosting/Cwealth/out/1593CD09_10-7-10.pdf
Claim of payment for a counseling services denied because petitioner had unclean hands, involving fraudlent claims for services.
It is well settled that “[a] court may deprive a party of equitable relief where, to the detriment of the other party, the party applying for such relief is guilty of bad conduct relating to the matter at issue. The doctrine of unclean hands[7] requires that one seeking equity act fairly and without fraud or deceit as to the controversy in issue….” Terraciano v. Department of Transportation, 562 Pa. 60, 69, 753 A.2d 233, 237-238 (2000) (citations omitted).
As the Pennsylvania Supreme Court has noted:
[T]he doctrine of unclean hands is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith…. Thus while ‘equity does not demand that its suitors shall have led blameless lives’ … as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue….Shapiro v. Shapiro, 415 Pa. 503, 506-507, 204 A.2d 266, 268 (1964) quoting Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814-15 [(1945)]. Jacobs v. Halloran, 551 Pa. 350, 359-360, 710 A.2d 1098, 1103 (1998).
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