Wednesday, July 13, 2011

UC - rule violation; sec. 3, - criminal conviction

Green v. UCBR - Cmwlth. Court - July 13, 2011 - unpublished memorandum opinion

Rule violation - Supervisory, management employee did not violate a rule which applied, on its face, only to non-supervisory, non-management employees.

Sec. 3 - Claimant did not violate sec. 3, even though he was charged with a number of serious non-work-related offenses, including involuntary deviate sexual intercourse of a person less than 16 years of age, aggravated indecent assault of a person less than 13 years of age; indecent assault of a person less than 16 years of age, endangering the welfare of children and corruption of minors. All but one of the criminal charges were dismissed, and claimant pleaded nolo contendere to the one remaining charge, endangering the welfare of children, a misdemeanor. He received a sentence of three years of probation, was ordered to have no contact with the minor involved in the incident, and to comply with a mental health evaluation if necessary.

Section 3 can operate to disqualify claimants on the basis of off-duty, non-job related misconduct. Claimants can be found ineligible only if their behavior “(1) is inconsistent with acceptable standards of behavior, and (2) directly reflects upon his or her ability to perform the assigned duties.” Martin v. UCBR, 713 A.2d 753, 754 (Pa. Cmwlth. 1998) [citing UCBR v. Derk, 353 A.2d 915, 917 (Pa. Cmwlth. 1976)].

A criminal conviction is considered conclusive proof of the facts charged, and often is sufficient to prove the first prong of this test, Hawkins v. UCBR, 695 A.2d 963 (Pa. Cmwlth. 1997), but in evaluating the second prong, a number of factors must be considered, including: (a) the specific nature of the offense committed by Claimant; (b) the nature of Claimant's assigned duties; (c) whether Claimant's job requires any special degree of trust on the part of the employer; and (d) any other circumstances which may particularly affect Claimant's ability to do his job, including whether the crime occurred on or off Employer's premises, and whether or not it involved any of Employer's other workers or clients. SEPTA v. UCBR, 506 A.2d 974, 977 (Pa. Cmwlth. 1986).

In this case, the claimant plea of nolo contendere to the charge of endangering the welfare of a child is sufficient to prove the first prong, but UPMC offered no evidence which would satisfy the second prong by showing that the conviction directly reflects upon claimant’s ability to perform his assigned duties. In the record, there is scant evidence of the conduct underlying the conviction, no evidence whatsoever of claimant's duties or the degree of trust placed in him by his employer, and no reasons offered why the conviction would affect Green’s ability to do his job.

The Board’s finding that claimant’s conviction directly reflects upon his ability to perform his assigned duties is not supported by substantial evidence. The Board, therefore, erred in finding claimant ineligible under Section 3 of the Law.


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - hearing - procedure - limitation of cross-examination

Philadelphia Parking Authority v. UCBR - July 13, 2011 - unpublished memorandum decision

After both parties had presented their cases and rested, a limited inquiry by the referee into the basic background facts needed to issue a decision and order did not open the door for the employer to cross-examine the claimant regarding the very substance of the claim for benefits, especially where the employer chose not to call claimant as an adverse witness during its case and employer specifically declined to testify on his own behalf and in support of his claim for benefits.

Because the employer could have called claimant as a witness before it rested and the referee limited his inquiry into confirming only that claimant did not dispute that he was discharged, we discern no abuse of discretion in prohibiting cross-examination regarding the circumstances of the discharge in this case.


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - voluntary quit - health reasons

Valeriano v. UCBR - July 13, 2011 - unpublished memorandum opinion

Claimant had a necessitous and compelling health reason to leave her employment, where

- her physician directed her to stay out of work she reinjured her leg while working on a light-duty position.

- Claimant informed Employer of her inability to return to work and provided doctor's notes and other supporting medical documentation

- She was able and available to perform sedentary work within her physical restrictions

- She resigned after Employer denied her workers' compensation claim and did not respond for three weeks to her request for FMLA disability leave.

These facts found by the Board are sufficient to establish a necessitous and compelling health reason for terminating her employment under Ridley Sch. Dist v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994).

Because Claimant terminated her employment due to a necessitous and compelling health reason, not to avoid an imminent discharge, the Board's finding that Employer did not tell her that her job was in jeopardy is irrelevant to her eligibility for benefits under Section 402(b) of the Law. Compare Pa. Liquor Control Bd. v. UCBR, 648 A.2d 124 (Pa. Cmwlth. 1994) (claimant's separation from employment was a discharge for willful misconduct, not a voluntary quit, because she resigned in order to avoid an imminent discharge for a disciplinary reason).

Reasonable effort to preserve employment - The record also establishes that Claimant made a reasonable effort to preserve her employment. In Genetin v. UCBR, 499 Pa. 125, 130-31, 451 A.2d 1353, 1356 (1982), the Pennsylvania Supreme Court held: Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more. The availability of a position, the duties expected to be performed by one serving in that capacity, and the desirability of that individual for service in that capacity are managerial judgments over which the employee has no control. As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimical to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. … To insist upon the employee's initiating the quest for an alternative position, would require a meaningless ritual that does not further the objectives of the Act.

In this matter, Employer was aware of Claimant's health problems. Claimant was available and able to perform suitable work within her physical restrictions, as the Board found. Employer did not dispute that Claimant inquired about alternative positions and applied for one. Employer, however, did not offer her any suitable work and did not even respond to her letter requesting disability leave before she resigned. Claimant’s undisputed testimony shows that she visited the Administration office several times and provided all the requested documentation. She testified: "I kept asking Is there anything else you need? Is there anything else you need? And the answer was no." N.T. at 20


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.