Wednesday, August 10, 2011

UC - willful misconduct - loss of drivers license

Galiyas v. UCBR - Cmwlth. Court - August 10, 2011 - unreported memoradum decision




Where one of the requirements for employment is the possession of a driver’s license, and there is a connection between the work to be performed and the necessity to have a driver’s license, the employee is ineligible for unemployment compensation benefits where he or she loses the license as a result of a DUI.


- Williams v. UCBR, 651 A.2d 708, 710 (Pa. Cmwlth. 1994) (citing Varmecky v. UCBR, 432 A.2d 635 (Pa. Cmwlth. 1981)); see also Manross v. UCBR 572 A.2d 49 (Pa. Cmwlth. 1990) (holding that a truck driver, who was convicted for DUI while off-duty and relied upon a valid driver’s license to perform his job, was ineligible for unemployment compensation benefits pursuant to willful misconduct under Section 402(e) of the Law)


- Kelly v. UCBR, 747 A.2d 436 (Pa. Cmwlth. 2000) (holding that claimant’s testimony that she did some driving to pick up meals for the prison, as a corrections officer, was sufficient to establish willful misconduct to disqualify her from receiving unemployment benefits after her driver’s license was suspended as a result of a DUI).


Because Claimant was required to maintain a valid driver’s license in order to perform her job, and her license was suspended for one year when she pled guilty to DUI, the Board correctly found Claimant ineligible for benefits based on willful misconduct.


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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.


Consumer Protection/UDAP - Pa. CPL not pre-empted by federal law - lender failed to give notice of right to cancel

Tellado v. IndyMac Mortgage Services - ED Pa. - July ___, 2011




Plaintiffs, Spanish-speaking homeowners, got a loan with Defendant in a transaction that took place at their home. They were not given a notice of their right to cancel the transaction, required under the Pennsylvania Consumer Protection Law, 73 P.S. sec. 201-7, nor were they given any documents in Spanish, their primary language.


The court held that the state CPL claim was not pre-empted by


- the federal Home Owners Loan Act (HOLA) and regulations, 12 CFR 545.2, citing Binetti v. WAMU, 446 F.Supp. 2d 217 (SDNY 2006), Poskin v. TD Banknorth, N.A., 687 F. Supp. 2d 530 (W.D. Pa. 2009), and Reyes v. Premier Home Funding, Inc., 640 F. Supp. 2d. 1147 (N.D.Cal. 2009)


- the federal Truth in Lending Act, citing Jamal v. WMC Mort. Corp., 2005 US Dist. Lexis 5076 (ED Pa. 2005)


The court held that plaintiffs stated a claim under the Pa. Consumer Protection Law and that, because of the lack of notice of right to cancel, the court orded the contract canceled, directed defendants to refund all payments made by Plaintiffs, and directed defendants to terminate any security interest they had taken in the home.


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UC - willful miscoduct - asking for substantial loan from subordinates

Weingard v. UCBR - August 10, 2011




Claimant committed willful misconduct by asking for a loan of $1,000 from subordinate employees whom he supervised.


- remoteness in time - The court rejected the argument that employer waiting too long before firing him (3 weeks) - employer conducted an investigation during that time


- rule violation - The court accepted claimant's argument that employer had not established a rule violation. To establish a rule violation, it is the employer’s burden to establish the existence of the rule and that the claimant was aware of the rule. Here, Employer does not have a specific rule prohibiting employees from engaging in loan transactions with each other. The rule in question, which prohibits "operating or acting in any manner that is contrary to the best interests of Employer," is so general as to be meaningless to this appeal. See UCBR v. Bacon, 361 A.2d 505, 507 (Pa. Cmwlth. 1976) (employer did not show conscious disregard of a policy that "actually sets no real standards of behavior or expectations of the employee which we could say that this claimant had consciously violated.") Claimant testified that he did not know there was a policy prohibiting him from soliciting loans from co-workers, and he did not believe that asking another employee for a loan harmed Employer’s interest in any way. Employer provided no evidence to the contrary. We conclude that the Board erred in determining that Claimant knowingly violated a work policy.


- willful misconduct - The court held that claimant's conduct did violate the standards of behavior which the employer had a right to expect of an employee, citing Ravenell v. UCBR, 377 A.2d 1297 (Pa. Cmwlth. 1977), where the manager of elderly, low-income housing borrowed money from a tenant. As there, the claimant here abused his position of authority and power by using his position of authority in an unseemly way. He may not have used overt threats or direct coercion, but that fact is not dispositive of the issue. Claimant held the upper hand in the relationship with the employees he supervised. His request for a loan made at least one employee uncomfortable enough to report Claimant’s request to Claimant’s supervisor. There is unspoken, and implicit, coercion when a boss makes a request for a significant loan of an employee under his supervision. Claimant’s misuse of his position as a supervisor violated the standards of behavior his Employer had a right to expect. Claimant’s importuning of subordinates for a loan constituted willful misconduct


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