Friday, September 14, 2012

UC - self-employment - findings on indiv. issues - notice of issues

Cooper v. UCBR - Cmwlth. Court - Sept. 7, 2012 - unpublished memorandum opinion

Lack of findings

Unfortunately, our ability to perform effective appellate review of whether Claimant is self-employed and ineligible for benefits pursuant to Sections 402(h) and 4(l)(2)(B) is hindered by the lack of factual findings made by the Board in this matter. Although it found that Claimant was free from the direction and control of ECI and Hilton, the Board issued no findings of fact regarding the individual factors necessary for making that determination. Additionally, the Board made no findings of fact regarding whether Claimant was customarily engaged in an independently established trade, occupation, profession or business. In fact, the Board did not address the second prong of Section 4(l)(2)(B) in determining that Claimant was ineligible for benefits as an independent contractor. Thus, we must remand this matter to the Board.

Each prong has a number of factors that will be considered to determine whether a claimant is self-employed. See, e.g., Tracy v. UCBR, 23 A.3d 612, 616 (Pa. Cmwlth. 2011) , , , ,"No single factor is controlling . . . and, therefore, the ultimate conclusion must be based on the totality of the circumstances." Resource Staffing, Inc. v. UCBR, 961 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, we recently have held that "the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business." Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011). . .. Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

Adequate notice of the issues - We have held that the Board’s regulations, including 34 Pa. Code § 101.107 (what issues can be considered on appeal) "are designed to prevent surprise to claimants." Sharp Equipment Co., 808 A.2d at 1026. Moreover, the Board may only consider what was "delineated in the Bureau’s determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited." Hanover Concrete Co. v. UCBR, 402 A.2d 720, 721 (Pa. Cmwlth. 1979). Thus, "where an applicant has been found ineligible for benefits, this Court will limit the hearing to the reason stated in the Bureau’s determination." Sharp Equipment Co., 808 A.2d at 1026 (second emphasis added).

We do not agree that a party’s due process rights of notice, an opportunity to be heard, and to defend are satisfied when, although a party is provided a general statement as to the section of the Law at issue, the Board bases its determination of ineligibility on a new legal theory that had not been raised or addressed in the prior proceedings or, most importantly, during the Referee’s hearing at which a party is supposed to have an opportunity to present evidence in support of his or her eligibility

While the overall legal issue has been whether Claimant was engaged in self-employment, the legal basis for that determination has differed at each stage of the proceedings in this matter.  A remand is also required for these reasons.


 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 - willful misconduct - email - threat - use of capital letters

Aversa v. UCBR – Cmwlth. Court – Sept. 13 2012   (2-1)

Neutral words are converted into threat by use of CAPITAL LETTERS

When claimant perceived he was wrongfully removed from a sales region, he wrote to the person who replaced him, stating: Hey Jim, you set me up pretty good … I WON’T FORGET IT.”  The employer fired him for threatening conduct.  The UCBR denied benefits.

The Board did not believe Claimant’s statement that he did not intend to convey a threat, but that credibility determination is not substantive evidence that Claimant did, in fact, intend a threat. An adverse credibility determination is not itself substantial evidence.

To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat.  The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat.  The manager did not consider the fact that capitalized letters in an e-mail are still quite small.

The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously.  The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.

The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.

In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.

Accordingly, we reverse