Friday, April 26, 2013

UC - vol. quit - resignation - revocation of

Bier v. UCBR – Cmwlth. Court – Apriol 26, 2013 – unpublished memorandum opinion

This Court has held that “[a] claimant who stated that he quit and walked off the job is not considered an employee thereafter.”  Spadaro v. UCBR, 850 A.2d 855, 859 (Pa. Cmwlth. 2004).  We conclude, based on the totality of the circumstances as described above, that Claimant voluntarily quit his employment effective on May 14, 2012 and was no longer an employee thereafter. 

While there may be some circumstances where an employee may rescind a resignation after the fact, those circumstances are not present here. In Spadaro, we noted that “[a]n employee who revokes his resignation before the ‘effective date’ of his resignation and before the employer took steps to replace him is entitled to benefits.” Id. at 859. Claimant did not resign with an “effective date”; he quit, effective immediately, when he essentially told Employer that he was quitting, got up, left the room, and did not report to work thereafter. Accordingly, Claimant’s actions after May 14, 2012 do not alter his ineligibility for UC benefits under these circumstances.


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.

custody - appeal - discussion of statutory factors by trial court prior to appeal deadline

C.B. v. J.B. – Superior Court – Apriol 22, 2013

In this appeal, we are called upon squarely to determine the point in time at which a trial court must specify the reasons for its decision in a child custody case. We address this question under the “new” Child Custody Act (“the Act”), which our General Assembly enacted in November 2010, and which took effect in January 2011. In this case, C.B. appeals the custody order entered on October 24, 2011. That order awarded primary physical custody of two childrento their paternal uncle,from whom appellant Aunt is separated.

To decide this appeal, we must address the timing of the trial court’s application of the sixteen custody factors delineated in the Act. We hold today that the Act requires a trial court to address each of these factors prior to the deadline by which a litigant must file a notice of  appeal, and preferably at the time the custody order is issued or shortly thereafter. We apply this holding prospectively, as the trial court here was not bound to anticipate this construction of the Act.


contracts - duty of good faith and fair dealing

MYSERVICESFORCE v. American Home Shield – ED Pa. – April 24, 2013

 “Courts have defined the duty of good faith as [h]onesty in fact in the conduct or transaction concerned, adopting the definition set forth in Section 1201 of the Uniform Commercial Code, 13 Pa.C.S. 1201.”3 Southeastern Pennsylvania Transp. Auth. v. Holmes, 835 A.2d 851, 858 (Pa. Commw. Ct. 2003) (citing Creeger Brick Building Supply Inc. v. Mid-State Bank Trust Co., 560 A.2d 151, 153 (Pa. Super. Ct. 1989)); see also Cavanaugh v. Avalon Golf Props., LLC., No. E2010–00046–COA–R3–CV, 2011 WL 662961, at *8 (Tenn. Ct. App. Feb. 24, 2011) (same).

Courts have further recognized that, while “‘a complete catalogue of types of bad faith is impossible,’” bad faith may include: “‘evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.’” Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. Ct. 2005) (quoting Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992)); see also Sanders v. Breath of Life Christian Church, Inc., No. W2010–01801–COA–R3–CV, 2012 WL 114279, at *21 (Tenn. Ct. App. Jan. 13, 2012) (“Based on the duty of good faith, this Court has recognized that each party to a contract is ‘under an implied obligation to restrain from doing any act that would delay or prevent the other party’s performance of the contract’ and that ‘[e]ach party has the right to proceed free of hindrance by the other party.’” (quoting ACG, Inc. v. Southeast Elevator, Inc., 912 S.W.2d 163, 168 (Tenn. Ct. App. 1995)). Nonetheless, “‘the common law duty of good faith does not extend beyond the agreed upon terms of the contract and the reasonable contractual expectations of the parties.’” Dick Broad. Co. v. Oak Ridge FM, Inc., ___ S.W.3d ___, 2013 WL 175491, at *9 (Tenn. 2013) (quoting Wallace v. Nat’l Bank of Commerce, 938 S.W.2d 684, 687 (Tenn. 1996)).
Consequently, “‘[t]he implied obligation of good faith and fair dealing does not . . . create new contractual rights or obligations, nor can it be used to circumvent or alter the specific terms of the parties’ agreement.’” Id. (alterations in original) (quoting Lamar Adver. Co. v. By-Pass Partners, 313 S.W.3d 779, 791 (Tenn. Ct. App. 2009). See also John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 706-07 (Pa. Super. Ct. 2003) (stating that, since the “‘obligation of good faith is tied specifically to and is not separate from the [express] duties a contract imposes on the parties,’ it cannot imply a term not explicitly contemplated by the contract” (alteration in original) (quoting Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 434 n.11 (Pa. 2001))).