UC - appeal - time - no postmark

Quinn v. UCBR – Cmwlth. Court – January 23, 2015 (2-1)

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1238CD14_1-23-15.pdf?cb=1

 

Appeal dismissed as untimely where the

 

            - envelope was not postmarked

 

            - appeal was received at UCBR one day beyond appeal deadline.

 

Relevant statute is 43 PS sec.  821(e), which makes a determination final, unless an appeal is filed “within fifteen calendar days after” service of the notice of determination.   The relevant regulation, 34 Pa. Code 101.82(b)(1), makes the appeal date the date of receipt at the Board, if the appeal is filed by US Mail and the envelope does not bear any postmark.

 

The court said that it “appreciate[d] the logic of the Claimant’s argument”* that the appeal must have been mailed on or before the 15^th day, since it was received by the UCBR on the 16^th day, but that it had to follow the regulation, citing cases.   
 

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* Cold comfort.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

UC - voluntary quit - loss of commuting benefit

Morgan v. UCBR – Cmwlth. Court (en banc, 5-2) – January 14, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1896CD13_1-14-15.pdf?cb=1

 

Claimant quit his job when his employer unilaterally and without warning took away his employer-provided transportation, which had a value of about $90 day, which was about ½ of claimant’s earnings.  

 

The Court affirmed the UCBR’s denial of benefits, holding that the claimant had not explored alternatives before quitting.  The Board also found that the claimant “could commute with the employer’s director,” as he had done when he had first started working.  This finding was based on testimony of the employer’s manager that the director “can give you a ride home, you can, you can figure out something else, but you’re just not going to do it on the company dime anymore.”  The Court found that “the Board could logically and reasonably infer that Manager’s statement that Claimant could get a ride home with Director was a suggestion to commute with Director.”    The court also upheld the Board finding that Claimant had not explored alternative solutions to the transportation problem and the loss of 50% of his earnings before quitting.

 

Dissent

The dissent (Leavitt and Pelligrini) thought that the employer statement just concerned getting a ride home that single day, when claimant was at a work and was “deprived on the means to return home.  After that, Claimant had to ‘figure out something else’ without any financial support from Employer.”  A substantial reduction in pay constitutes a necessitous and compelling reason to leave employment and, thus, does not affect eligibility for unemployment compensation. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa. Cmwlth. 1995). “[W]here an employee benefit has special significance and intrinsic value to a claimant, an employer’s unilateral alteration of that benefit and corresponding reduction in compensation gives a claimant necessitous and compelling cause for terminating employment.” Id. Because there is “no talismanic percentage” for determining a substantial reduction, each case turns on its own circumstances. Id.

 

In Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624 A.2d 237, 238-39 (Pa. Cmwlth. 1993), six years after the claimant was hired, the employer notified her that it would no longer reimburse her health insurance premium of $235.16 per month. The loss of this reimbursement effected “a 14.2% reduction in earned compensation.” Id. at 240. We held that “the [e]mployer’s unilateral alteration of that benefit and corresponding reduction in compensation” constituted a necessitous and compelling reason to quit. Id. See also Chavez (Token) v. Unemployment Compensation Board of Review, 738 A.2d 77, 82 (Pa. Cmwlth. 1999); A-Positive, 654 A.2d at 302-03.

 

In this case, from the time of his initial hire in 2010 and throughout his employment Employer assumed the cost of Claimant’s commute. Claimant’s evidence established that the value of the Employer-provided vehicle, and reimbursement of fuel and tolls was approximately $90 per day.  Employer did not contest this figure. Claimant established that his gross salary at the time of his separation was $176 per eight-hour day.  On Claimant’s claimant’s last day of work, the employer unilaterally eliminated his commuting benefit without warning. Employer offered no evidence that the loss of Claimant’s benefit was negotiable or capable of revision.

 

Claimant was not obligated to continue working under Employer’s new terms. It is true, as the majority notes, that a claimant seeking to establish a necessitous and compelling reason for quitting must demonstrate, inter alia, that he made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). However, a unilateral reduction in compensation in and of itself provides a necessitous and compelling reason for quitting, if the reduction is substantial. See, e.g., Steinberg Vision Associates, 624 A.2d 237; Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376 (Pa. Cmwlth. 1981) (salary reduction of 25%); Ship Inn, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 913 (Pa. Cmwlth. 1980) (claimant’s $67.80 weekly salary reduced by $15). In these cases, this Court held that the claimants’ salary reductions were substantial and provided a necessitous and compelling cause to immediately quit. Claimant’s 50% reduction in compensation in the present case should compel the same result.

 

tax sale - statutory right to repayment agreement

Battisti v. Beaver Co. Tax Claim Bureau – Cmwlth. Court – December 1, 2014

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/733CD14_12-11-14.pdf?cb=1

 

Tax sale of $250,000 home for $234.72 tax delinquency overturned, because of

            - a violation of the tax sale law, obliging the TCB to affirmatively offer an installment repayment plan to a taxpayer who has paid 25% of the amount due, 72 PS 5860.603, as the homeowner did here, and

            - a violation due process, because the TCB repeatedly sent inaccurate and misleading notices to homeowner, and failed to tell her about the installment option, Darden v. Montgomery Co. TCB, 629 A.2d 321 (Pa. Cmwlth. 1993).

 

The purpose of the Real Estate Tax Sale Law is to ensure the collection of taxes, not to deprive citizens of their property or to create investment opportunities for those who attend tax sales. . . . . People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. . . . .

 

The focus in a case like this is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the Bureau comply with the requirements of the statute.  Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth. 2003). A failure by a tax claim bureau to comply with each and every statutory requirement will nullify a sale.

 

Section 603 of the Real Estate Tax Sale Law provides that a scheduled tax sale may be stopped by the taxpayer’s payment of 25% of the amount of taxes due and agreement to an installment plan for the remainder.   So long as said agreement is being fully complied with by the taxpayer, the sale of the property covered by the agreement shall be stayed. 72 P.S. §5860.603. The tax claim bureau must advise the taxpayer of the Section 603 option because its failure to do so “would deprive the owner of his or her property without due process of law.”

 

Stated otherwise, it is not the taxpayer’s burden to request an installment agreement.  The obligation of a tax claim bureau to notify a taxpayer of the right to an installment plan upon receipt of at least 25% of what is owed has been recently reviewed and underscored.  Where an owner has paid at least 25% of the taxes due, the tax authority is required to inform the owner of the option to enter into an installment agreement and that a failure to do so is a violation of the owner’s due process rights. Reilly v. Susquehanna Cnty. Tax Claim Bureau, 904 A.2d 49, 53 (Pa. Cmwlth. 2006); York v. Roach, 163 Pa. Cmwlth. 58, 61-62, 639 A.2d 1291 (1994); Darden v. Montgomery Cnty. Tax Claim Bureau, 157 Pa. Cmwlth. 357, 629 A.2d 321, 323-24 (1993).

 

Moreover, due process requires meaningful notice of a tax liability.  Here there was a multitude of inaccurate and conflicting notices.

 

Earlier in the case, the Cmwlth. Court reversed the trial court's grant of judgment on the pleadings to the TCB, holding that an evidentiary hearing was required under the tax sale law, Battisti v. TCB, 76 A.3d 111 (Pa. Cmwlth. 2013).

 

tax sales - documentation required of efforts to give notice

Appeal of Tufarolo – Cmwlth. Court – December 31, 2014 – unreported memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/668CD14_12-31-14.pdf?cb=1

Tax sale of residential property overturned because of failure of county tax claim bureau to document  its efforts to give notice to property owner, as required by 72 P.S. sec. 5860.607a, even though tht TCB did comply with the statutory notice requirements.  The statute states that "a notation shall be placed in the oroperty file describing the efforts made [to serve notice of the tax sale] and the results thereof…."  It was undisputed the such notations were not made.

"Accurate documentation is essential to inform anyone reviewing the rile about the Bureau's complaint, or lack thereof.  The public is entitled to rely on the correctness and completeness of the Bureau's property files.  The Bureau’s failure to document its additional notification efforts in the property file, regardless of their success, constitutes grounds to set aside the sale of the Property. Our precedent requires strict construction of Section 607.1, compelling a taxing bureau’s adherence. Steinbacher v. Northumberland Cnty. Tax Claim Bureau, 996 A.2d 1095 (Pa. Cmwlth. 2010) (en banc); Rice v. Compro Distrib., Inc., 901 A.2d 570, 577 (Pa. Cmwlth. 2006); Smith v. Tax Claim Bureau of Pike Cnty., 834 A.2d 1247, 1253 (Pa. Cmwlth. 2003) (citing Tracy v. Chester Cnty. Tax Claim Bureau, 489 A.2d 1334, 1339 (Pa. 1985)).

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If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.