UC - willful misconduct - employer sick leave policy not applicable to claimant out on FMLA leave

Phila. Parking Authority v. UCBR – Cmwlth. Court – November 17, 2015 – unreported memorandum opinion

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http://www.pacourts.us/assets/opinions/Commonwealth/out/609CD15_11-17-15.pdf?cb=1

 

Not reasonable or proper to apply employer’s sick leave policy to a claimant who was out on FMLA leave, re claimant’s failure to call employer sick line to let ER know she was leaving the house for brief period.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - voluntary quit - factual matrix at time of separation

Life Pittsburgh v. UCBR – Cmwlth. Court – November 20, 2015 – unpublished memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/230CD15_11-20-15.pdf?cb=1

 Certified Nursing Assistant (CNA) had good cause to quit her job after a series of incidents at work that caused her to have a reasonable fear for her health and safety.

 Factual matrix at time of separation cannot be arbitrarily restricted –  The factual matrix at the time of separation determines whether claimant had good cause to quit.  in this case, that  included not only the last incident but several in the month prior to claimant’s voluntary quit, all of which she had addressed with the employer.  Cf., Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998).   The events leading to claimant’s resignation took place over a relatively short period of time, and claimant did seek to remedy the problems through available channels. Cf., Umedman v. UCBR, 52 A.3d 558, 564 (Pa. Cmwlth. 2012). 


The last incident was not by itself the precipitating event for her resignation, but the culmination of a pattern of events that produced real and substantial pressure upon Claimant and which Employer failed to address. Collier Stone Co. v. UCBR, 876 A.2d 481, 485 (Pa. Cmwlth. 2005).  The claimant need not notify the employer of each and every incident so long as a claimant has given the employer the opportunity to understand the problem and take steps to resolve it.  Moreover, the Board’s consideration of recent events, not just the last one, goes directly to the claimant’s burden to demonstrate that she made a reasonable effort to maintain employment by advising Employer of the conditions of her employment putting her at risk, that she provided Employer with the opportunity to resolve the problems, and that Employer failed to do so.

The purpose of the rule that the Board restrict itself to the “factual matrix at the time of separation,” is to prohibit both parties from introducing into the Board’s inquiry events, facts or issues from the entirety of the employment relationship regardless of how irrelevant or removed from the time of separation. Hussey, 718 A.2d at 900; Lehigh County Community College v. UCBR, 473 A.2d 727, 729-730 (Pa. Cmwlth. 1984).  Under Employer’s interpretation of the rule, which would focus only on the events immediately preceding termination from employment, claimants and employers would be severely inhibited in their ability to satisfy or rebut their respective evidentiary burdens by an arbitrarily restrictive temporal window. Employer’s interpretation would also bar claimants from receiving unemployment compensation who have a necessitous and compelling cause to leave employment based upon a pattern of harassment. [citations omitted]

Substantial evidence supported Board’s findings that claimant had good cause to quit

The facts found by the Board show that claimant was threatened, attempted to seek assistance from employer to address the threats, and that employer failed to provide adequate assistance or support to Claimant. Each fact is supported by substantial evidence in the form of claimant’s credible testimony, which was unrebutted by the employer. 

Claimant’s belief that her working conditions were unsafe was not speculative. Compare Green Tree School, 982 A.2d at 578 (subjective fear that autistic students may become unruly with a reduced behavioral management staff was insufficient to establish real, objective safety fears); Hoy, 391 A.2d at 1145 (claimants’ concern for their safety was real and substantial where employer failed to institute adequate safety measures at convenience store following string of robbery-homicides at similar businesses in the area); Rapid Pallet v. UCBR, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (faulty condition of employer’s truck constituted safety concerns that created real and substantial pressure to resign from employment). The Board did not err in concluding that Claimant satisfied her burden to demonstrate cause of a necessitous and compelling nature to voluntarily resign her employment.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

 

FDCPA - debt collector v. creditor - initial communication

McDermott v. Nationstar Mortgage –  EDPa. – November 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0959P.pdf

 

Defendant’s motion to dismiss Plaintiff’s FDCPA action denied, because

 

            - defendant acquired loan while it was in default, therefore it was a debt collector

 

            - defendant’s initial communication did not identify itself as a debt collector attempting to collect a debt.

 

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

name change - child - best interest - burden of proof

T.W. v.  D.A. – Superior Court – November 10, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A23026-15o%20-%201024312285635577.pdf?cb=1

 

The statute pertaining to name changes provides: “The court of common pleas of any county may by order change the name of any person resident in the county.” 54 Pa.C.S.A. § 702(a). Other than providing for the granting of a petition in the absence of any lawful objection, the statute sets forth no standards for the court’s exercise of its discretion. Our Supreme Court has directed the lower courts to exercise their discretion, in name change cases, in such a way as to “comport with good sense, common decency and fairness to all concerned and to the public.” Petition of Falcucci, 50 A.2d 200, 202 (Pa. 1947).

 

best interest of child

When considering a contested petition to change the name of a minor child, the best interest of the child is the standard by which a trial court exercises its

discretion. See Grimes, 609 A.2d at 161 (Pa. 1992) (citing comprehensive list of jurisdictions that apply best interest of child standard).  In adopting

the “best interests of the child” standard, our Supreme Court stated:

 

The statutory scheme sets forth no criteria for the court toconsider when exercising its discretion upon a petition for

change of name. The only prohibition within the statute appears at § 705: “Any person violating the provisions of

this chapter for purpose of avoiding payment of taxes or other debts commits a summary offense.” . . . Specific

guidelines [for a child’s best interests] are difficult to  establish, for the circumstances in each case will be

unique, as each child has individual physical, intellectual,moral, social and spiritual needs. However, general

considerations should include the natural bonds between parent and child, the social stigma or respect afforded a

particular name within the community, and, where the child is of sufficient age, whether the child intellectually

and rationally understands the significance of changing his or her name.

 

Id. at 160, 161 (emphasis added). The Court further stated: “Beyond requiring compliance with the notice provisions, the statute provides no additional guidance for courts considering petitions for change of name.” Id. at 160 (quoting Petition of Falcucci, supra at 202. See also In re Change of Name of E.M.L. to E.M.S., 19 A.3d 1068 (Pa. Super. 2011).

 

burden of proof

In In re: C.R.C., 819 A.2d 558 (Pa. Super. 2003), the court stated that the party petitioning for the minor child’s change of name has the burden of coming forward with evidence that the name change would be in the child’s best interest. Id. at 560. Further, where a petition to change a child’s name is contested, the court must carefully evaluate all of the

relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interest. Id.; see also Petition of Christjohn, 428 A.2d 597 (Pa. Super. 1981).

 

In this case, the trial court concluded that Father did not meet his burden of showing that the proposed name change was in the child’s best interests. Instead, the court determined that Father sought to change the child’s name to further his own interest in the survival of his surname. Those findings are amply supported by the evidence.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

 

UC - fault overpayment - # penalty weeks - discretion - mitigating circumstances

Williams v. UCBR – Cmwlth. Court – November 10, 2015 – unreported memorandum opinion*

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/383CD15_11-10-15.pdf?cb=1

 

Claimant admittedly filed false claims for benefits, but later herself brought that matter to the Department’s attention.

 

Claimant’s admission of wrongdoing does not excuse a fault overpayment

The fact that Claimant brought the improper benefits to the Department’s attention after the fact on her own initiative, however, does not alter the fact that the overpayment was obtained by misrepresentation and is not a ground for reversing a fault overpayment. McKean v. UCBR, 94 A.3d 1110, 1114-15 (Pa. Cmwlth. 2014) (upholding fault overpayment despite fact that claimant notified Department of unreported income one month after the last overpayment).

 

15% penalty v. penalty weeks

In addition to fault overpayment, under Section 801 of the Law, a claimant who “makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase compensation” is subject to penalty weeks disqualifying her from receiving future benefits and a penalty of 15% of the overpaid benefits that she received. 43 P.S. § 871(b),(c);4 Chishko, 934 A.2d at 178.

 

The Board’s findings that Claimant’s conduct constituted knowing misrepresentation and that it was done to obtain benefits that she was not eligible to receive and that she obtained the benefits by fraud satisfy the requirements for imposition of these penalties. Castello, 86 A.3d at 299; Chishko, 934 A.2d at 178.  The Board therefore did not err in affirming the 15% penalty imposed by the Department. Section 801(c) provides that the 15% penalty is mandatory where the Board has found that a claimant knowingly made a false representation concerning her eligibility or knowingly failed to disclose such information to obtain benefits. 43 P.S. § 871(c) (“Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase compensation … and as a result receives compensation to which he is not entitled shall be liable to pay to the Unemployment Compensation Fund a sum equal to fifteen per centum (15%) of the amount of the compensation”)

 

Penalty weeks, however, are not automatic upon a finding of conduct sufficient to support a penalty. Section 801(b) provides that a claimant who has made knowing misrepresentations or omissions to obtain benefits “may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment.” 43 P.S. § 871(b).  (emphasis added) Here, the Board found that Claimant reported the fraudulent claims to the Department in 2011, and Department records showed that Claimant expressed a willingness to repay the benefits in 2011, but was told to await an overpayment letter that the Department did not send.  

While self-reporting does not preclude the imposition of penalty weeks, McKean, 94 A.3d at 1114-15, these facts are relevant to the seriousness of Claimant’s misconduct and therefore can bear on the discretionary determination as to whether penalty weeks are appropriate and whether the number of penalty weeks imposed should be less than maximum permitted by Section 801(b). [emphasis added]

 

The Department imposed and the Board upheld the maximum number of penalty weeks permitted for this 11-week overpayment, 13 penalty weeks, with no consideration of the unusual mitigating circumstances in this case. The only reason given by the Department for its imposition of the maximum penalty weeks was that Claimant knew that she was ineligible when she filed for benefits and was therefore subject to penalty weeks.  The referee and the Board held only that “penalty weeks” were “appropriate,” and did not discuss their finding that Claimant reported the fraud to the Department in 2011 or rule on the issue whether imposition of the maximum penalty weeks was appropriate.

 

Because the Board did not consider relevant facts established by both its findings and the record, and did not address the issue of whether the maximum penalty weeks were properly imposed, the Board’s affirmance of the imposition of 13 penalty weeks must be vacated and the issue of penalty weeks must be remanded to the Board. See Dorn v. UCBR, 866 A.2d 497, 501-02 (Pa. Cmwlth. 2005) (remand required where Board failed to make necessary findings or failed to address evidence); Kowal v. UCBR, 465 A.2d 1322, 1323 (Pa. Cmwlth. 1983) (remand required where Board failed to address issue and make necessary findings).

 

The court thus affirmed the Board’s order on ineligibility, the fault overpayment and the imposition of a 15% penalty, but remanded the issue of penalty weeks to the Board to consider whether and how many penalty weeks are appropriate.

 

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a); Pa. R.A.P.  3716 [45 Pa.B. 3975; July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

employment - wrongful termination - public policy - health care worker - excessive overtime

Roman v. McGuire Memorial – Superior Court – November 9, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-S55021-15o%20-%201024298355629999.pdf?cb=1

 

Held:  An employee fired for not working mandatory overtime in a health care context has an implied right of action for wrongful termination, even though the relevant statute, Prohibition of Excessive Overtinme in Health Care Act, 43 P.S. 932.1 et seq.  (Act 102), does not provide a statutory remedy and there are no final regulations.    Act 102 establishes a clear public policy protecting health care workers from the kind of action the employer is alleged to have taken in this case.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - representation by suspended attorney

Powell v. UCBR – Cmwlth. Court – November 6, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1704CD14_11-6-15.pdf?cb=2

 

Claimant was represented by an attorney whose license to practice law had been suspended.   At the hearing on the merits, the referee refused to let the attorney take part, only observe, after which the referee entered a decision denying benefits, later affirmed by the Board. 

 

Citing Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), and In the Matter of David Louis Bargeron, 130 DB 2005 (Pa. July 27, 2011)  the court reversed and remanded for a new hearing.  The court said that the question in the case was not whether the suspended attorneys should be sanctioned as a matter of  discipline by the Pennsylvania Supreme Court for violating Disciplinary Rule 217(j). The question is whether the Board or referee may enforce Disciplinary Rule 217(j) to deprive a claimant of his right to representation of his choice under Section 214 of the Law, which does not preclude a “suspended attorney” from serving as a claimant representative.  The court held that the referee and Board could not do so.

 

The court noted that “the jurisdiction of the Disciplinary Board and the Supreme Court to prosecute and enforce the Disciplinary Rules is “exclusive.” Pa. R.D.E. 201(a). As Bargeron illustrates, both have taken steps to discipline lawyers who violate Rule 217(j) by representing clients in unemployment compensation matters. Here, the Board ignored its own governing statute and attempted to step into the shoes of the Disciplinary Board and the Supreme Court, effectively sanctioning Claimant for Mr. Ostrowski’s violation of the Disciplinary Rules by denying Claimant representation at the second hearing.

 

Should this situation arise again, it would be more appropriate, and consistent with both Disciplinary Rule 217(j) and Section 214 of the Law, for the referee and the Board to advise the suspended attorney that the suspended attorney’s representation of the claimant would be a violation of Disciplinary Rule 217(j). If the suspended attorney chooses, nonetheless, to continue the representation, the referee and Board must allow it under Section 214 of the Law, but they may refer the suspended attorney to the Disciplinary Board for further action consistent with Bargeron. If the suspended attorney chooses to withdraw, then the referee and the Board should afford the claimant an opportunity to find alternative representation.

 

The court vacted the order of the Board and remanded the case to the Board for a new hearing.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - appeal - collateral attack by employer via request for relief from charges

Narducci v. UCBR – Cmwlth. Court – November 4, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/104CD15_11-4-15.pdf?cb=1

 

This case was remanded to the Board, to allow it to find the necessary facts needed to decide the case, but there is extensive and important discussion about wthe employer requested for relief from charges filed beyond the time for an appeal, and if so, whether that is an impermissible collateral attack on the initial determination of claimant eligibility.

 

The UCSC process in this case was less than desirable, and the referee and UCBR failed to find critical facts, leaving the court without the fact findings it needed to decide the case

What is clear is that a) the Claimant got UC benefits starting in October 2013, b) the employer did not file an appeal, c) the employer later filed an request for relief from charges (RRFC), and d) the UCSC made findings in August 2014 that claimant was not eligible for those benefits and was subject to a fault overpayment. 

 

Claimant appealed and at the hearing, his counsel argued that a) the UCSC determinations were untimely and violated claimant’s rights, b) the UC authorities did not have the power to re-open the 2013 UC claim in 2014; c) the employer did not appeal the October 2013 determination or challenge it in any way until July 2014.

 

Again, because critical fact-finding was missing, the Court ordered a remand.  However, it engaged in an extended discussion of the issues surrounding the UCSC determination process and the possibility that the employer’s RRFC was an impermissible collateral attack on the initial determination of claimant eligibility.

 

Here is the court’s discussion of these issues –

 

Section 501(a) of the Law provides that, upon receiving an application for UC benefits, the Department must

 

promptly examine each application for benefits and on the basis of the facts found by it shall determine whether or not the application is valid. Notice shall be given by the department in writing to the claimant and each base-year employer of the claimant, stating whether or not the claimant is eligible under section four hundred and one (a),[6] and, if declared eligible thereunder, the weekly benefit rate and the maximum amount of compensation payable. . .

 

43 P.S. § 821(a) (emphasis added). Notice that an application for UC benefits has been filed must also be given to the claimant’s last employer. Section 501(b) of the Law, 43 P.S. § 821(b). Under Section 501(c)(1) of the Law, the Department is required to “promptly examine each claim . . . for compensation and on the basis of the facts found by it shall determine whether or not the claim is valid.” 43 P.S. § 821(c)(1). The Department is required to provide notice to the claimant if his or her claim is determined to be invalid and to provide notice to the employer if the employer provided information in writing to the Department raising a question regarding the claimant’s eligibility for any reason other than his or her failure to comply with Section 401(a) of the Law. Section 501(c)(2), (3) of the Law, 43 P.S. § 821(c)(2), (3). Pursuant to Section 501(e), an employer or a claimant may appeal the initial notice of determination regarding the claimant’s eligibility for UC benefits within fifteen days of receiving the notice from the Department. 43 P.S. § 821(e).7 Should the Department issue a revised notice of determination without an  appeal being taken, such revision must occur within the fifteen day appeal period. Garza v. UCBR, 669 A.2d 445, 447 (Pa. Cmwlth. 1995). Section 509 of the Law provides that “[a]ny decision made by the department or any referee or the board shall not be subject to collateral attack as to any application claim or claims covered thereby or otherwise be disturbed, unless appealed from.” 43 P.S. § 829. Thus, if no revision occurs and no appeals are taken within fifteen days of the determination of eligibility, “the determination becomes final and the Board loses jurisdiction to consider the matter.” Pennsylvania Turnpike Commission v. UCBR, 991 A.2d 971, 974 (Pa. Cmwlth. 2009).

 

 

Editor’s note:   I think it is significant that the Court chose to included the above in its opinion.  It certainly didnt have to, in order to decide the case. 

________________

 

An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

 

 

UC - late appeal - nunc pro tunc rejected

Suber v. UCBR – Cmwlth. Court – November 2, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/163CD15_11-2-15.pdf?cb=1

 

Court affirmed the UCBR decision to dismiss an appeal that was filed late, because it was sent to the wrong fax number by the office of the claimant’s state senator, to whom he’d gone for assistance in filing the appeal.  The Board found as a fact that the senator’s employee faxed the document well within the applicable appeal deadline, but to the wrong fax #.   After inquiry, the appeal was faxed to the proper # and was received by the Board on October 9.  The appeal deadline was September 22.

 

The court held that that “fifteen-day time limit for filing an appeal from a Department determination is mandatory. UGI Utilities, Inc. v. UCBR, 776 A.2d 344, 347 (Pa. Cmwlth. 2001). The UCBR’s regulations permit several methods for filing an appeal, including by fax. 34 Pa. Code §101.82(b)(3). However, “a party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.” 34 Pa. Code §101.82(b)(3)(ii) (emphasis added).” 

 

The court rejected the nunc pro tunc argument.  “An appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct, either by a third party or by the appellant.” Mountain Home Beagle Media v. UCBR, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). The burden to justify an untimely appeal is heavy. Blast Intermediate Unit #17 v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). “An appellant may satisfy this heavy burden in one of two ways. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, he can show non-negligent conduct beyond his control caused the delay.” Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). Here, Claimant maintains that he gave the senator’s employee the correct fax number and that his late appeal was attributable only to the negligent acts of a third party, the senator’s employee.

 

Both parties cite to this court’s unreported decision in Stevens v. UCBR, (Pa. Cmwlth., No. 1353 C.D. 2013, filed April 3, 2014).   In Stevens, the claimant’s counsel misdialed and faxed the appeal to an incorrect number. Slip op. at 3-4. This court agreed with the UCBR that counsel’s mistake in sending the appeal letter to the incorrect fax number did not qualify for nunc pro tunc relief. Id. at 8-9. This court concluded that “this is not the type of non-negligent conduct that was beyond the control of [the] [c]laimant or [the] [c]laimant’s attorney. The transmission verification report . . . clearly shows that the appeal was faxed to an incorrect number.”    

 

Similarly, in this case, the transmission verification reports show that Claimant’s appeal was faxed to an incorrect number. As in Stevens, Claimant failed to verify that the fax was sent to the correct number. [n. 6 - In Wright v. Unemployment Compensation Board of Review, 41 A.3d 58, 60 (Pa. Cmwlth. 2011) (en banc), in determining that the claimant filed a timely appeal, this court considered a document from the claimant’s telephone carrier showing that a fax was successfully transmitted to the phone number listed in the notice of determination on the date in question.]

 

Nonetheless, Claimant argues that Stevens is distinguishable because the mistake here was not caused by counsel but by a third party who was not part of the litigation process. Arguing that he was not negligent, Claimant maintains that an appeal nunc pro tunc is warranted. See Walker v. UCBR , 461 A.2d 346-47 (Pa. Cmwlth. 1983) (holding that the failure of a post office to forward the notice of decision to appellant’s new address warranted nunc pro tunc appeal).

 

Here, Claimant chose to file an appeal via fax and accepted the risk that the appeal would not be properly or timely filed. See 34 Pa. Code §101.82(b)(3)(ii). As in Stevens, Claimant, via a third party, faxed the appeal to an incorrect number and failed to check the transmission verification report. These actions, whether performed by Claimant, counsel, or a third party, do not constitute non-negligent conduct warranting a nunc pro tunc appeal.

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admin. law - late appeal - unsuccessful electronic transmission - extraordinary circumstances - nunc pro tunc appeal allowed

Bureau Veritas North America v. PennDOT – Cmwlth. Court – November 3, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/99CD15_11-3-15.pdf?cb=1

 

appeal - unsuccessful email does not constitute filing

The unsuccessful sending of an email does not constitute filing with an administrative agency. Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286, 1289 (Pa. Cmwlth. 2009); McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 957-58 (Pa. Cmwlth. 2006). Moreover, the fact that the email reached DOT’s server does not constitute receipt by the head of DOT, with whom the protest must be filed. See Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1001-03 (Pa. Cmwlth. 2010) (appeal left before expiration of deadline in drop box in foyer of building when agency offices were locked was untimely because it was not filed until agency picked it up the next day).  BV cites no rule, regulation or decision of any court holding that unsuccessful electronic transmission constitutes the receipt or filing of a document. The authorities on which BV relies do not provide or hold that filing occurs at the time when an electronic transmission is rejected;

 

Nunc pro tunc appeal – unsuccessful electronic transmission – extraordinary circumstances

However, appellant’s authorities do allow unsuccessful electronic transmission as basis for nunc pro tunc relief despite the fact that the document was not received and filed at the time of the failed transmission. See Pa. R.C.P. No. 205.4 (e)(4)(ii) (“If a party makes a good faith effort to electronically file a legal paper but it is not received, accepted or filed by the electronic filing system, the court may order that the paper be accepted and filed nunc pro tunc upon a showing that reasonable efforts were made to timely present and file the paper”); Phoenix Global Ventures, LLC v. Phoenix Hotel Associates, Ltd., 422 F.3d 72, 74, 76 (2d Cir. 2005) (court could “excuse” filing of motion one day beyond deadline where counsel “was assured” that filing was successful on the date of filing, within filing deadline, and was notified of rejection next day, after deadline expired); Dallas v. Platinum Health Care, LLC, (E.D. Mo., No. 4:14-CV-1377 (CEJ), filed Dec. 15, 2014), 2014 U.S. Dist. LEXIS 172735 at *3-*4 (late filing treated as timely based on “extraordinary circumstance” that prevented timely filing where counsel was notified on the last day for filing that electronically filed complaint had been received by court filing system and complaint was not rejected until the next day); Inwards v. North Dakota Workforce Safety & Insurance, 851 N.W.2d 693, 697-98 (N.D. 2014) (untimely perfection of appeal excused under electronic filing rule providing that “[o]n a showing of good cause, the court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems”).

 

Extraordinary circumstances – equitable considerations

BV has, however, shown that its protest should have been heard nunc pro tunc. A document filed with an administrative agency after the expiration of a jurisdictional deadline that would ordinarily bar its consideration can be accepted as filed nunc pro tunc where the filer shows that extraordinary circumstances caused the delay in filing. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000); Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996); H.D. v. DPW, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); Martin Media v. PennDOT, 727 A.2d 140, 142 (Pa. Cmwlth. 1999). The fact that the Procurement Code does not specifically address and provide for such relief does not preclude allowance of a protest nunc pro tunc. Nunc pro tunc relief is an equitable exception to strict deadlines that by their terms absolutely bar untimely filings. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); Martin v. DPW, 514 A.2d 204, 208-09 (Pa.  Cmwlth. 1986). Equitable considerations apply to Procurement Code protests and can permit a protest that would otherwise be untimely. Omnicare, Inc., 68 A.3d at 24 (agency would be estopped from enforcing Procurement Code seven-day time limit if it had misrepresented the deadline for filing a protest); Firetree, Ltd., 3 A.3d at 764 n.6 .

 

Elements for nunc pro tunc

The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay. Cook, 671 A.2d at 1131; C.E. v. DPW, 97 A.3d 828, 832 (Pa. Cmwlth. 2014);  H.D., 751 A.2d at 1219. BV has satisfied all of these requirements.

 

This case

The rejection of BV’s email protest constitutes extraordinary circumstances sufficient to warrant nunc pro tunc relief.   BV emailed its protest to DOT on November 20, 2014, before the expiration of the filing deadline. The fact that the email was sent at 6:33 p.m., after business hours, does not negate its timeliness. Absent a statute or regulation requiring that an electronic transmission be received by a particular time of day to be considered filed on that day, a document is timely filed if it is successfully electronically transmitted at any time before midnight of the filing deadline. Dumberth v. UCBR, 837 A.2d 678, 681-83 (Pa. Cmwlth. 2003) (en banc) (fax transmission successfully sent after business hours on last day of deadline was timely filed).  DOT does not contend that it has any regulation requiring that protests or other filings be received by the close of business to be treated as filed on the day that they are actually received. Compare 52 Pa. Code § 1.11(a)(4) (providing that documents are deemed filed with the Public Utility Commission “[o]n the date stated on the confirmation of receipt from the Commission’s electronic filing system, when the time shown is prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America) and … the Commission offices are open,” but that “[w]hen a document is filed electronically when the offices of the Commission are closed, the document will be deemed to be filed at the time the offices next open”).

 

BV had reason to believe that its timely email was a proper method of filing its protest. BV understood from its dealings with DOT that DOT permitted filing by email.  DOT does not contend that its regulations or the Procurement Code or any other applicable regulations or statutes prohibit or restrict the filing of Procurement Code protests by email or advise filers that they utilize email transmission at their own risk. Indeed, DOT admitted at oral argument that it accepts protests filed by email. This case thus stands in sharp contrast to the decisions where this Court has held that unsuccessful email filing did not constitute grounds for nunc pro tunc relief. See Roman-Hutchinson, 972 A.2d at 1289 (failure of email transmission did not constitute extraordinary circumstances because the agency’s regulation expressly provided that “[a] party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed”) (quoting 34 Pa. Code § 101.82(b)(4)) (emphasis omitted); McClean, 908 A.2d at 959.

 

Email rejected due to DOT formatting restriction – zip files – no notice to appellant

While BV’s email was rejected by DOT’s server and was therefore not received by DOT on November 20, 2014, the rejection was due to a DOT formatting restriction, not to any error in address or any malfunction in BV’s transmission.   BV had no notice of DOT’s formatting restriction. BV was unaware that DOT’s server does not accept .ZIP files.  DOT does not contend that its regulations prescribe format requirements for email filings or submissions. Nor does DOT contend that any of its communications to bidders or procurement policies or guidelines advise parties of format restrictions on email submissions or that BV had any notice that .ZIP file documents would not be accepted. Moreover, DOT’s failure report did not advise BV of the reason for the rejection of the email.  Given the absence of any notice by DOT of its restriction on email format, the rejection of BV’s timely sent email protest  constitutes extraordinary, non-negligent circumstances that delayed the filing of BV’s protest.

 

There is no dispute that BV satisfied the other two requirements for nunc pro tunc relief. BV inquired into the reasons for the rejection of its email and successfully resent and filed its protest by email on November 21, 2014, the next day, only one day after the deadline.  There is no claim by DOT that the one-day delay caused it any prejudice. To the contrary, the only arguments that DOT has asserted against BV’s request for nunc pro tunc relief are the contentions that such relief cannot be granted in Procurement Code protests and that BV has not shown extraordinary circumstances.

 

Because the Secretary erred in denying BV’s request for leave to file its protest nunc pro tunc, we reverse the Secretary’s dismissal of the protest as untimely and remand this matter to the Secretary for consideration of the protest on the merits.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

Social Security - attorney fees - sec. 406 - 25% cap

Black v. Colvin – ED Pa. – November 2, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0931P.pdf

 

The issue presented in this Social Security case is whether the total award of attorneys’ fees to the attorney who represented the claimant at the administrative level

and to another attorney who represented him on judicial review may exceed 25 percent of the claimant’s past-due benefits. It is an issue that has divided the circuit courts of

appeals, and one the Third Circuit has yet to decide.

 

Counsel who successfully represented the plaintiff on judicial review has moved for approval of $18,631.25 in attorney’s fees under § 406(b) of the Social Security Act

(“Act”). When combined with the $12,687.50 that counsel who had represented theclaimant before the agency has requested under § 406(a), the total requested attorney’s

fees exceeds 25 percent of the claimant’s past-due benefits by $6,941.65.

 

We conclude that the 25 percent cap applies only to fees awarded under § 406(b) and does not apply to the aggregate amount of attorney’s fees awarded under both §§ 406(a) and

(b).

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If the case is old, the link may have become stale and may not work, but you can use the case name and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - appeal - nunc pro tunc - breakdown in admin. process

Petro v. UCBR – October 19, 2015 – Cmwlth. Court – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1446CD14_10-19-15.pdf?cb=1

 

Late appeal allowed because of breakdown in administrative process.

 

The Referee issued two decisions holding that Claimant’s appeals were untimely. Employer then wrote to the Board that Claimant’s separation from employment was due to a lack of work and that its earlier report that it was due to misconduct was incorrect, but the Board affirmed the Referee’s decisions.

 

The Board erred in denying his appeal nunc pro tunc  ,because there was a breakdown in the administrative process consisting of the UC Service Center twice approving his application for benefits without any objection from Employer. One year later, after benefits had ceased, Employer submitted inaccurate information about the reason for one of several separationss fro employment. Further, Employer acknowledges that its information was inaccurate. There was no misrepresentation on Claimant’s part. The Department’s delays in considering his eligibility for unemployment compensation created a breakdown in the administrative process.

 

Section 501(e) of the Law requires that an appeal from a notice of determination be filed within 15 days from the date the notice was delivered to the claimant. 43 P.S. §821(e).   However, appeals can be accepted nunc pro tunc, or “now for then,” after the 15-day period under certain narrow circumstances. Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appeal nunc pro tunc will be allowed where the late filing is caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent conduct of the claimant or his counsel. Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996).

 A breakdown in the administrative process occurs when “an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000). In the context of unemployment compensation appeals, an administrative breakdown occurs when, for example, “a referee’s decision is mailed to an incorrect address; adequate assistance is not provided to a claimant with cognitive impairment; or, an official misleads a litigant as to the proper procedure for filing an appeal.” Hessou, 942 A.2d at 198.

Here, there are gaps in the record that impede meaningful, effective appellate review. According to the Board, Claimant was issued a UC-44 determination that found Claimant eligible for benefits because the Department “received no information from Employer to the contrary.”

 

However, a remand is necessary because the record contains no records that might explain why the UC Service Center did not hear an objection from Employer on Claimant’s application when it was submitted in February 2013. The Department’s 2014 questionnaire to Claimant asked about his separation from employment, which was confusing because it was sent at a time when he was once again employed full-time by Employer.   A complete record is needed, including the request for relief from charges; the information submitted by Employer to the UC Service Center when Claimant applied for unemployment benefits in February 2013; and the paperwork referenced in Employer’s letter to the Referee. As the record currently stands, we are unable to ascertain whether there was a breakdown in the administrative process to allow Claimant to appeal nunc pro tunc. Remand is the appropriate remedy when effective appellate review cannot be done. Fontana v. Unemployment Compensation Board of Review, 454 A.2d 678, 679 (Pa. Cmwlth. 1983).

 

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - willful misconduct - actual cause of termination - waiver - "standard of conduct" - UCBR is fact-finder

Holdings Acquisition Co., dba Rivers Casino v. UCBR – Cmwlth. Court – 10-19-15 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/135CD15_10-19-15.pdf?cb=1

 

In this willful misconduct case, the claimant was found eligible (or as they like to say, not ineligible), because

 

            - employer claim in Cmwlth Court appeal was not raised before the referee or board, so it was waiver --   An employer “must prove that the act in question was the actual reason for the claimant’s discharge.” Browning–Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 561 A.2d 856, 857 (Pa. Cmwlth. 1989). Issues not properly raised before the Referee and the Board are waived on appeal. See Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981) (quoting Zakrzewski v. Unemployment Compensation Board of Review, 381 A.2d 503, 504 (Pa. 1978)) (holding that issue “is not properly before us” because it was not presented to Referee or Board).  Waiver is also embodied in Pennsylvania Rule of Appellate Procedure 1551(a) 

 

            - standard of conduct is “not an exact science” -  In Woodson v. Unemployment Compensation Board of Review, 336 A.2d 867 (Pa. 1975), the Supreme Court explained: “A determination of whether an employee has engaged in willful misconduct can ... only be made by considering what standard of conduct an employer reasonably requires. Standards expected by one employer may of course not be the standards of another employer. Willful misconduct cannot therefore be considered in a vacuum. It must be considered in relation to the particular employees and to the reasonable standards expected by a particular employer.”  Id. at 868 (emphasis added). Stated otherwise, the “standard of conduct” analysis is not an exact science.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and   Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)