Thursday, May 14, 2015

UC - continuances


Magio v. UCBR – Cmwlth. Court  - MAY 14, 2015 – unreported memorandum decision

 


 

Held: Last minute request for continuance denied.

 

The UC regs, 34 Pa. Code §101.23(a) allows a continuance “only for proper cause and upon the terms as the tribunal may consider proper.” A claimant who desires a continuance due to his inability to attend a hearing has a duty to “immediately request a continuance in writing before the hearing.” Flores v. UCBR, 686 A.2d 66, 76 (Pa. Cmwlth. 1996) (citation omitted). The UC Regulations further provides that, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence.” 34 Pa. Code at §101.51.

 

In Cowfer v. UCBR, 534 A.2d 560, 562 (Pa. Cmwlth. 1987), we noted that “last-minute requests for continuances will not be viewed favorably by this Court.” Moreover, in Skowronek, 921 A.2d at 558, we reasoned that “[i]f counsel was unavailable due to a previously scheduled appointment, there is no explanation as to why the request was not made prior to 6:30 p.m. on the last business day before the hearing.” Even the four notices of hearing sent to Claimant advised: “If you cannot attend the hearing for any reason, you may request a continuance (postponement) of the hearing. You should do this as soon as possible.” (Notices of Hearing, 2/20/2014, at 3, C.R. Item No. 8.) (emphasis added).

 

In this case, not only was the continuance request filed shortly before the scheduled hearing, the reason given for the request was not because of an emergency or unexpected event. Instead, Claimant’s counsel stated that he could not attend because he was traveling abroad. Generally, such travel requires advance planning and counsel would know that he would be unavailable on the hearing date and should have requested a continuance much earlier, given that notices for the hearing were sent well in advance.

 

Given that the request for a continuance was received less than an hour before the scheduled time and was not because of an unexpected event, the Referee did not abuse his discretion in denying the continuance, and absent an abuse of discretion, we will not override a referee’s denial of a continuance. Steadwell v. UCBR, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983).

 

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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 - independent contractor


Checkum v. UCBR – May 14, 2015 – Cmwlth. Court – unreported memorandum opinion

 


 

Held : There is no evidence that Claimant was customarily engaged in an independently established trade, occupation, profession or business.  UCBR reversed.

 

Section 4(l)(2)(B),  43 P.S. § 753(l)(2)(B) (relating to self-employment), provides a two-prong test for determining whether an individual is an independent contractor or an employee. Kurbatov v. Dept. of Labor & Indus., 29 A.3d 66 (Pa. Cmwlth. 2011). It states in pertinent part:

 

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. §753(l)(2)(B)

 

The purpose of this section “is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Whether a claimant is an employee or an independent contractor under Section 4(l)(2)(B) is a question of law subject to our review. Stauffer v. UCBR, 74 A.3d 398 (Pa. Cmwlth. 2013).

 

An individual receiving wages for his services is presumed to be an employee. Thomas Edison State Coll. v. UCBR, 980 A.2d 736 (Pa. Cmwlth. 2009). Employer alone bears the heavy burden of overcoming the presumption of employment. Kurbatov.

 

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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/

 

 

taxpayer standing


Keith et al. v. Commonwealth, Dept. of Agriculture – May 13, 2015 – Commonwealth Court

 


 

Taxpayersheld to have had standing to challenge the Department of Agricultures exemption of nursing mothers from the statutory ban on metal strand flooring and from the statutory requirement of unfettered access to exercise areas.

 

Taxpayers had standing under  In re Application of Biester, 409 A.2d 848, 852 (Pa. 1979).  Under Biester, taxpayers, even ones not personally aggrieved, may challenge a governmental action provided that they satisfy the following requirements: (1) the governmental action would otherwise go unchallenged, (2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action, (3) judicial relief is appropriate, (4) redress through other channels is unavailable, and (5) no other persons are better situated to assert the claim. Flora v. Luzerne Cty., 103 A.3d 125, 132 (Pa. Cmwlth. 2014) (emphasis added). The Department asserts that Petitioners are unable to satisfy the second and fifth Biester factors.

                                                            

The purpose underlying Biester’s relaxation of the general rules regarding standing and their requirement of a substantial, direct, and immediate interest in the matter, is to enable citizens to challenge governmental action which would otherwise go unchallenged in the courts. Faden v. Phila. Hous. Auth., 227 A.2d 619, 621-22 (Pa. 1967). Taxpayer standing “allows the courts, within the framework of traditional notions of ‘standing,’ to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts.” Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 661-662 (Pa. 2005) (quoting Biester, 409 A.2d at 851 n.5).

 

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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/

 

 

 

 

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