admin. law - credibility - determination on written record

Long Run Timber Co. v. DCNR – Cmwlth. Court – August 30, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/2313CD15_8-30-16.pdf?cb=1

Credibility determinations may properly be made by the administrative adjudicators from reading a transcript.  Administrative agencies frequently use a system where a hearing examiner takes the evidence, but the ultimate fact-finder is the board or commission. Cavanaugh v. Fayette Cnty. Zoning Hearing Bd., 700 A.2d 1353, 1355-56 (Pa. Cmwlth. 1997); Kramer v. Dep’t of Ins., 654 A.2d 203, 206 (Pa. Cmwlth. 1995).

Thus, a board or commission has the power to make findings of fact solely on its review of the record. Kramer, 654 A.2d at 206. Such a process does not deny a litigant any due process rights. R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 145 (Pa. 1994). Here, all of the Board members reviewed the full record from the two-day hearing before making the decision to dismiss the Complaint. They were acting within their authority when they made their credibility determinations, and such determinations 21 are not reviewable by this Court. Moreover, the bases on which the Board rejected appellant’s proferred evidence are supported by substantial evidence.

As with other administrative agencies, all determinations of witness credibility and evidentiary weight are solely within the province of the Board. Pa. Game Comm’n v. K.D. Miller Lumber Co., Inc., 654 A.2d 6, 9-10 (Pa. Cmwlth. 1994). “[I]t is not the function of this court to judge the weight and credibility of the evidence given before an administrative agency.” Id. at 10.  Administrative agencies frequently make credibility determinations on records made before a hearing officer or administrative law judge. Cavanaugh, 700 A.2d at 1355-56; Kramer, 654 A.2d at 206. 

HEMAP - reasonable prospect - income - anticipated spousal support too speculative

Barzilayev v. PHFA – Cmwtlh. Court – August 17, 2016 – unreported* memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/242CD16_8-17-16.pdf?cb=1

Held:  PHFA did not err when it decided to not include a speculative, anticipated award of spousal support in the calculation of Homeowner’s monthly income.

We do not review the record to determine if a homeowner’s circumstances “militate toward a grant of emergency assistance”; rather we review only to see if there is substantial evidence to support the necessary findings, or to ensure that an error of law was not committed. Mull v. Pa. Hous. Fin. Agency, 529 A.2d 1185, 1188 (Pa. Cmwlth. 1987). “Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cullins v. Pa. Hous. Fin. Agency, 623 A.2d 951, 953 (Pa. Cmwlth. 1993). To prove abuse of discretion, “the petitioner must persuade us that the fact finder capriciously and arbitrarily disregarded evidence which one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth.” Koch v. Pa. Hous. Fin. Agency, 505 A.2d 649, 650-51 (Pa. Cmwlth. 1986) (emphasis added).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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 - vol. quit - substantial change

Uniontown Medical Rehab. v. UCBR – Cmwlth. Court – July 29, 2016 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1738CD15_7-29-16.pdf?cb=1

Claimant had good cause to quit her clerical job at doctor’s office, where the referee and Board found that there was substantial unilateral change in working conditions, to wit, a “constant threatening to cut the claimant’s hours to part-time” and reduce her pay by $3.00/hour, if she refused to work all of the overtime hours that the doctor considered necessary to get the job done.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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 - willful misconduct - delib. violation of ER policy - WM v. rule violation

Good Samaritan Hospital v. UCBR – Cmwlth. Court – July 28, 2016 – unreported* memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/1224CD15_7-28-16.pdf?cb=1

Employee’s deliberate decision to flout ER email policy on internal mass mailings constituted willful misconduct, despite ER policy for discipline short of discharge, where ER policy gave it discretion to impose greater sanction, and it chose to do so.

When Claimant’s application for religious exemption to ER mandatory flu vaccination was denied, he sent out a series of 13 mini-mass mailings to co-workers, after he was unable to send out single mass mailing because of lack of permission.

The evidence reflects Claimant’s acknowledgement of Employer’s e-mail policies and his deliberate decision to flout Employer’s prohibition against mass e-mails by circumventing the restrictions on the distribution list and sending thirteen e-mails.   Accordingly, we conclude that Claimant’s actions constituted willful misconduct. Furthermore, the fact that Employer’s policies provide for discipline short of discharge does not negate Claimant’s termination for willful misconduct where its policies clearly afford it discretion to impose a different and greater sanction for his actions and it chose to do so. See Johnson v. UCBR, 744 A.2d 817, 821 (Pa. Cmwlth. 2000); Seton Co. v. UCBR, 663 A.2d 296, 299 (Pa. Cmwlth. 1995).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

tax sales - RETSL - right to installment plan - stay - "default"

Barker v. Chester Co. Tax Claim Bureau – Cmwlth. Court – July 27, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1384CD15_7-27-16.pdf?cb=1

The court set aside the sale and reversed the lower court, holding that

            - Taxpayers did not default under a 2010 installment agreement under sec. 603 where, although they were late with some intermediate installment payments, they made the final payment within the applicable period – “when due.”  Therefore, there was no “default” of the agreement, and the taxpayers were not disqualified from eligibility for a 2013 installment agreement under sec. 603, which bars eligibility if there was default on agreement within prior three years.

            - Sale also set aside because, even assuming there was a default,  the TCB’s admitted failure to give the taxpayers notice of such violated the notice requirement under sec. 603.

There was a lot of good language in the opinion, including the following:

            - notice of right to installment agreement must be given by TCB upon payment of 25% of the taxes due -  An upset sale must be stayed where a taxpayer pays 25% of the taxes due and agrees to an installment plan for the remainder. Further, where a taxpayer makes a payment of 25% or more, “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.’” In In Re Consolidated Return of the Tax Claim Bureau of the County of Beaver from the August 16, 2011 Upset Sale for Delinquent Taxes, 105 A.3d 76 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 121 A.3d 497 (Pa. 2015),   Id. at 82 (emphasis added) (quoting Darden, 629 A.2d at 323).

            - purpose of RETSL is collection of taxes, not taking of taxpayer’s property -  The statute was not enacted to deprive citizens of their property or to create investment opportunities for those who attend tax sales but, rather, to assist the collection of taxes. Stanford–Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa. Cmwlth. 2003). The United States Supreme Court has held that due process is implicated in any taking of property for the collection of taxes, stating that “[p]eople 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.  Jones v. Flowers, 547 U.S. 220, 234 (2006). Because of these due process concerns, this Court has explained that

the focus 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. Id. at 1252.

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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)