admin. law - duty of hearing officer - pro se litigant

Frederick Mutual Insurance Co. v. Insurance Department – precedential, reported – June 21, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1528CD18_6-21-19.pdf?cb=1

Duty to conduct fair and impartial hearing   

The General Rules of Administrative Practice and Procedure (GRAPP). See Section 56.1 of the Pennsylvania Code, 31 Pa. Code § 56.1. Section 35.189 of GRAPP specifies: “It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order.” 1 Pa. Code § 35.189.

Pro se litigants

This Court has declared relative to Department hearings: The Pennsylvania Supreme Court has long held that ‘any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.’ Vann v. UCBR . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)).

Referee must be “unusually cautious” with pro se litigant – make sure all issues fully and fairly  examined

More recently, this Court clarified that, ‘referees should reasonably assist pro se This Court has also concluded “that where a person proceeding before an administrative agency is not represented by counsel, the hearing officer must be unusually cautious to insure that all issues are fully examined.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992). To that end, an administrative tribunal[] has the power to ask questions to clarify matters and to elicit relevant information not presented by counsel. Dayoub v. State Dental Council [&] Examining B[d., 453 A.2d 751, 753 (Pa. Cmwlth. 1982)]. [It] will have overstepped its bound only when it heatedly questions and argues with [a party] and [his/her] witnesses ‘in such a manner that [the presiding officer’s] behavior . . . [is] much more in line with that of a prosecuting attorney than of a neutrally detached and impartial decision-maker.’ [Id.]. Shah v. State Bd. of Med., 589 A.2d 783, 797 (Pa. Cmwlth. 1991).  

In the instant matter, the Presiding Officer “reasonably assist[ed] the litigant to elicit facts that [were] probative for [her] case[,]” Hackler, 24 A.3d at 1115, to ensure that both parties had the opportunity to fully present their cases. There is no evidence that the Presiding Officer impermissibly advocated for the litigant, assisted her in a manner that biased the proceedings, or gave the appearance of impropriety. Rather, it is clear from the record that the Presiding Officer was ensuring that all relevant facts were available for the Commissioner’s review. Accordingly, the Presiding Officer did not irreparably bias the proceedings or give the appearance of impropriety.

mailbox rule - presumption of receipt requires adequate proof of mailing - regular place of mailing

Pinnacle Health v. UCBR – Cmwlth. Court – reported opinion – May 31, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1025CD18_5-31-19.pdf?cb=1

Employer held to have “proper cause” for failure to attend UC hearing, due to non-receipt of hearing notice.    No presumption of receipt of notice of hearing, since there was inadequate proof of mailing. 

The “presumption of receipt is ‘inapplicable’ in the absence of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.’” Id. (quoting Leight v. UCBR, 410 A.2d 1307, 1309 (Pa. Cmwlth. 1980) (alteration in original)). Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016).

The fact that there was a rule requiring hearing notice to be mailed does not show that it was mailed.   “[T]he mere existence of a rule requiring an act to be performed by a public official is not sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of the notice.” Blaset v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1993).  Instead, “The presumption only comes into play when there is on record some other indication that the act in question had been performed such as a notation to that effect made by a local bureau official that the letter had been deposited in the mail.” Id.

That said, proof of actual mailing is not required unless there is a rule or regulation that specifies otherwise.  C.E. v. DPW, 97 A.3d 828, 833 (Pa. Cmwlth. 2014).  Rather, “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Department of Transportation v. Brayman Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)). “It is well settled that the presumption in the mailbox rule is not nullified by testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d at 566.

There was no proof of mailing in this case.   Clerk in referee office testified that she prepared the notice and put it in a basket on her desk, after which it was retrieved by a person from the mail room.  But there was no testimony about postage being affixed or how notices are actually mnailed.  The fact that the notice contained a “date of mailing” does not, without more, establish proof of mailing. See Douglas, 151 A.3d at 1193. 

Regular place of mailing –  Reading Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using “regular place of mailing” and “usual place of mail”), and  Douglas, 151 A.3d at 1191 (using “in the mail”) together, the Court here held that “the regular place of mailing is the place where the properly addressed letter, with postage affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or other location where a mail carrier retrieves the mail. Accordingly, in order for the Board to utilize the presumption of regularity in order to invoke the presumption of receipt, it must present evidence regarding how properly addressed items, with proper postage affixed, customarily enter the mail or, alternatively, show “some other indication that the act in question had been performed” such as a notation in the record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at 449.

There was not such evidence in this case.  The referee clerk “could not and did not address how and when the notices she prepares enter the mail or whether the notices receive the proper postage prior to their mailing, as she only places mail in a basket on her desk, which must then be picked up and further processed. Indeed, the clerk acknowledged that the basket on her desk was not the place where the notices customarily entered the U.S. Mail. Accordingly, the court remanded to the Board “for consideration of the evidence Employer submitted regarding the merits of Claimant’s appeal.”

Housing - Sec. 8 - termination - conduct in immediate vicinity

Cox v. Johnstown Housing Authority – Cmwlth. Court – reported decision – June 5, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1329CD18_6-5-19.pdf?cb=1

Held:  Public drunkenness conviction based on conduct that took place 1.9 miles from sec. 8 residence could not support termination of sec. 8 assistance, where the HA “failed to present one scintilla of evidence” that the resident’s conduct “made other residences of the premises” where he lived, “or persons in the immediate vicinity of those premises, feel insecure or anxious for tehir health, safetly or peaceful enjoyment.”  Thus, there was “no statutory or regulatory basis on which to terminate” the resident’s sec. 8 benefits.  A decision to terminated “may not be based on mere speculation that the residents or persons in the immediate vicinity. . .could or may be threatened at sime point in the future.”

From the opinion –

This Court has recognized:   The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority’s decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority’s discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth. 2013)]. Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc)

           

Congress did not state in Section 8 of the Housing Act that any and all criminal activity, wherever it occurs, is grounds to terminate Section 8 Program benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that Cox signed place him on notice that any and all criminal activity and/or alcohol abuse no matter where it takes place constitute grounds upon which the Authority could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act and applicable HUD Regulations, the Authority must prove, and the court must find that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such activity threatens the health, safety, or right to peaceful enjoyment of residents and/or persons in the immediate vicinity thereof. The second element demands proof of a threat to the health, safety or right to peaceful enjoyment of residents and/or persons  in the immediate vicinity on or near the Section 8 Program leased premises. 14 Thus, it is not the occurrence of the criminal and/or alcohol-related act that is needed to jeopardize Cox’s assistance or the possibility that it could occur, but there must also be proof that the health, safety or peaceful enjoyment rights of those who reside in the “immediate vicinity” of Cox’s premises was “threatened” by that act. 24 C.F.R. § 982.551 [emphais deleted).

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UC - off-duty misconduct not willful misconduct unless it affects ability to perform job

County of Allegheny v.  UCBR – Cmwlth. Court – May31, 2019

Claimant convicted of off-duty DUI was not disqualified under sec.  3 (off-duty misconduct)  or sec.  402(e)(job-related willful misconduct), even where Employer code of conduct authorized termination of employment for criminal conviction, even when off-duty or unrelated to employment.

From the opinion –

Willful misconduct -402(e) -  Employer argued that Claimant’s off-duty DUI was willful misconduct under sec.402(e), because it violated the employer code of conduct. The court rejected this argument,  noting that a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with this work.[”]  Palladino v. UCBR, 81 A.3d at 1103.   The fact that Claimant could be discharged for unlawful conduct does not make the misconduct work-connected for purposes of Section  402(e). See Palladino, 81 A.3d at 1103 (citing Robinson, 546 A.2d at 753).  “Off-duty misconduct will not support a finding of willful misconduct under Section 402(e) unless it extends to performance on the job[.]” Palladino, 81 A.3d at 1101 (quoting Burger, 801 A.2d at 491) (brackets omitted); see also Webb v. Unemployment Comp. Bd. of Review, 670 A.2d 1212, 1216 (Pa. Cmwlth. 1996)  There is a critical distinction between the employer’s right to terminate employment and the state’s right to deny unemployment benefits.’ ” Id. (quoting Blake v. Unemployment Comp. Bd. of Review, ... 425 A.2d 43, 45 ( [Pa. Cmwlth.] 1981).

Sec.3 –off-duty misconduct –  The Court affirmed the Board holding that Claimant was not ineligible under sec. 3.   Under Section 3 of the Law, the employer bears the burden to prove “(1) that the claimant’s conduct was contrary to acceptable standards of behavior and (2) that the claimant’s unacceptable conduct directly affects or reflects upon the claimant’s ability to perform his assigned duties.” Palladino, 81 A.3d at 1101 (quoting Frazier, 833 A.2d at 1184–85). Both prongs of the test must be satisfied. Gillins, 633 A.2d at 1154. Notably, Employer does not claim that the unacceptable conduct, i.e., the criminal DUI conviction, affected Claimant’s ability to perform his job duties as a project coordinator⁷ and does not challenge the Board’s determination that the conviction did not affect Claimant’s ability to perform his job. As such, because Employer did not establish one of the two necessary prongs, ineligibility for benefits under Section 3 cannot be established.