Monday, July 22, 2019

UC - willful misconduct - inconsistent enforcement v. disparate treatment

Gordon Terminal Service Co. v. UCBR – Cmwlth. Court – Juine 3, 2019 – reported, precedential


Held:  Where the evidence showed that the employer’s enforcement of a rule against use of cell phone at work was inconsistent, the employer did not establish the existence of a rule that would support a finding of willful misconduct.

Although Employer may have had a written policy prohibiting the use of cell phones without special approval, in reality the Board found that, if Employer had such a policy, Employer engaged in “inconsistent enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence of a rule that could support a finding of willful misconduct.
See Great Valley Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated violations of its policy governing employees’ internet use, employer failed to establish that claimant’s use of internet amounted to willful misconduct); Penn Photomounts, Inc. v. UCBR, 417 A.2d 1311, 1314-15 (Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting absences and employer was aware that its employees followed less formal practice to report absences and tolerated less formal reporting practice, use of less formal practice did not constitute willful misconduct). Thus, Employer failed to meet its burden to prove that Claimant violated Employer’s work rule
Inconsistent enforcement v. disparate treatment
The Board did not determine that Employer engaged in disparate treatment but rather that Employer did not meet its burden to establish willful misconduct due to its inconsistent enforcement of a work rule. The Board, in support of its decision, wrote:  The Board is unable to substantiate any error in the Referee’s willful misconduct analysis. The employer contends that the claimant’s testimony is insufficient to establish disparate treatment regarding cell phone usage in the workplace. Nonetheless, the claimant’s testimony was more than sufficient to establish inconsistent enforcement of an alleged work rule stating that cell phone use is not permissible without special approval. (Id. at 123a.) 
The distinction between the two concepts—i.e., disparate treatment and inconsistent enforcement of an alleged work rule—is nuanced and subtle. Disparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. In situations of inconsistent enforcement, an employer cannot prove the “deliberate violation” required by Grieb necessary for a determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying “deliberate violation of an employer’s rules” as a form of willful misconduct). Here, the Board concluded that Employer failed to establish a violation of Employer’s rules due to Employer’s inconsistent enforcement of its cell phone prohibition and, therefore, failed to prove willful misconduct. As a result, the affirmative defense of “disparate treatment” is inapplicable.

PFA - temporary custody - best interest analysis not required to award temporary custody in PFA case

C.H.L. v. W.D.L. – Superior Court – July 8, 2019 – published, precedential

Held:  Lower court’s “meticulous” opinion in PFA case involving award of temporary custody to wife upheld on appeal.  The opinion detailed the “very calculated, complex, web of domestic violence, control and intimidation by Husband against Wife.”  The specific and important language was that: 

Absent guidance from our Legislature or our Supreme Court, we conclude that a PFA court need not conduct a best interests custody analysis to award temporarycustody as form of relief under section 6108 of the Protection From Abuse Act. 

The purpose of the Protection From Abuse Act is to protect victims of domestic violence from the perpetrators of that type of abuse and to prevent domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013)(citation omitted). It is well-settled that trial courts have the authority to enter protection from abuse orders that conflict with custody orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). 

The PFA Act allows the court to award temporary custody or establish temporary visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4). Where the court finds after a hearing that the defendant has inflicted serious abuse, the court may deny the defendant custodial access to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodial rights, the court shall consider, and may impose on a pre-existing custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).  

Custody wise, a PFA order is not designed to impose anything but emergency relief. See Dye for McCoysupra, 621 A.2d at 145. To understand this, look no further than the PFA Act: “Nothing in this paragraph [relating to temporary custody as a form of relief] shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). 

But while the domestic violence emergency is still pending, a PFA order may alter a pre- existing custody order and remand for clarification to avoid conflict. See Dye for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence.” Id. 

Moreover, the PFA Act does not require a child to be physically struck before a court can award temporary sole custody to a plaintiff. The court may do so even though the defendant has inflicted serious abuse upon the plaintiff alone. See § 6108(a)(4)(iii)(B). 

UC - late appeal - nunc pro tunc allowed - postal authorities

Bankers Like & Casualty v. UCBR – reported, precedential opinion – June 27, 2019

Held:  Employer permitted to appeal nunc pro tunc where there was an administrative breakdown by postal authorities, and:

  • Envelope containing employer appeal had illegible postmark
  • Appellant’s attorney testified w/o contravention that appeal was timely mailed
  • Appeal was returned, mistakenly marked undeliverable and unable to forward
  • Attorney then promptly filed another petition for appeal to the Board


The court relied on Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) and Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) in granting a nunc pro tunc appeal, holding that “[w]e must conclude that Attorney Weissman’s uncontroverted testimony, along with the documentation which he produced, while insufficient under the law to prove timely mailing, did establish that an administrative breakdown by the postal service caused the untimely appeal, and satisfies all the necessary elements to permit the filing of the appeal nunc pro tunc.”

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