disability - incomplete hypo to VE not harnless error - remand

Salmela v. Colvin – ED Pa. –  April 30, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0374P.pdf

 

ALJ failed to present the VE with a hypothetical question that completely presented Mr. Salmela’s limitations.  Case remanded for further proceedings.

 

In questioning a vocational expert, the Third Circuit has held “in the clearest of terms” that a hypothetical question must include all of a claimant’s impairments that are supported by the record.....If the hypothetical does not include all of the claimant’s substantiated impairments, “the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Id.

 

Therefore, courts in this Circuit have repeatedly found that a failure to include limitations in mental functioning in a hypothetical question posed to a vocational expert calls for remand....., 2015) (remanding because the failure of the ALJ to include moderate limitations in social functioning in the hypothetical question posed to the vocational expert rendered the question “‘deficient,’” such that it could not “‘be considered substantial evidence’” and was not harmless error) (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)); Pounds v. Colvin, Civil Action No. 13-440, 2014 WL 3845728, at *4-6 (W.D. Pa. Aug. 4, 2014) (remanding and holding that including a limitation on plaintiff’s interaction with the general public was insufficient to account for moderate limitations in social functioning); Seagraves v. Colvin, CA No. 13-718, 2014 WL 657549, at *2 (W.D. Pa. Feb. 20, 2014) (remanding for the ALJ to either explain the omission of plaintiff’s moderate limitations in social functioning from the description of plaintiff’s residual functional capacity/hypothetical question or to obtain vocational expert testimony in response to a complete and accurate hypothetical); Debias v. Astrue, Civil Action No. 11-3545, 2012 WL 2120451, at *5-6 (E.D. Pa. June 12, 2012) (finding the vocational expert’s testimony “inherently flawed” because of a failure to include moderate limitations in social functioning and remanding “so the ALJ can provide an accurate hypothetical that includes Plaintiff’s moderate social function impairment”); Lam v. Astrue, Civil Action No. 09-4331, 2011 WL 1884006, at *14 (E.D. Pa. Mar. 31, 2011) (“Until the ALJ forecloses the possibility that the VE could have changed his testimony if the ALJ had included limitations pertinent to the ALJ’s own finding of ‘moderate’ limitations in social functioning, the VE’s answer to the hypothetical as posed cannot be said to constitute substantial evidence upon which the ALJ can properly rely.”).

 

Here, the ALJ clearly found that Mr. Salmela had moderate limitations in social functioning, but failed to include those limitations in her description of Mr. Salmela’s residual functional capacity or in her hypothetical question to the vocational expert. Because the ALJ did not explain her failure to include Mr. Salmela’s moderate limitations in social functioning at these later stages in the analysis, the Court may not speculate now as to her potential reasons for doing so. Thus, given that it is impossible to tell whether the omission was intentional, the Court must turn to the more difficult question of whether the omission, intentional or not, was harmless.

 

custody - trial court order not reasonable in light of its factual findings

WF v. MG – Superior Court – April 29, 2015

 

majority opinion                  http://www.pacourts.us/assets/opinions/Superior/out/J-A33006-14o%20-%201021954313415464.pdf?cb=1

 

dissent                                   http://www.pacourts.us/assets/opinions/Superior/out/J-A33006-14do%20-%201021954313415479.pdf?cb=1

 

Father appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. primary custody of the parties’ two-year old daughter (“Child”), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand.

 

Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties’ briefs, the record, and the lower court opinions, we conclude that the court’s determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2104) (this Court may reject trial court’s conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).

 

The trial court found that although “when considering the mandatory factors, the findings of fact favor Father more than Mother.... However, since Father has not been the primary custodian to date, and his complaint for custody did not request primary custody, a change in primary custody would be disruptive for thechild, particularly because it would mean placement in child care rather than with a family member...”  What the trial failled to consider was the fact that “Father has not been primary custodian to date is, first, a function of Mother’s unilateral unreasonable decisions, and second, not a basis for denying him primary custody where all factors point otherwise. 

 

In addition, the court’s findings do not point to the conclusion that both Mother and Father are equally fit to act as primary custodian. The court expressed its concerns about Mother’s allegations of abuse by Father, as well as her “rigid” parenting style, which obscured a “wholesome, rational approached to child-rearing.”  The court contrasted Mother’s parenting style with Father’s, characterizing Father’s as “more natural.”

 

In determining Child’s best interests, the court’s consideration of the statutory factors weighed heavily in favor of granting Father primary custody. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (when trial court orders form of custody, best interest of child is paramount). Where a court makes findings consistently in favor of custody in one party, and then awards custody to the other party, it must provide valid reasoning to support that decision. Especially with respect to Mother’s allegations of abuse, which the court specifically found not credible, we cannot, in good  conscience, sanction this unexplained about-face. Although the court’s findings are supported in the record, its conclusions are unreasonable in light

of these findings. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014). Because the majority of the statutory best interest factors favor Father, we conclude that the court’s order was not based on a reasoned consideration of those factors.

____________________

 

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welfare - Kinship Care Program - eligibility for reimbursement

J.V. and R.V. v. DPW – Cmwlth. Court – April 29, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1343CD14_4-29-15.pdf?cb=1

 

Grandparents who took formal but voluntary custody of grandchildren,without any involvement of CYS, were not entitled to benefits under the Kinship Care Program to reimburse them for the care of their grandchildren.

 

The Kinship Care Program is intended to encourage family members to become involved in those instances “when it is necessary to remove a child from the child’s home.”  62 P.S. §1301.  County CYS agencies are required to notify grandparents and other adult relatives “of a dependent child within 30 days of the child’s removal from the child’s home when temporary legal and physical custody has been transferred to the county agency.”  62 P.S. §1303(a) (emphasis added). This transfer of custody may occur through a judicial adjudication of dependency under the Juvenile Act, 42 Pa. C.S. §6351, or by a voluntary placement agreement between the parents and the county child welfare agency under 55 Pa. Code §3130.65.  The county agency must take custody if it determines that grounds for dependency exist. See Children, Youth and Families Bulletin 00-03-03, “Kinship Care Policy,” July 28, 2003.  Relatives who accept placement of children through the county children and youth services agency are eligible for the payments that are available to all foster parents.  62 P.S. §1303(c)(1)(i).

 

Grandparents’ efforts have been laudable. The purpose of the Kinship Care Program is to encourage what Grandparents did. However, until they satisfy the regulations that apply to foster parents, they are not eligible for kinship care payments.   For these reasons, we are constrained to affirm the order of the Bureau.

 

_________________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

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UC - willful misconduct - employer rule on off-duty misconduct - mistaken advice of union not "good cause"

Rothstein v. UCBR   - Cmwlth. Court – February 11, 2015 – ordered to be reported 4-29-2015

 

Order reporting opinion            http://www.pacourts.us/assets/opinions/Commonwealth/out/875CD14ORD_4-29-15.pdf?cb=1

 

Opinion                                 http://www.pacourts.us/assets/opinions/Commonwealth/out/875CD14_4-29-15.pdf?cb=2

 

Held: Claimant committed willful misconduct by violating an employer rule requiring him to report certain off-duty misconduct, to wit, criminal arrests or convictions.  In this case, claimant, whose job required him to enter customers’ homes, had been arrested for, charged with and convicted of indecent exposure.

 

Misconduct was proven even though there was no evidence about the underlying acts, since “the very nature of the charges” could affect claimant’s ability to do his job. 

 

The fact that claimant’s union advised him not to report his arrest did not establish “good cause” for not complying with the employer rule.   The union had no responsibility under the employer rule.  Cf. Link v. UCBR, 446 A.2d 999 (Pa. Cmwlth. 1982).   The rule put the responsibility to report on the individual employee.  “Violating the policy by following the poor advice from the union does not relieve an employee of the consequences of his violation, nor provide just cause for the violation.”

 

_____________________

 

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consumer - UTPCPL suit v. bank - expired SOL - default judgment v. bank - motion to open denied

Gorden v. Discover Bank – ED Pa. – April 8, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0301P.pdf

 

Consumer/debtor sued Bank after credit Bank’s credit card case against her was dismissed on statute-of-limitations grounds.  Bank failed to answer the complaint and a default judgment was entered.  Bank sought to have the judgment opened, claiming that it never got the complaint. 

 

The court rejected the bank’s motion, noting that the “Complaint was served at an Ohio address from which Discover initiates most, if not all, of its collection actions nationwide, including the underlying suit that was brought against Plaintiff here. Although the record unambiguously confirms delivery to that address, Discover maintains that it never received the Complaint, and further contends that, although it operates its credit card and other lending businesses nationwide, it only “does business” from a single branch location in Greenville, Delaware.

 

The court stated that it was “satisfied that service here met the requirements of Ohio law, and the requirements of due process, and see no purpose to be served in requiring a consumer to navigate a labyrinth of complex corporate agreements as a prerequisite to filing a countersuit alleging improper debt collection practices. Accordingly, the Motion to Vacate will be denied.”

 

UC - appeal - preservation of issues - waiver - Merida v. UCBR not applicable

TIMI Plastics v. UCBR – Cmwlth. Court – March 30, 2015 – reported memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1387CD14_3-30-15.pdf?cb=1

The court rejected the employer’s argument that the claimant waived consideration of the relevant issue – willful misconduct, for alleged refusal of the claimant, a truck driver, to follow an employer order to make a delivery run – because claimant’s petition appeal to the Board lacked specificity, as required by Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1998), appeal dismissed as improvidently granted, 570 A.2d 1320 (Pa. 1990).   In his petition to the Board, claimant wrote, in full:  “Layer (sic) didn’t do his job. Need to cross-examine ex-employer – Brad Aronson and Joe Benjeman (sic) to prove their statements are wrong and misleading.”  

The court rejected this argument because the referee did consider and rule on the issue, as did the Board, all pursuant to UC regs.   “Merida does not apply here. That case is limited to its factual scenario where the claimant did not specifically raise before the Board an issue that was not discussed by the referee in his decision.”  (emphasis in original).  

Here, as in Black Lick Trucking, Inc. v. UCBR, 667 A.2d 454 (Pa. Cmwlth. 1995),, the issue before the Service Center was whether Claimant was discharged for willful misconduct because he did not agree to drive to New Jersey on August 27, 2013. The referee considered this very issue and determined that Claimant’s conduct amounted to willful misconduct. Pursuant to Board regulation 101.107(b), 35 Pa.Code §101.107(b),  the Board was required to consider whether Claimant was discharged for willful misconduct for his failure to drive on a particular assignment, regardless of whether Claimant’s Petition for Appeal to the Board specified this issue. The Board did precisely what it was required to do. There was no waiver.”

Appeals from a referee’s decision to the Board are governed by the Board’s regulations. Board regulation 101.81 (governing appeals from the Department) and 101.102 (governing appeals from referee to the Board) 34 Pa.Code §§101.81 and 101.102, indicate only that a party must set forth its “reasons for appeal,” without further elaboration as to the detail required to satisfy this condition.

 Further, Board regulation 101.87, 34 Pa.Code §101.87, states, in part:

When an appeal is taken from a decision of the Department [job center], the Department [job center] shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeals the tribunal [referee] shall consider the issues expressly ruled upon the decision form which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard.

 Board regulation 101.107(b), 35 Pa.Code §101.107(b), provides in part:

The Board shall consider the issues expressly ruled upon in the decision [of the referee] from which the appeal was filed.

This Court has interpreted these sections to mean that whatever issues the job center addressed, the referee should likewise address, and the Board, in turn, should decide all of the issues the referee considered, regardless of whether a party specifically raised the issue on appeal to the Board. See Jordan v. UCBR, 547 A.2d 811 (Pa. Cmwlth. 1988).

-----------------------------------
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/

 

 

 

admin. law - telephone hearings

Long v. Board of Prof. and Occup. Affairs – Cmwlth. Court – March 30, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1211CD14_3-30-15.pdf?cb=1

 

Former podiatrist sought reinstatement of his license.  Board denied his motion to have 6 witnesses testify by telephone as to his good character and rehabilitation.  The Court upheld the denial of the motion, citing “valid concerns” about e.g. “the difficulty in evaluating the demeanor of witnesses over the telephone” and “the “absence of established procedures for taking such testimony.”  Here is its discussion of the issue.

 

In its opposition to the motion below, the Commonwealth cited our decision in Knisley v. UCBR, 501 A.2d 1180 (Pa. Cmwlth. 1985), wherein we held that the Unemployment Compensation Board of Review was not authorized to hold telephonic hearings over the objection of a litigant in the absence of regulations that provided safeguards to assure fair, impartial hearings. Id. at 1182. Petitioner argues on appeal that Knisley was decided solely based on a lack of regulations regarding telephonic testimony, a defect which was cured by subsequent Department of Labor and Industry regulations which provide safeguards to the parties’ due process rights and assure the uniform application of such rules. 34 Pa. Code §§ 101.127–101.133. The Board argues that the hearing officer appropriately denied the motion under Knisley.

 

Though we need not decide whether Knisley controls our decision here, the concerns raised in that decision regarding telephonic testimony, including witnesses fraudulently misrepresenting their identities or referring to documents that had not been admitted into evidence, are equally applicable here and were appropriate considerations for the hearing officer. Unlike in the unemployment compensation context, the Board has not enacted regulations relating to when telephonic testimony may be permitted and the procedure to take such testimony. Similarly, the General Rules of Administrative Practice and Procedure, which are also applicable here, lack regulations concerning telephonic testimony. Furthermore, the hearing officer may also have appropriately considered the difficulty in evaluating the demeanor of witnesses over the telephone. Thus, in light of the valid concerns in conducting telephonic testimony and in the absence of established procedures for taking such testimony, we conclude that the hearing officer did not abuse her discretion in denying Petitioner’s motion.5

 

 

The court also noted (in n. 5) that the petitioner

 

did not articulate in the motion any compelling reason why it was impracticable for the six witnesses to attend the hearing; instead he simply stated that the witnesses lived in Western Pennsylvania and requested that they be allowed to testify by telephone. (R.R. at 8.) Petitioner had recourse to other avenues for procuring the witnesses’ testimony, including by seeking a subpoena to compel their attendance or by filing an application to take the testimony of the witnesses by deposition prior to the hearing. See 1 Pa. Code §§ 35.142, 35.145–35.152.   (emphasis added)

 

_________________________

 

Editor’s note:  PHFA and other state agencies hold phone hearings without any  telephone regulations like those that exist for UC hearings.

 

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statute of limitations - equitable tolling

US v. Wong – U.S. Supreme Court – April 22, 2015 (5-4)

 

http://www.supremecourt.gov/opinions/14pdf/13-1074_9olb.pdf

 

Held, Federal Tort Claims Act time limits for suit against the government are subject to equitable tolling.  The statute of limitations was held to be not jurisdictional, despite “shall be forever barred” language.

public housing - right of applicant to hearing and appeal of denial - Bray v. Housing Authority

Bray v. Housing Authority of Pittsburgh – Cmwlth.  Court – en banc – April  21, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1515CD13_4-21-15.pdf?cb=1

 

Overruling its decisions in Cope v. Bethlehem Housing Authority, 514 A.2d 295 (Pa. Cmwlth. 1986), and McKinley v. Housing Authority of the City of Pittsburgh, 58 A.3d 142 (Pa. Cmwlth. 2012), the en banc Commonwealth Court held that a local housing authority’s decision is an “adjudication” under Section 101 of the Administrative Agency Law, 2 Pa. C.S. § 101, and that applicants for public housing have a personal or property interest in those benefits and, thus, a right to appeal an adverse HA decision to a court of common pleas, under the Local Agency Law, 2 Pa. C.S.  551 et seq.  and 751 et seq.

 Section 752 of the Local Agency Law states, in pertinent part, that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in the adjudication shall have the right to appeal therefrom.”  2 Pa. C.S. § 752. There is no question that an applicant for public housing is aggrieved by and has a direct interest in the result of a housing authority decision.   If the applicant is able to establish that the decision is an “adjudication” as defined by Section 101 of the Administrative Agency Law, she would be entitled to judicial review of the decision pursuant to Section 752 of the Local Agency Law.

 Section 101 of the Administrative Agency Law defines the term “adjudication,” in pertinent part, as:

 Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions.

 2 Pa. C.S. § 101. To be an adjudication, the action “must be an agency’s final order, decree, decision, determination or ruling [first requirement] and . . . it must impact on a person’s personal or property rights, privileges, immunities, duties, liabilities or obligations [second requirement].”   There is no dispute that a housing authority decision is a final decision on an application, so the first requirement is satisfied. It is the second requirement which is the focus of this case.

 The Court rejected the HA’s argument that it has unfettered discretion in how it reaches a decision and, thus, its decisions are not adjudications subject to appeal to a court of common pleas or the Commonwealth Court.  The Court rejected this argument, noting that “to remedy the shortage of safe, affordable housing, the United States Congress enacted a comprehensive statutory framework pursuant to which the Department of Housing and Urban Development (HUD) has promulgated numerous regulations that include express requirements for determining tenant eligibility. These eligibility requirements are mandatory, establishing the criteria a public housing authority must consider and what it may not consider when reviewing an application for public housing.” (emphasis in original)

 Where a government entity creates eligibility rules, those rules provide an individual within the eligible class an interest and claim to which procedural due process attaches and, even though the governmental entity retains discretion in its ultimate decision, that discretionary power “must be . . . exercised after fair investigation, with such a notice, hearing[,] and opportunity to answer for the applicant as would constitute due process.”  Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 119, 123  (1926).  These principles regarding the existence of eligibility criteria and the creation of a protected interest in a determination of one’s eligibility have been recognized and applied by many federal courts. [citations omitted].

 These federal court decisions focus on the existence of particularized standards or criteria that limited the housing authority’s discretion in favor of the applicant to determine whether a protected property interest existed. Because the Housing Act and its regulations contain particular requirements and criteria which govern an applicant’s eligibility, the federal courts recognized that applicants have a protected property interest in obtaining a proper eligibility determination. This is separate from the property right which existing residents have in their housing units that Cope and McKinley recognized. The property interest involved in this case is not the right to an actual public housing unit or a voucher, but the right to have the applicant’s eligibility determined in accordance with the requirements of the federal law, which can, eventually, result in the receipt of an actual housing unit.   Thus, an applicant for a defined and regulated public benefit – housing, UC, welfare, or the like -- has a property interest in a proper eligibility determination, even if the applicant does not yet have a property interest in the benefit itself. 

 Another consideration is the fact that, if there were no judicial review of a decision from the informal hearing, there would be no method to assure applicants that housing authorities are truly complying with their federal obligations.  Absent judicial review, there would be no check on a housing authority’s decision-making to ensure that the housing authority is complying with all of the requirements of relevant statutes and regulations, which would essentially render them mere surplusage.  The Court cited its own jurisprudence as including “examples of the types of mistakes made in determining an individual’s eligibility for public housing.  Romagna v. Housing Authority of Indiana County (Pa. Cmwlth., No. 1648 C.D. 2011, filed July 13, 2012) and Brown v. Housing Authority of the City of Pittsburgh (Pa. Cmwlth., No. 617 C.D. 2014, filed March 25, 2015).   These cases provide “an example of the type of misinterpretation of the federal regulations that a housing authority can make that would affect an individual’s eligibility, whether initial or ongoing, to receive public housing benefits.  The Court saw “no reason why a housing authority’s misinterpretation of the applicable federal law and regulations should go uncorrected when it occurs during the initial eligibility determination, which would be the effect of our holding that a housing authority’s decision denying benefits is not an adjudication.”

  

 

custody - modification

R.S. v. T.T. – Superior Court – April 10, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-S77044-14o%20-%201021728293339748.pdf?cb=1

 

The lower court erred in modifying an order which gave parents roughly equal physical custody.   The “slight unpleasantness” that might be involved in the 35-40 minute car ride to school when child was with father was not a “special circumstance” and did not justify any modification.   Moreover, the trial court did not discuss any possible harm to the child that would ensue in  “uprooting “ the child from “the care pattern he has known from a young age” and “dramatically reduc(ing)” father’s custody time, especially considering the court’s finding that mother was less likely than father to encourage a relationship with the other parent. 

 

_______________________

 

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UC - wages - "direct seller" exception

Sydnor v. UCBR – Cmwlth. Court – April 10. 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1908CD14_4-10-15.pdf?cb=1

 

Claimant held to be financially ineligible under Section 4(l)(4)(20) of the UC Law, 43 P.S. sec. 753(l)(4)(20), because he came within the “direct seller” exception for inclusion of wages as a door-to-door sales person for Verizon FiOS.  The court rejected claimant’s argument that there should have been a self-employment analysis, which the court said was “simply inapplicable” because of the wage disqualification under the direct-seller provision.

 

“Wages” are “all remuneration … paid by an employer to an individual with respect to his employment.” 43 P.S. §753(x) (emphasis added). “Employment” is “all personal service performed for remuneration by an individual under any contract of hire.” 43 P.S. §753(l)(1). However, there are various exceptions to “employment,” one of which is if an individual is a “direct seller.” See 43 P.S. §753(l)(4)(20).

 

Here, Claimant was not employed by the Company; rather, he was a “direct seller,” which is an individual who is:  (i) engaged in the trade or business of selling or soliciting the sale of consumer products to any buyer on a buy-sell basis or a deposit-commission basis, or any similar basis which the United States Secretary of Treasury or his delegate prescribes by regulations for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment, or (ii) engaged in the trade or business of selling or soliciting the sale of consumer products in the home or otherwise than in a permanent retail establishment.

43 P.S. §753(l)(4)(20).

 

Furthermore:

To be a “direct seller,” (i) substantially all the remuneration whether or not paid in cash for the performance of the services described under this definition must be directly related to sales or other output, including the performance of services rather than to the number of hours worked, and (ii) the services performed by the person must be performed pursuant to a written contract between the person and the person for whom the services are performed and the contract provides that the person will not be treated as an employe with respect to the services for Federal tax purposes. Id.

 

________________________________

  

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UC - employee v. indpt. contractor - burden of proof

Larry Fry Drywall v. Office of UC Tax Assessment Services – Pa. Cmwlth. – April 7, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1389CD14_4-7-15.pdf?cb=1

 

The court affirmed the OUCTAS finding that the employer had wrongly considered its employees to be independent contractors.  The Office assessed the employer ~$36,000 for unpaid UC taxes.

 

“A determination regarding the existence of an employer-employee relationship is a question of law that depends on the unique facts of each case.” Kurbatov v. Dep’t of Labor & Indus., Office of Unemployment Comp., Tax Servs., 29 A.3d 66, 70 (Pa. Cmwlth. 2011). “[T]here is a presumption in the [UC] Law that an individual receiving wages is an employee and not . . . engaged in self-employment.” Training Assocs. Corp. v. Unemployment Comp. Bd. of Review, 101 A.3d 1225, 1234 (Pa. Cmwlth. 2014) (quoting Pasour v. Unemployment Comp. Bd. of Review, 54 A.3d 134, 137 (Pa. Cmwlth. 2012)).

 

The [UC Law] goes very far, and properly so, and places a very heavy burden on the applicant when it makes payment to anyone who has performed . . . services to excuse or exempt that payment from the unemployment compensation tax. Few indeed are the instances where that burden can be met. . . .

Kurbatov, 29 A.3d at 71 (quoting Am. Diversified Corp. v. Bureau of Employment Sec., Dep’t of Labor & Indus., 275 A.2d 423, 426 (Pa. Cmwlth. 1971)). “This Court . . . emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business . . . .” Peidong Jia v. Unemployment Comp. Bd. of Review, 55 A.3d 545, 549 (Pa. Cmwlth. 2012) (emphasis added).

 

Here, the Department found that the employer did not furnish any of the documentation requested by the Office to establish that its workers were independent contractors, including any documentation showing that the workers had their own businesses or were paying UC taxes.  

 

“The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.” Peidong Jia, 55 A.3d at 549.

 

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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 event, 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/, where the opinions of all state appellate courts can be found.

UC - voluntary quit v. discharge - capricious disregard

Wise v. UCBR – Cmwlth. Court – March 25, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/727CD14_3-25-15.pdf?cb=1

 

Claimant held to have quit her job when she failed to get proper certification for one possible position and did not respond to employer’s offer of another position within the time alloted.

 

Capricious disregard

The court rejected claimant’s allegation that the UCBR capriciously disregarded competent evidence regarding several issues.   A capricious disregard of evidence occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result. Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014). The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an “appropriate component of appellate consideration in every case in which such question is properly before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). In Wintermyer, the Supreme Court noted that where there is substantial evidence to support the agency’s factual findings and those findings support the legal conclusions, “it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard.” Id. at 487 n.14. The standard announced in Wintermyer applies whether one or both parties present evidence and, thus, overruled this Court’s earlier-announced paradigm that appellate review for capricious disregard of evidence was limited to the circumstance where the burdened party was the only party to present evidence and did not prevail. See, e.g., Lautek Corporation v. Unemployment Compensation Board of Review, 588 A.2d 1007, 1010 (Pa. Cmwlth. 1991).

 

Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005). In Hinkle, this Court, citing Wintermyer, explained that:

“Capricious disregard” then is just another name for the agency abusing its discretion and is an error of law when the agency fails to give an indication that it has examined countervailing substantive testimony that had to be considered at arriving at its decision.

The capricious disregard standard then is nothing more than a shorthand way of referring to an amalgam of existing overlapping legal and constitutional standards mentioned above that safeguard against arbitrariness by state and local administrative agencies by requiring a meaningful explanation of why the losing party’s overwhelming evidence was not accepted.

Id. (footnote omitted). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Spencer, 97 A.3d at 842 (Pa. Cmwlth. 2014) (citing Wintermyer, 812 A.2d at 487-88).

 

Applying the above principles to the case, the court held that the Board did not capriciously disregard competent and relevant evidence. It did not ignore Claimant’s “overwhelming evidence” without comment. Rather, the Board discussed and explained its decision on all relevant issues.

 

Voluntary quit v. discharge

The court rejected claimant’s argument that she was fired and did not voluntarily quit her job.   Whether a claimant’s separation from employment constitutes a voluntary resignation is a question of law subject to this Court’s plenary review and will be determined from the totality of the facts surrounding the cessation of employment. Middletown Township v. UCBR, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). A voluntary termination requires a finding “that the claimant had a conscious intention to leave employment.” Procyson v. UCBR, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2012). A voluntary termination is not limited to a formal or even an express resignation; it can be inferred from the employee’s conduct. G.C. Murphy Co. v. UCBR, 471 A.2d 1295, 1297 (Pa. Cmwlth. 1984). An employee who leaves her employment without informing her employer when or if she is planning to return may be held to have voluntarily quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).

 

The court agreed with the Board that the evidence show that claimant exhibited a conscious intention to leave her employment by failing to respond to employer’s offer of a position within the time specified, noting that there was a need for a prompt decision by claimant, and that the employer tried to get in touch with claimant numerous time and that claimant failed to respond.

 

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tax sale - reasonable efforts to locate taxpayer

777 L.L.P. v. Luzerne County TCB v. V. Mannino (Pa. Cmwlth March 30, 2015). 

http://www.pacourts.us/courts/commonwealth-court/court-opinions/Default.aspx

 

Judicial tax sale vacated for failure to serve the taxpayer and failure to use “reasonable efforts” to locate the taxpayer, where the tax claim bureau did not conduct a search of current telephone directories, searched property records only by property ID number, not the taxpayer’s name, and failed to thoroughly review its own file to ascertain the taxpayer’s current address. 

Tax sales - right to installment agreement - payment of at least 25% of taxes due

 In Re: Sale by TCB of Bedford County of Tax Parcel G.14-0.00-007 - Appeal of Vignola (Pa. Cmwlth. March 30, 2015). 

http://www.pacourts.us/assets/opinions/Commonwealth/out/718CD14_3-30-15.pdf?cb=1

Where an owner has paid at least 25% of the taxes due, the tax claim bureau has an affirmative duty to inform the owner of the option to enter into an installment agreement, and the failure to do so will invalidate a subsequent tax sale. [citations omitted]

UC - voluntary quit - firm offer of new job

Geraci v. UCBR – Cmwlth. Court – March 20, 2015 – unreported memorandum opinion - can be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1531CD14_3-20-15.pdf?cb=1

 

Claimant who quit job to train for potential job held not eligible, since he had no firm offer of employment.

 

The court has consistently held that a firm offer of employment and its acceptance constitutes a necessitous and compelling cause for quitting. Solar Innovations, 38 A.3d at 1056. “‘The offer of employment . . . must be definite’ . . . and ‘the claimant must act prudently with regard to his employer.’” Id. (citations omitted). However, we have also “consistently held that the mere possibility of obtaining another job, without a firm offer of employment, is insufficient to establish that employment was terminated for good cause.” Fernacz v. UCBR, 545 A.2d 995, 997 (Pa. Cmwlth. 1988).

 

As a matter of law, acceptance of a job that is contingent upon successful completion of a training program for only the prospect of better employment, as is the case here, does not constitute the requisite necessitous and compelling cause to qualify for UC benefits under the Law. See Fernacz, 545 A.2d at 997. “[A]lthough ‘the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting.’” Solar Innovations, 38 A.3d at 1057 (citation omitted).

 

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If the case is not recent, the link in this posting may not work.  In that event, 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/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

UC - self-employment not established

Isett v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished  memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1026CD14_3-18-15.pdf?cb=1

 

Court held that the claimant was not self-employe and thus continued to be eligible for UC benefits.

 

Claimant got benefits after being laid off from work when he returned after a disability leave.   Both before and after his leave and layoff, claimant has done yard work for a neighboring child care center.   Claimant was initially granted benefits, but the employer appealed and the referee and UCBR held that his occasional work for the child care center made him self-employed, ineligible for benefits, and subject to a non-fault overpayment.  The Court reversed.

 

Burden of proof on DOLI

Where the Bureau initiates proceedings that result in a suspension of benefits based on self-employment, as is the case herein, it is the Bureau, and not the putative employer, who carries the burden of proof. Silver v. UCBR, 34 A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). In such proceedings, where the claimant is already receiving unemployment compensation benefits, the question is not whether the work at issue would entitle the claimant to benefits, but whether the work at issue disqualifies the claimant from further receipt of benefits he is already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth. 2012) (emphasis added).

 

Self-employment

Pursuant to Section 402(h), a claimant is ineligible for unemployment benefits in any week “[i]n which he is engaged in self-employment.” While the

term “self-employment” is not defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines “employment,” in pertinent part, as:

 

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 or 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). This court has consistently held that before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).

 

Claimant not engaged in self-employment

It is clear that Claimant was not customarily engaged in an independently established trade, occupation or business.  He had cut the child care center law for years as a neighbor and that he approached them to cut the lawn in order to rehabilitate his knee. Claimant testified: He “was kind of feeling guilty to even get paid for [his services] but [he] was trying to get a little bit of therapy for medical problem [knee .  He thought by performing the services, this is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas or supplies, and used tools he acquired over the years from being in the construction business when needed. Claimant testified that he never looked for other mowing or landscaping jobs, never invested any money, did not advertise or put out fliers, and did not try to solicit customers by word-of-mouth. He testified: “My intention wasn’t to go into business, my intention was to get [himself] a little bit in better physical shape and help out a little bit.”  Claimant testified that he was available for full-time employment and continued to look for work while he performed services for Tiny Treasures and that the fact that he made an inquiry to obtain a quote for liability insurance, in and of itself, is insufficient as a matter of law to support the finding that he was customarily engaged in an independent trade, occupation, profession or business.   The Court agreed.

 

The evidence shows that Claimant did not advertise in any way, did not seek other customers, did not invest any money nor purchase any equipment or supplies. Claimant dutifully reported the sums he receive to the Bureau, consistent with the Bureau’s own instructions in the regulations. Moreover, even where an activity which generates a limited amount of income was not undertaken while the claimant was still employed, such activity does not automatically make it disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). Claimant testified that the money he received for mowing was not enough to either support himself or cover the cost of insurance, and that it was never his intention to go into business for himself and that he continued to look for full time employment.

 

The evidence establishes only that Claimant’s work for the child care agency was on the side to make extra money and not that of an individual customarily engaged in a trade, occupation, profession or business. The Court has long recognized the ability of an individual to accept occasional assignments of work. Thus, “the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business” that would disqualify him from receiving unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

 

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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 event, 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/, where the opinions of all state appellate courts can be found.