Consumer Protection - standard of proof

Boehm v. Riversource Life Insurance – Pa. Super – May 19, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A27014-14o%20-%201022190983492331.pdf?cb=1

 

Fraudulent misrepresentation case in connection with the sale of life insurance policies.  Jury found in favor of defendant on common law fraud claim, but court found for plaintiffs in the amount of $295,305.78, including attorneys’ fees and costs.  The Superior Court affirmed.

 

Liberal construction

1994). “The UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices.” Wallace v. Pastore, 742 A.2d 1090, 1092, 1093 (Pa.Super. 1999), appeal denied, 764 A.2d 1071 (Pa. 2000), citing Hodges v. Rodriguez, 645 A.2d 1340 (Pa.Super. 1994 “In addition, the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Id. (citations omitted). “The UTPCPL’s ‘underlying foundation is fraud prevention.’” Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001), quoting Commonwealth v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa. 1974).

 

Standard of proof

Trial court’s use of preponderance standard of proof affirmed.  In the predominant number of civil cases, where only economic and property interests are at stake, the evidentiary burden requires only proof by a preponderance of the evidence. Section 201-9.2 of the UTPCPL, providing for private actions, does not set forth which standard of proof applies, and apparently the matter has never been decided by the Pennsylvania appellate courts. There is no language anywhere in the UTPCPL suggesting that private actions brought pursuant to Section 201-9.2 should be governed by a more demanding standard of proof than proof by a preponderance of the evidence. Moreover, the preponderance of the evidence standard of proof, which is the standard usually applied to remedial legislation, is consistent with the UTPCPL’s purpose of protecting the public from fraud and unfair or deceptive business practices.  The court relied heavily on and quoted liberally from Judge Wettick’s opinion in eck v. Metropolitan Life, 2006 WL 634564 (CCP Allegheny 2006) and cited supporting case law from other states.

 

Parol evidence – Toy case

The court held that the parol evidence rule did not bar proof of the insurance agents’ misrepresentations, which were alleged to be fraud in the execution of the contract rather than fraud in the inducement.  Toy v. Metropolitan Life, 928 A.2d 186 (Pa. 2007).  The trial court found the the plaintiff’s reliance on the misrepresenations was justifiable and that plaintiff was credible

 

 

UC - continuances

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

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1263CD14_5-14-15.pdf?cb=1

 

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.

 

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UC - independent contractor

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

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1793CD14_5-14-15.pdf?cb=1

 

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

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/394MD14_5-13-15.pdf?cb=1

 

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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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.

 

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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.

 

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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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This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.

 

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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).

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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/

 

 

 

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)

 

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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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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 - 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.