statutes - passage - single-subject - Art. III, sec. 3 - Pa. Constitution

Sernovitz v.  Dershaw-   Pa. Super. November 14, 2012

http://www.pacourts.us/OpPosting/Superior/out/A22023_12.pdf

Statute barring claim for "wrongful life" held to be unconstitutional because of violation of the single-subject rule of the Pennsylvania Constitution, Article III, sec. 3, which states that

“No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.” PA. CONST. art. III, § 3.7 The purpose of the creation of Article III was “to place restraints on the legislative process and encourage an open, deliberative and accountable government.” City of Philadelphia v. Commonwealth, 575 Pa. 542, 573, 838 A.2d 566, 585 (2003) (citation omitted).

This Article was included in the Pennsylvania Constitution of 1874, which was drafted in an atmosphere of extreme distrust of the legislative body and of fear of the growing power of corporations, especially the great railroad corporations. It was the product of a convention

whose prevailing mood was one of reform[.] […] [A]s these mandates survived the more recent constitutional revisions, they continue to reflect important policies relating to the nature of the deliberative process. Id. at 573-74, 838 A.2d at 585-86 (internal citations and quotations

omitted).

The single-subject requirement of Article III, Section 3 serves a variety of purposes, including: (1) preventing the attachment of unpopular riders that would not become laws on their own to popular bills that are sure to pass;8 (2) providing for a more considered review of bills brought before the General Assembly, as a bill addressing a variety of subjects is less likely to get such attention; and (3) protecting the integrity of the Governor’s veto power.9 Id. at 574, 575 n.18, 838 A.2d at 586, 586 n.18.

UC - wages - full-time student employed by school s/he is attending

Miller v. UCBR – Cmwlth. Court – November 13, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/751CD12_11-13-12.pdf

Wages earned by a full-time student who worked part time as a lecturer are not includable as UC wages under 43 P.S. §753(l)(4)(10)(B), which says that employment shall not include:  Service performed in the employ of a school, college or university if such service is performed (i) by a student who is enrolled and is regularly attending classes at such school, college or university . . . .

In Knee v. Unemployment Compensation Board of Review, 415 A.2d 1008 (Pa. Cmwlth. 1980), Knee was registered as a full-time dissertation student, having completed her formal classroom studies, and was preparing for her comprehensive examinations. The UCBR excluded the wages she earned while she was preparing for her comprehensive examinations and working as a teaching fellow because she was enrolled as a full-time dissertation student at that time. Id. at 1009. This court affirmed, finding that Knee was a full-time dissertation student and was not finished with her studies. Id.

Here, the UCBR found that Claimant was employed as a part-time lecturer while he was enrolled as a full-time student working on his dissertation, from August 23, 2010, through May 5, 2011. (UCBR’s Findings of Fact, Nos. 1-3.) Claimant was registered as a full-time student while completing the dissertation portion of the doctoral program at PSU. Therefore, according to Knee, Claimant was not eligible for unemployment benefits. The UCBR did not err in excluding Claimant’s earnings.

UC - sexual harassment - vol. quit

Consolidated Scrap v. UCBR –  November 8, 2012 – unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/567CD12_11-8-12.pdf

Employer argues that Claimant calculatedly walked away from her job because she disliked Employer’s chosen course of investigation and quit after Employer took prompt and effective steps to end the conduct about which she complained .

However, the HRA admitted, at the hearing and in her memorandum to Claimant, that Employer’s proposed remedy would have forced Claimant to have daily contact with the individual who had been her harasser, and was continuing to harass her. Obviously, Employer utterly failed to provide Claimant a workplace where she could work without fear of further harassment and/or retaliation.

We find that Claimant’s unwillingness to continue to work in contact with her harasser was reasonable and does not show any lack of good faith effort to preserve employment. Gavlick Personnel Services, Inc. v. Unemployment Compensation Board of Review, 706 A.2d 406, 408 (Pa. Cmwlth. 1998) (promise of future transfer away from harasser to office which did not yet exist was not a sufficient accommodation where claimant would have to work with harasser in the interim); Mutual Pharmaceutical Co., Inc. v. Unemployment Compensation Board of Review, 654 A.2d 37, 41 (Pa. Cmwlth. 1994) (claimant had shown necessitous and compelling reason to quit her job where employer failed to transfer her to shift where she would not have contact with harasser). “[T]here is a certain level of conduct that an employee will not be required to tolerate and … the Court will not place all responsibility upon an employee to resolve his or her work dilemma.

________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

employment - ex-military - USERRA

Murphy v. Radnor Twp – ED Pa.  – November 2012

 

http://www.paed.uscourts.gov/documents/opinions/12D1044P.pdf

 

 

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

provides, in relevant part, as follows:

 

A person who is a member of ... or has an obligation to perform service in a uniformed

service shall not be denied initial employment, reemployment, retention in employment,

promotion, or any benefit of employment by an employer on the basis of that

membership…or obligation.  38 U.S.C. § 4311(a).

 

It elaborates further: “An employer shall be considered to have engaged in

actions prohibited ... under subsection (a), if the person's membership ... is a motivating factor in

the employer's action, unless the employer can prove that the action would have been taken in

the absence of such membership.” Id. at § 4311(c) (emphasis). Thus the statute, by its terms,

prohibits discriminatory actions where a person’s military status is simply a motivating factor,

not the sole motivating factor.

public housing - eviction - criminal conduct that preceded lease

In addition to the Wellston Housing Authority case, below, see 66 FR 28776, at 28781 (5/24/01), which states the following, on the timing of the illegal activity:

" ...

 For public housing, the 1937 Act (section 6(l)(6)), 42 U.S.C.
1437d(l)(6)) requires that a PHA use leases that ``provide that any
criminal activity that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in by a [covered
person] shall be cause for termination of tenancy.'' Thus, the illegal
drug use criterion of section 577 of the 1998 Act adds little regarding
eviction of illegal drug users for the public housing program, but adds
a provision on alcohol abuse. None of the statutes explicitly addresses
the timing of the offending activity. The final rule does not include
the phrase ``during the term of the lease'' that would have been added
by the proposed rule, since that phrase is unnecessary. Activity
occurring only prior to the time the leaseholder signed the lease, or
the household member or guest joined the household or became a guest,
would not be a basis for termination of tenancy. The provision on
consideration of rehabilitation is not included in the eviction
provision itself but is included in the regulatory provisions that
address generally the authority of a responsible entity in making
admission and termination decisions (see Secs. 5.852, 960.203, 966.4,
982.310, and 982.552).   "  [emphasis added]
   

 

                        

---

 

131 S.W.3d 378 (2004)

WELLSTON HOUSING AUTHORITY, Plaintiff/Appellant,
v.
Marilyn MURPHY, Defendant/Respondent.

No. ED 83156.

Missouri Court of Appeals, Eastern District, Division Three.

March 23, 2004.

 

 

http://scholar.google.com/scholar_case?case=13299758204172287375&q=131+sw+3d+378&hl=en&as_sdt=2,39

attorney fees - sec. 1988 - prevailing party - no money damages

Lefemine v. Wideman – US SCt – November 5, 2012

http://www.supremecourt.gov/opinions/12pdf/12-168_9o6b.pdf

Per Curiam

SUPREME COURT OF THE UNITED STATES

STEVEN LEFEMINE, DBA COLUMBIA CHRISTIANS FOR LIFE v. DAN WIDEMAN ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12–168. Decided November 5, 2012

PER CURIAM.

This case concerns the award of attorney’s fees in a suitalleging unconstitutional conduct by government officials. The United States Court of Appeals for the Fourth Circuitheld that a plaintiff who secured a permanent injunction but no monetary damages was not a “prevailing party” under 42 U. S. C. §1988, and so could not receive fees.That was error. Because the injunction ordered the de­fendant officials to change their behavior in a way thatdirectly benefited the plaintiff, we vacate the Fourth Circuit's decision and remand for further proceedings.

child abuse - expungement - privilege - 23 Pa. C.S. 6381(c)

T.D. v. DPW – October 11, 2012 – Commonwealth Court

http://www.pacourts.us/OpPosting/Cwealth/out/581CD12_10-11-12.pdf

Secion 6381(c) of the Child Protective Services Law, setting out rules for privileged communications in child abuse cases, pre-empts all other privilege statutes.

Sec. 6381(c) says that

(c) Privileged communications. – Except for privileged communications between a lawyer and a client and between a minister and penitent, a privilege of confidential communication between husband and wife or between any professional person, including but not limited to, physicians, psychologists, counselors, employees of hospitals, clinics, day-care centers and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse. [emphasis added]

Accrord, B.K. v. Department of Public Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012).

tax sale - notice - incomplete mailing address

Manufacturers and Traders Trust Co. v. Luzerne Co. Tax Claim Bureau – Cmwlth. Court – Oct. 2, 2012

 http://www.pacourts.us/OpPosting/Cwealth/out/2186CD11_10-1-12.pdf

 Tax sale vacated where the address of the notice send to bank was not complete and bank alleged non-receipt.

The address used omitted the term "Attn: General Counsel's Office," which was part of the address listed on the bank's recorded lien document.

 

_________________________________

paternity by estoppel

Pa. Superior Court

http://www.pacourts.us/OpPosting/Superior/out/a15024_12.pdf

 

UC - separation agreement - immediacy of threat of discharge - VQ v. invol. termination

Halldin v. UCBR – Cmwlth. Court – Septemver 19, 2012 – unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2482CD11_9-19-12.pdf

Board denial of benefits reversed where its own findings of fact did not support its legal conclusion that the claimant quit her job when continuing work was available and chance of termination was only speculative.

The Board's own findings of fact showed that claimant met with management to discuss an involuntary separation of employment.” (FOF ¶ 2 (emphasis added).) On the day after this meeting discussing Claimant’s involuntary separation, Employer presented Claimant with the Separation Agreement, in which Employer agreed to pay Claimant severance pay for a period of time in exchange for Claimant signing the Separation Agreement and leaving her employment. Finally, finding of fact 5 states that “[C]laimant signed the Separation Agreement . . . because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement.” (FOF ¶ 5 (emphasis added).)

Notwithstanding these findings of fact, the Board concluded that there was no indication that there would not be continuing work for Claimant had she not signed the Separation Agreement or that Employer would discharge Claimant. Based on these conclusions, the Board found Claimant ineligible for UC benefits.

However, the findings of fact do not support the Board’s conclusions of law but, rather, support the contrary conclusion that Claimant’s signing of the Separation Agreement and voluntarily leaving her employment was done in anticipation of her imminent involuntary discharge. See Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1208 (Pa. Cmwlth. 2011)
_________________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Social Security - Chevron deference - AR 92(6) - cessation of disability

Hagans v. Commissioner of Social Security – 3d Cir. – September 14, 2012

http://www.ca3.uscourts.gov/opinarch/112526p.pdf

In holding that the claimant's disability had ceased, interpreting 42 USC 423(f) and 92 AR-2(6), the court granted a "relatively high level of deference" to SSA's  interpretation of the statute and the AR.

The primary issue in the case was the relevant date for determining whether claimant continued to be disabled  – the date on which the SSA asserts that his disability had ceased or  the date of the ALJ’s hearing or the date of the ALJ’s ruling. . Use of one of these later dates would bolster the claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing.  

The court deferred to the SSA ruling that the earlier date was appropriate.

UC - self-employment - findings on indiv. issues - notice of issues

Cooper v. UCBR - Cmwlth. Court - Sept. 7, 2012 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2118CD11_9-7-12.pdf

Lack of findings

Unfortunately, our ability to perform effective appellate review of whether Claimant is self-employed and ineligible for benefits pursuant to Sections 402(h) and 4(l)(2)(B) is hindered by the lack of factual findings made by the Board in this matter. Although it found that Claimant was free from the direction and control of ECI and Hilton, the Board issued no findings of fact regarding the individual factors necessary for making that determination. Additionally, the Board made no findings of fact regarding whether Claimant was customarily engaged in an independently established trade, occupation, profession or business. In fact, the Board did not address the second prong of Section 4(l)(2)(B) in determining that Claimant was ineligible for benefits as an independent contractor. Thus, we must remand this matter to the Board.

Each prong has a number of factors that will be considered to determine whether a claimant is self-employed. See, e.g., Tracy v. UCBR, 23 A.3d 612, 616 (Pa. Cmwlth. 2011) , , , ,"No single factor is controlling . . . and, therefore, the ultimate conclusion must be based on the totality of the circumstances." Resource Staffing, Inc. v. UCBR, 961 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, we recently have held that "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." Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011). . .. Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

Adequate notice of the issues - We have held that the Board’s regulations, including 34 Pa. Code § 101.107 (what issues can be considered on appeal) "are designed to prevent surprise to claimants." Sharp Equipment Co., 808 A.2d at 1026. Moreover, the Board may only consider what was "delineated in the Bureau’s determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited." Hanover Concrete Co. v. UCBR, 402 A.2d 720, 721 (Pa. Cmwlth. 1979). Thus, "where an applicant has been found ineligible for benefits, this Court will limit the hearing to the reason stated in the Bureau’s determination." Sharp Equipment Co., 808 A.2d at 1026 (second emphasis added).

We do not agree that a party’s due process rights of notice, an opportunity to be heard, and to defend are satisfied when, although a party is provided a general statement as to the section of the Law at issue, the Board bases its determination of ineligibility on a new legal theory that had not been raised or addressed in the prior proceedings or, most importantly, during the Referee’s hearing at which a party is supposed to have an opportunity to present evidence in support of his or her eligibility

While the overall legal issue has been whether Claimant was engaged in self-employment, the legal basis for that determination has differed at each stage of the proceedings in this matter.  A remand is also required for these reasons.

________________

 The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - willful misconduct - email - threat - use of capital letters

Aversa v. UCBR – Cmwlth. Court – Sept. 13 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1744CD11_9-13-12.pdf   (2-1)

Neutral words are converted into threat by use of CAPITAL LETTERS

When claimant perceived he was wrongfully removed from a sales region, he wrote to the person who replaced him, stating: Hey Jim, you set me up pretty good … I WON’T FORGET IT.”  The employer fired him for threatening conduct.  The UCBR denied benefits.

The Board did not believe Claimant’s statement that he did not intend to convey a threat, but that credibility determination is not substantive evidence that Claimant did, in fact, intend a threat. An adverse credibility determination is not itself substantial evidence.

To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat.  The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat.  The manager did not consider the fact that capitalized letters in an e-mail are still quite small.

The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously.  The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.

The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.

In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.

Accordingly, we reverse

UC - self-employment - indpt. contractor - 2-prong test

Jia v. UCBR - Cmwlth. Court - Septe.ber 7, 2012 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2459CD11_9-7-12.pdf

In employment cases, an individual receiving wages for his services is presumed to be an employee, and the employer bears a heavy burden to overcome that presumption. Thomas Edison State Coll. v. UCBR, 980 A.2d 736, 741 (Pa. Cmwlth. 2009). To overcome this statutory presumption of employment, the employer must show that the individual performed the work free from the employer's control and direction, and that the work was done for others, not just the employer, as part of an independent trade. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2006). “[U]nless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee].” C.A. Wright Plumbing Co. v. UCBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc); see also Sharp; Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).

We hold that Employer did not overcome the strong presumption of Claimant’s status as an employee. While we question the Board’s determination regarding Employer’s purported control over Claimant, it is clear the Board erred in its resolution of the second prong involving an independent trade or business.

The Board’s only analysis of the two-prong test consists of three sentences: "The claimant worked pursuant to the independent contractor agreement both under the contract of service and in fact. The claimant had an independent business as an independent contractor. Therefore, the claimant was an independent contractor." The Board’s only finding related to his status as an independent contractor is a finding of fact that Claimant "could work for other contractors as long as there was no conflict of interest." The fact that Claimant signed a consulting contract is not dispositive of the work relationship. Nevertheless, the Board’s decision appears to rely entirely upon the existence of the consultant contract.

In considering the second prong of the test, we examine whether: (1) the claimant was capable of performing the activities in question for anyone who wished to avail themselves of his services; and, (2) the nature of the business compelled the claimant to look to only a single employer for continuation of work. Venango.

This Court recently emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business in Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa. Cmwlth 2012). Similarly, and significantly, the record here lacks any evidence that Claimant customarily engaged in an independent business or performed programming services for any other business. As in Minelli and Sharp, Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence. The single act of signing the consulting contract here does not suffice. Sharp. The contract language providing that Claimant could work for others does not establish that he engaged in an independent business, and did work for others. Minelli. Moreover, the scope of work requires Claimant to work in Employer’s offices during specified business hours, thus undermining his ability to work for others. See Sharp. The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.
-------------------

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Juvenile - notice of adjud. of delinquency to "school" includes colleges and universities

In the Interest of S.D., a minor - Superior Court - September 5, 2012

http://www.pacourts.us/OpPosting/Superior/out/s36029_12.pdf

Provision of Juvenile Act, 42 Pa.C.S.A. § 6341(b.1), which requires notice to minor's school of adjudication of delinquency, requires notice to colleges and universities as well as other schools.

frivolous litigation - pro se plaintiff - Rule 233.1

Gray v. Buonopane - Superior Court - August 22, 2012

http://www.pacourts.us/OpPosting/Superior/out/s28004_12.pdf

Discussion of Rule 233.1 - frivolous litigation, pro se plaintiffs, motion to dismiss.

admin. law - burden of proof - procedure where non-burdened party does not appear

V.W. v. DPW - Cmwlth. Court - August 24, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf

Dismissal of appeal from decision in child abuse expungement case reversed, where

a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.

Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.

Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).

Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."

In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).

The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.

civil procedure - dismissal for lack of service by sheriff

Fonzone v. Tribune Corp. - Superior Court - August 31, 2012

http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf

Dismissal of case for lack of proper service affirmed.

Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.

Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:

Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).

UC - vol. quit - abusive language by employer

Vito Rinaldi Chevrolet v. UCBR - August 16, 2012 - unreported memorandum decision (2-1)


http://www.pacourts.us/OpPosting/Cwealth/out/139CD12_8-16-12.pdf

The court remanded the case for findings about the employer's offer of other employment but sustained the board's findings that claimant had good cause to quit because of abuse language by a supervisor on two separate occasions. ("If you can’t handle your customers, there’s the F’in door.". . . "you know what F you. F you and F your 17 cars you sold last month, I’m tired of it, F you."

Profanity in the workplace and abusive conduct may present adequate justification to terminate one’s employment, and a claimant need not be subjected to such language or conduct indefinitely. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa. Cmwlth. 2003). However, a claimant must make a reasonable effort to maintain his employment, such as informing his supervisor of the offensive or abusive conduct. Id. See also First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008),

The dissent would have just sustained the board's grant of benefits and not remanded.

UC - free-lance writer - self-employment - 2-part test - indpt. trade - burden of proof

Mitchell v. UCBR - Cmwlth. Court - August 17, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1910CD11_8-17-12.pdf

In an unemployment compensation benefits proceeding, the determination of whether claimant is or is not self-employed is a question of law subject to review by Commonwealth Court. Melnychuk v. UCBR, 520 A.2d 89 (Pa. Cmwlth. 1987). Because section 402(h) of the Law does not define the term "self-employment," our courts look to section 4(l)(2)(B) of the Law, which defines "employment" 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(1)(2)(B).

This Court has repeatedly held that for a claimant to be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. UCCBR, 34 A.3d 893 (Pa. Cmwlth. 2011). Typically, the employer has the burden of proving that a claimant is self-employed, but where, as here, the bureau commences proceedings that culminate in a suspension of benefits due to self-employment, the bureau carries the burden. Id.

In Buchanan v. UCBR, 581 A.2d 1005 (Pa. Cmwlth. 1990), we held that setting up a booth at a flea market to sell homemade jewelry did not constitute customary engagement in an independently established trade, occupation, profession or business even where the claimant had invested $2,028.00 to buy tools and spools of gold chain for the project. More recently, this Court held that evidence that the claimant was performing limited work as a consultant on an as-needed basis and performed only a total of twenty-two hours of work over a three day basis was “simply not enough to demonstrate that Claimant is customarily engaged in an independently established trade, occupation, profession, or trade.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (internal quotations omitted).

In the present case, Claimant was found eligible for and was receiving benefits after the loss of his previous employment, and he properly reported his minimal earnings to the Department. Like the claimants in Minelli and Silver, Claimant has performed a small amount of work on an as-needed, de minimus basis. There is no evidence indicating that Claimant intended to establish his own business, and, pursuant to Minelli and Silver, we conclude that writing ten articles while actively seeking full-time employment does not amount to becoming “customarily engaged in an independently established trade, occupation, or business,” under section 4(l)(2)(B), rendering Claimant ineligible for benefits under section 402(h) of the Law.

Accordingly, the Board’s order is reversed.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.