Pennsylvania’s Child
Protective Services Law (CPSL) recognizes that, in order to further important
public policy, privileged communications may need to give way to the
prosecution of child abuse. Under the CPSL, confidential communications between
spouses are admissible in any proceedings regarding child abuse or the
cause of child abuse. 23 Pa.C.S.A. § 6381(c).
See also, B.K. v. Department of Public Welfare, 36 A.3d
649 (Pa. Cmwlth. 2012).
Wednesday, January 16, 2013
child abuse - spousal privilege does not apply
Commonwealth v. Hunter –
Superior Court – January 15, 2013
Friday, January 11, 2013
public housing - applicant - no right to appeal denial - no "adjudication"
R. McKinley v. Housing Authority of the City of Pittsburgh - 211 C.D. 2012
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Po
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Commonwealth Court
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Colins, Senior Judge
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12/21/2012
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Reported
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Majority Opinion
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PUC - manuf. home communities - foreign load - accounts not individually metered
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1-A Realty v. PA PUC - 885
C.D. 2012
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Posted by:
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Commonwealth Court
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Opinion by:
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Covey, J.
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Date:
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01/04/2013
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Opinion status:
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Reported
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Majority Opinion
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Wednesday, January 09, 2013
UC - voluntary layoff proviso
Diehl v. UCBR – Pa.
Supreme Court – December 28, 2012
Upon application of our rules of statutory construction, we reverse the decision of the Commonwealth Court and conclude that the UC Law does not preclude application of the VLO Proviso to early retirement plans offered pursuant to employer-initiated workforce reductions.
We granted review to consider whether the “voluntary
layoff option” proviso (“VLO Proviso”) contained in Section 402(b) of the
Unemployment Compensation Law (“UC Law”), 43 P.S. § 802(b),1 permits employees to receive
unemployment compensation benefits when they accept an early retirement plan
offered pursuant to an employer-initiated workforce reduction.
Upon application of our rules of statutory construction, we reverse the decision of the Commonwealth Court and conclude that the UC Law does not preclude application of the VLO Proviso to early retirement plans offered pursuant to employer-initiated workforce reductions.
Thursday, December 13, 2012
Pennsylvania Constitution - substantive due process - lifetime employment ban - old criminal conviction
This new en banc Cmwlth Court
decision finds the new lifetime bans on employees/contractors/etc… who have
certain enumerated criminal records unconstitutional (as applied) because they
violate substantive due process under art 1, sec 1 of the Pennsylvania Constitution
Because
24 P.S. §1-111(e)(1) creates a lifetime ban for a
homicide offense that has no temporal proximity to Johnson’s present
ability to perform the duties of his position, and it does not bear a real and
substantial relationship to the Commonwealth’s interest in protecting children,
it is unreasonable, unduly oppressive and patently beyond the necessities of
the offense. As a result, 24 P.S. §1-111(e)(1) imposes unusual and
unnecessary restrictions upon Johnson’s lawful employment as a
“Fatherhood Facilitator” with AIU and it is unconstitutional as violative
of his substantive due process rights. . .
Friday, November 16, 2012
statutes - passage - single-subject - Art. III, sec. 3 - Pa. Constitution
Sernovitz v. Dershaw- Pa. Super. November 14, 2012
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.
Tuesday, November 13, 2012
UC - wages - full-time student employed by school s/he is attending
Miller v. UCBR – Cmwlth. Court – November 13, 2012
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.
Thursday, November 08, 2012
UC - sexual harassment - vol. quit
Consolidated Scrap v. UCBR – November 8, 2012 –
unpublished memorandum opinion
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.
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.
________________
Wednesday, November 07, 2012
employment - ex-military - USERRA
Murphy v. Radnor Twp – ED Pa. – November 2012
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]
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.
v.
Marilyn MURPHY, Defendant/Respondent.
Missouri Court of Appeals,
Eastern District, Division Three.
March
23, 2004.
Tuesday, November 06, 2012
attorney fees - sec. 1988 - prevailing party - no money damages
Lefemine v. Wideman – US
SCt – November 5, 2012
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.
Monday, October 15, 2012
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
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).
Tuesday, October 02, 2012
tax sale - notice - incomplete mailing address
Manufacturers and Traders Trust Co. v. Luzerne Co. Tax Claim
Bureau – Cmwlth. Court – Oct. 2, 2012
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.
_________________________________
Tuesday, September 25, 2012
Wednesday, September 19, 2012
UC - separation agreement - immediacy of threat of discharge - VQ v. invol. termination
Halldin v. UCBR – Cmwlth. Court – Septemver 19, 2012 –
unpublished memorandum opinion
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).)
_________________________
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.
Tuesday, September 18, 2012
Social Security - Chevron deference - AR 92(6) - cessation of disability
Hagans v. Commissioner of Social Security – 3d Cir. –
September 14, 2012
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.
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.
Friday, September 14, 2012
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)
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
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
Friday, September 07, 2012
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.
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.
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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.
Thursday, September 06, 2012
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.
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.
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