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

 

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.

UC - voluntary quit v. discharge - capricious disregard

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

 

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

 

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

 

Capricious disregard

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

 

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

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

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

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

 

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

 

Voluntary quit v. discharge

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

 

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

 

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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.

 

 

tax sale - reasonable efforts to locate taxpayer

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

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

 

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

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

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

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

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

UC - voluntary quit - firm offer of new job

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

 

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

 

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

 

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

 

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

 

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

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

UC - self-employment not established

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

 

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

 

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

 

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

 

Burden of proof on DOLI

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

 

Self-employment

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

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

 

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that—(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.

 

43 P.S. § 753(l)(2)(B). This court has consistently held that before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).

 

Claimant not engaged in self-employment

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

 

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

 

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

 

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

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

UC - willful misconduct - burden of proof - claimant testimony - duty of referee

Wagner v. UCBR – Cmwlth.  Court – March 11, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/427CD14_3-11-15.pdf?cb=1

 

This claimant was hoisted by his own petard.  

 

The employer did not appear at the hearing, at which the issue was willful misconduct.  Claimant did appear and testified.  Some of the testimony was elicited by the referee’s questions to claimant.

 

The court rejected Claimant’s argument that the Referee should have adjourned the hearing when Employer failed to appear and granted him unemployment compensation. Claimant’s argument misconstrues both the assignment of the burden of proof and the role of the Referee under the Law.  A referee is charged with informing the parties of their rights, the procedure to be followed, and with developing an adequate record, which includes clearly establishing the allegations made and the facts at issue to insure that compensation is paid in instances where a claimant is eligible and that it is not paid where a claimant is ineligible under the Law. Bennett v. UCBR, 445 A.2d 258, 259 (Pa. 1982); 1982); Hackler v. UCBR, 24 A.3d 1112, 1116 (Pa. Cmwth. 2011); Robinson v. UCBR, 431 A.2d 378, 379 (Pa. Cmwlth. 1981); see also 34 Pa. Code § 101.21.

 

The referee is not required to “advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.” Brennan v. UCBR, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (internal citations omitted).   In unemployment compensation matters, “the assignment of the burden of proof to one or the other party can only be understood as an indication of the quantum of evidence required to sustain a result in a party’s favor. The question of the sufficiency of the evidence must be examined against the complete record. The effect of the claimant’s testimony remains the same whether presented before or after an employer’s.” Vann v. UCBR, 494 A.2d at 1081, 1085 (Pa. 1985). As this Court and our Supreme Court have repeatedly made clear, the referee is not there to act as an advocate for the claimant and “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Id. at 1086 (quoting Groch v. UCBR, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).

 

A claimant’s admissions are sufficient to carry an employer’s burden. Sargent v. UCBR, 630 A.2d 534, 537 (Pa. Cmwlth. 1993) (“Employer in this case did not present any evidence. Claimant, however, chose to testify and [our] Supreme Court has made it clear that in such a situation a claimant’s own testimony can be a basis to deny benefits.”); Robinson, 431 A.2d at 379 (“[claimant] himself admitted that he neither reported to work as instructed on October 22 nor notified his employer of the reason for his absence. It is, therefore readily apparent that claimant is guilty of willful misconduct and that his employer has met its burden in that regard.”); Rodgers v. UCBR, 397 A.2d 1286, 1288 (Pa. Cmwlth. 1979) (holding that the claimant’s own testimony carried the employer’s burden of proof).

 

The evidence supporting the Board’s findings of fact consists of documents submitted into the record by both Claimant and Employer, and testimony offered by Claimant at the continued hearing and at the remand hearing. Contrary to Claimant’s contention, Employer was not required to offer testimony in order to carry its burden under the Law. Claimant had an opportunity to object to the documentary evidence submitted by Employer and declined to do so.

 

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

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

 

 

UC - 43 P.S. 829 - no collateral estoppel use of UC decision in later/separate case

Mathis v. Christian Plumbing and Heating – ED Pa. – March 21, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0183P.pdf

 

Plaintiff was not collaterally estopped by an adverse result in a UC case, Mathis v. UCBR, 64 A.3d 293 (Pa. Cmwlth. 2013), from suing former employer under Title VII of the Civil Rights Act and the Pa. Human Relations Act for improperly terminating his employment because of Plaintiff’s covering his work i.d. badge, which included language that the company is a “ministry” and run “in a way most pleasing to the lord...”

 

 The court held that the clear language of 43 P.S. sec. 829 precluded the application of collateral estoppel.  Sec. 829 states that “[n]o finding of fact or law, judgment, conclusion or final order made with respect to a claim for unemployment compensation under this act may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.”

 

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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 - willful misconduct - use of work phone/computer for personal business

Oyetayo v. UCBR – March 4, 2015 – Cmwlth. Court

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/393CD14_3-4-15.pdf?cb=1

 

Claimant disqualified for willful misconduct and violation of employer rule against person use of work telephone and computer (email), after having receiving two prior warnings about zero tolerance policy.

 

De minimis rule not applicable after warning about strict enforcement.

While an employee at Employer would normally be permitted to engage in the occasional use of his work computer for personal email, Claimant was not a normal employee; instead the Board found that Claimant had been issued written warnings that directed him not to engage in any unauthorized use of Employer’s resources for personal reasons. Claimant’s argument that his personal email use fell within the de minimis exception therefore fails because Employer had advised Claimant that his prior personal use of Employer’s resources had exceeded what was allowed and any future use would be seen as a violation of Employer’s rules.

 

Doing personal things at work

There is no question that Claimant’s conduct was not merely negligent but rather of an intentional and deliberate nature. Grieb v. UCBR, 827 A.2d 422, 426 (Pa. 2003).   Moreover, this Court has on numerous occasions determined that a claimant’s use of work time to engage in personal affairs without authorization was willful misconduct even where not prohibited by a specific work rule because it was contrary to reasonable standards of behavior that an employer can expect from its employees. See, e.g., Pettyjohn v. UCBR, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (holding that access of internet for personal reasons  during working hours after being advised not to constituted willful misconduct); Baldauf v. Unemployment Compensation Board of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004) (holding that the claimant engaged in willful misconduct by accessing personal email and non-work related websites while being paid to work); Wetzel v. UCBR, 370 A.2d 415, 417 (Pa. Cmwlth. 1977) (holding that the claimant, whose employment was terminated for crocheting at work despite several warnings not to do so, had engaged in willful misconduct). Furthermore, “[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in...cases where...the employee has been warned and/or reprimanded for prior similar conduct.” Ellis v. UCBR, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) ....Accordingly, because Claimant knowingly violated Employer’s work rule and because Claimant has not put forward any argument that he had good cause for violating the work rule, we hold that the Board did not err in concluding that Claimant was ineligible for benefits due to willful misconduct.

 

No duty to provide copy of record absent request by Claimant

Claimant cites no authority which imposes an affirmative duty on the Board to send a claimant a copy of the record at the same time as it is sent to this Court.  Instead, the applicable Board regulations provide that “[i]n the event of an appeal from the decision of the Board to the Commonwealth Court, a party may request a transcribed copy of the record of the testimony, and it shall be furnished without charge.” 34 Pa. Code § 101.71 (emphasis added). The Board’s regulations further provide that: When an interested party or his representative requests information from the file of the Board in order to present and maintain the issues...in an appeal to the Court, such information (including the hearing transcript, where the record has been transcribed) shall be made available at a reasonable time to the party and his representative, without charge,...for examination, copying and making notations therefrom.

34 Pa. Code § 101.54(b) (emphasis added). As there is no allegation that either Claimant or his attorney requested a copy of the record from the Board and the Board denied such a request, the Board did not act inappropriately or deny Claimant his due process rights by failing to send Claimant a copy of the certified record.

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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.

 

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/

 

 

 

tax sale - disputed facts - right to hearing - Battisti v. Tax Claim Bureau

Estate of Filchner – Cmwlth. Court – March 9, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2097CD13_3-9-15.pdf?cb=1

 

Following its decision in Battisti v. Tax Claim Bureau, 76 A.3d 111 (Pa. Cmwlth. 2013), the court held that where a petition to set aside a tax sale raises disputed issues of fact, the court must hold a hearing and take evidence, rather than summarily resolving the facts on its own.

 

In granting a party’s motion for judgment on the pleadings, the trial court denied Taxpayer’s objections without an evidentiary hearing, and thereby denied Taxpayer due process. Battisti, 76 A.3d at 116.  Due process under the United States and Pennsylvania Constitutions must be satisfied whenever the government subjects a citizen’s property to forfeiture for nonpayment of taxes. Geier v. Tax Claim Bureau of Schuylkill County, 588 A.2d 480 (Pa. 1991). Once Taxpayer presents a prima facie challenge to the tax sale, the burden shifts to the Tax Claim Bureau to prove strict compliance with the notice provisions of the RETSL. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289-90 (Pa. Cmwlth. 1996). Where there is a factual dispute, a taxpayer is entitled to an evidentiary hearing and remanded the case to the trial court.

 

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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/

 

Therapeutic support services - medical necessity standard

C.M. v. DPW – Cmwlth. Court – March 11, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2123CD13_3-11-15.pdf?cb=1

 

TSS services are medical services administered by the Department, not educational services subject to administration by the State Board of Education or the Department of Education and governed by regulations promulgated pursuant to the IDEA. Therefore, the provision of TSS services is subject to the medical necessity standard established in relation to the MAP program rather than the IDEA’s least restrictive environment standard.

 

__________________

 

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/

 

UC - willful misconduct - ER-claimant agreement not an admission of wrongful conduct

Bennett v. UCBR – Cmwlth. Court – March 4, 2015 – memorandum opinion – not reported

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/710CD14_3-4-15.pdf?cb=1

 

Private agreement between employer and claimant to change job termination to 12-day suspension is not an admission of the conduct that resulted in the suspension.  It is merely a settlement between the parties.  Without the agreement being admitted into evidence and without testimony regarding the content of the agreement, the UCBR cannot assume that claimant admitted violating the employer’s rules.   There was no testimony or other evidence in the record to support a finding that the agreement constituted an admission of employer rules.

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If this 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/

 

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

 

tax sale - partnership - notice to each partner/owner

Dwyer v. Luzerne Co. Tax Claim Bureau – Cmwlth.Court – February 17, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/680CD14_2-17-15.pdf?cb=1

 

Commonwealth Court affirmed lower court decision setting aside tax sale of partnership-owned property where Partner/Owner B signed for certified mail notice sent to Partner/Owner A – i.e., no notice delivered separately to non-signing partner A – and no evidence in the record of authority of one to sign for certified mail for the other.

 

The statutory notice provision of  the Law provides that the Bureau shall give notice of the sale “[a]t least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.” 72 P.S. §5860.602(e)(1).

 

 “Restricted delivery” is mail “delivered only to the addressee or the person he specifically authorizes in writing to receive his restricted delivery mail.” . . . Here, the receipt shows that the certified mail addressed to Owner A was signed for by Owner B. “Even when a return receipt is signed, the signature must belong to someone authorized by the owner to accept certified mail.” . . . .There is nothing in the record evidencing Owner B’s authority to sign for certified mail addressed to Owner A.

 

Because Owner A did not sign for the certified mail addressed to him, in accordance with section 607.1(a) of the Law, the Bureau was required to further investigate his whereabouts. Specifically, section 607.1(a) of the Law requires reasonable notification efforts when “mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee . . . .” 72 P.S. §5860.607a(a).

 

Here, the tax claim bureau conceded that although Owner A did not sign for the certified mail addressed to him, the Bureau did not make any effort to discover his whereabouts and notify him. Thus, the trial court properly concluded that the Bureau failed to comply with the Law’s notice provision.

 

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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/