UC - late appeal - failure to report change of address

Duhigg v. UCBR – Cmwlth. Court – December 13, 2017

order to report opinion            http://www.pacourts.us/assets/opinions/Commonwealth/out/412CD17ORD_3-20-18.pdf?cb=1

opinion                                  http://www.pacourts.us/assets/opinions/Commonwealth/out/412CD17_3-20-18.pdf?cb=2

Held:  Claimant’s appeal rejected due to untimeliness, resulting from “her own failure to notify the Department of her changed address” and, hence, her lack of notice of the determinations.

From the opinion:

Mandatory time-limit on appeal period

Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith. 43 P.S. §821(e).

“This fifteen-day time limit is mandatory; if an appeal is not timely filed within the specified time period, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter.” McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006) (citation and internal quotation marks omitted).

In certain instances, this limitation can be waived if a claimant “presents adequate excuse for his delay; however, the claimant carries a heavy burden in such cases and is required to prove more than mere hardship . . . .” Staten v. UCBR, 488 A.2d 1207, 1209 (Pa. Cmwlth. 1985). If the claimant meets that burden, a nunc pro tunc appeal may be allowed if there are “extraordinary circumstances involving fraud or some breakdown in the administrative process caused by the delay in filing.” McClean, 908 A.2d 959. Our Supreme Court has explained that an administrative breakdown occurs “where an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corp. v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000). 

Presumption of receipt of notices

“Notices . . . to unemployment claimants which state the last day to file an appeal therefrom and which are properly addressed and not returned by the postal authorities are presumed to be received, and a claimant's appeal which is not filed within fifteen calendar days after notice of the action was mailed to a claimant's last known address is not timely filed. Without proof of fraud or its equivalent, there is a presumption of regularity of the acts of public officials such as unemployment compensation authorities. Because appeal provisions of [the] Law are mandatory, claimants carry a heavy burden to justify untimely appeals and, absent proof of fraud, cannot prevail. Something more than mere hardship is necessary to justify an extension of time, or its equivalent allowance of the act nunc pro tunc. Exceptions have been recognized, for example, where the presence of fraud or its equivalent is shown, or where a person is misled by an authorized official.”  Ferraro v. UCBR, 464 A.2d 697, 698-99 (Pa. Cwmlth. 1983).

Here, the untimeliness of Claimant’s appeal resulted from her own failure to notify the Department of her changed address.  No evidence of record exists to suggest that Claimant notified the United States Postal Service of her relocation to take advantage of its mail forwarding services. The record also fails to reveal any fraud, misrepresentation, or neglect of the Department.  Therefore, the untimeliness of Claimant’s appeal was not caused by a breakdown of the administrative process, and nunc pro tunc relief is not appropriate in this case.

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corporations - corp. officer liability - participation theory

B & R Resources  v. Dept. of Envir. Protection – Cmwlth. Court – 3-15-18

http://www.pacourts.us/assets/opinions/Commonwealth/out/1234CD17_3-15-18.pdf?cb=1

Under Pennsylvania law, a corporate officer can be liable in tort for his own wrongful conduct on behalf of the corporation, even though the corporation is not a sham and there is no basis for piercing the corporate veil. Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89-90 (Pa. 1983); Francis J. Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. 1997); Bank of Landisburg v. Burruss, 524 A.2d 896, 901 (Pa. Super. 1987).

This basis of individual liability, known as the participation theory, is predicated on the corporate officer’s own actions and participation in the corporation’s wrongful conduct, rather than the corporation’s status and his relationship to the corporation. Wicks, 470 A.2d at 89-90. In Wicks, our Supreme Court explained: “The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.” …

Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful acts. Therefore, corporate officers may be held liable for misfeasance. Nevertheless, corporate officers and directors may not be held liable for mere nonfeasance. Thus, the mere averment that a corporate officer should have known the consequences of the liability-creating corporate act is subject to a motion to strike for impertinence and proof of that averment alone is insufficient to impose liability.

UC - overpayment - fault - claimant's state of mind

Cumpston v. UCBR – Cmwlth. Court – March 12, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/849CD17_3-12-18.pdf?cb=1

Held:  Board’s finding that overpayment was due to claimant’s fault was “unsupported by either the record or [the Board’s] own factual findings.

The term “fault” in Section 804(a) of the Law is defined as “an act to which blame, censure, impropriety, shortcoming or culpability attaches.” . . . . A “blameworthy act requires a showing of the actor’s state of mind” and “embodies . . . knowing recklessness or gross negligence.” . . . .A finding of fault “requires conduct ‘of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.’” . . . . “Conduct designed improperly and intentionally to mislead [the Department] is sufficient to establish a fault overpayment.” . . . .  However, where the claimant’s failure to provide information is due to negligence, mistake, or confusion, he or she cannot be held liable for a fault overpayment . . . .

Here, the Board made no factual findings regarding Claimant’s state of mind; it merely found that she “did not disclose that she refused continued work in a different department.” . . . .This finding, however, is belied by the record. Although Claimant testified that she did not believe she was offered a job, the record establishes that she did, in fact, notify the Department of a discussion about continuing work in another department.  Claimant also testified to these facts at the hearing, and neither the referee nor the Board discredited that portion of Claimant’s testimony

Most significant, perhaps is the Board’s own finding, in addressing the penalty provisions of Section 801 of the Law, that Claimant “did not knowingly make a false statement” to the Department when she applied for benefits.

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

*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - sideline business - net income

Lerch v. UCBR – Cmwlth. Court – March 12, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/748CD17_3-12-18.pdf?cb=1

Held:  The UCBR improperly calculated claimant’s income from a sideline business by failing to deduct all of her reasonable business expenses, instead of the very limited ones authorized by 34 Pa. Code sec. 65.121, which had previously been held to be improper by two court decisions.  The case was remanded with directions to the Board to recalculate claimant’s UC benefits, consistent with the court holdings as to what is “net income.”

- The term “’net earnings’ must have its plain everyday meaning...[which is] what remains after deducting expenses.”

- “The Board is not free to continue following a regulation that an appellate court has deemed unauthorized.”

UC - able and available - sec. 401(d)(1)

Cotto v. UCBR – Cmwlth. Court – MARCH 9, 2018 – unreported memorandum opinion*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1486CD16_3-9-18.pdf?cb=1

The court affirmed the UCBR conclusion that the claimant did not show that she had an attachment to the job market,  in that she had failed to indicate what job that she could perform in which she could miss work on a regular basis, have a modified work schedule when she does attend work, attend frequent doctor’s appointments, and sleep as necessary throughout the day. R.R. at 179a. We discern no error in the UCBR’s conclusion.

Claimant’s restrictions so limited her availability “as to effectively remove [her] from the labor market.” Rhode, 28 A.3d at 243 (quoting Harwood, 531 A.2d at 826).   The court was sympathetic to Claimant’s health restrictions, but held that she did not produce any evidence of what job she is capable of performing within her restrictions or “that there is a reasonable opportunity for securing such work[.]”   The UCBR properly determined Claimant was not able and available for work. Rhode, 28 A.3d at 243.

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From the opinion

Section 401(d)(1) of the UC Law provides, in part, that ‘[c]ompensation shall be payable to any employee who is or becomes unemployed and who . . . [i]s able to work and available for suitable work.’ The burden of proving availability for suitable work is on the claimant. An unemployed worker who registers for unemployment is presumed to be able and available for work.  This presumption is rebuttable by evidence that a claimant’s physical condition limits the type of work he is available to accept or that he has voluntarily placed other restrictions on the type of job he is willing to accept. If the presumption of availability is rebutted, the burden shifts to the claimant to produce evidence that he is able to do some type of work and that there is a reasonable opportunity for securing such work.

‘The real question is whether [the c]laimant has imposed conditions on his employment which so limit his availability as to effectively remove him from the labor market.’ Harwood v. UCBR, . . . 531 A.2d 823, 826 ([Pa. Cmwlth.] 1987). Rhode v. UCBR, 28 A.3d 237, 242-43 (Pa. Cmwlth. 2011)  “‘[T]he determination of whether a claimant is available for work as required by Section 401(d)[(1)] of the Law is a question of fact for the [UCBR.]’” Craig v. UCBR, 442 A.2d 400, 401 (Pa. Cmwlth. 1982) (quoting Goodwin v. UCBR, 378 A.2d 1308, 1310 (Pa. Cmwlth. 1977)). Further, “the [UCBR] is the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. . . . Where substantial evidence supports the [UCBR’s] findings, they are conclusive on appeal.” Ductmate Indus., Inc. v.  UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - findings, reasons - both parties absent from hearing

Kremis v. UCBR – Cmwlth. Court – March 5, 2018 – unreported memorandum decision*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1356CD17_3-5-18.pdf?cb=1

The court remanded the case for a) further findings of facts and reasons, so that the court could exercise appellate review OR b) order a new hearing, where

            - neither party attended the referee hearing

            - the referee based his decision, for the employer, solely on documents

            - the referee made only two findings of fact – 1) claimant work dates, and 2) that claimant quit his job

            - the referee did not offer any reasons for his finding that claimant quit his job.

From the opinion:

Absence of parties – Neither party appeared at the hearing.  “When that occurs, 34 Pa. Code sec. 101.51 provides:  If any party duly notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. (Emphasis added.) See also Gadsden v. Unemployment Compensation Board of Review, 479 A.2d 74 (Pa. Cmwlth. 1984) (holding that 34 Pa. Code § 101.51, taken together with Section 502 of the Law,4 allows referees to decide the merits of a UC claim, even in the absence of both parties)

Findings and reasons:   “While 34 Pa. Code § 101.51 provides that in the absence of the parties, the Referee may make a decision based upon the pertinent available records, the Referee is still not excused from making findings and explaining the rationale for the determination. Eckert v. UCBR, 483 A.2d 1059 (Pa. Cmwlth. 1984). Where findings are not made which may be legally determinative of a claimant’s eligibility for unemployment benefits, it is not possible for this Court to perform appellate review. McGoldrick v. UCBR, 526 A.2d 461, 463 (Pa. Cmwlth. 1987). . . . Neither the Referee nor the Board explained why they accepted Employer’s version of events rather than Claimant’s version that he was terminated without just cause.”

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - willful misconduct - employer rule v. statute

Crabbe v. UCBR – Cmwlth. Court – February 28, 2018 – en banc – 28 pp.

http://www.pacourts.us/assets/opinions/Commonwealth/out/455CD16_3-5-18.pdf?cb=2

Held: Claimant committed willful misconduct by failing to get her background checks updated by the date specified in her employer’s regulations, July 1, rather than the deadline specified in the relevant statute, December 31. 

Majority -- The majority found that claimant, the manager for a Police Athletic League facility,  had waived the argument about the disparity between the ER rule and the statute and that, even if she hadn’t, she committed willful misconduct by violating the ER rule.  The majority relied heavily on the fact that claimant had received numerous reminders about the need to renew her background checks---even though date specified by the ER and the UC authorities was not consistent with the date in the relevant statute.

 Dissent---The two dissenters “would hold that in a willful misconduct case, the failure of the employer to explain why its new rule deviates from the predicate statutory requirements is fatal to its attempts to defeat unemployment compensation for the terminated employee. Stated differently, [they]I would reverse the denial of unemployment benefits because Employer failed to explain why its new rule was reasonable in light of the deviation from the predicate statutory requirements.” 

The dissent also noted that ‘[a]t the time of termination, Claimant had two of the three clearances required. Further, she had paperwork establishing that she applied for the third clearance. In fact, she applied with the help of her supervisor. Claimant physically received the last clearance after she was terminated. . . .However, there were no findings by the UC authorities, and hence no fact-based discussion by the Majority, as to why Claimant’s “paper trail” or “proof of applications” did not satisfy Employer’s new rule. To the contrary, the UC authorities, after noting Employer’s “paper trail” rule . . . . found that Claimant was escorted from the building . . . .did not have all the clearances submitted to the employer as required under the Law.” . . . .The UC authorities made no findings whatsoever as to the dates of Claimant’s applications or her ‘paper trail.’”

The dissent also noted that the “ ‘proof of applications’ question was specifically raised in Claimant’s appeal to the Board, but the Board never answered it. . . . .(“Claimant had previously been told that as long as she documented her continuing efforts to get the certification, she would not be terminated. [Employer] terminated her despite this promise.”). This unexplained gap in factual findings, together with the referee’s erroneous legal statement as to the statutory compliance date for Claimant, cause real concern whether the UC authorities’ misunderstanding of the predicate statutory requirements clouded their judgment as to conduct amounting to willful misconduct.”

Without citing any supporting case law, both the dissent and majority recognized that “an employer’s prerogative to impose rules which are more stringent than those set by the General Assembly.”

employment - licensure - cosmetologist - criminal conviction - mitigating evidence

Bentley v. State Board of Cosmetology – Cmwlth. Court – February 28, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/648CD17_2-28-18.pdf?cb=1

Held:  Decision of Board suspending cosmetologist’s license for three years reversed and case remanded, with directions to the Board to consider the unrebutted evidence in mitigation that she presented.

Employee has been licensed since 2007.  In 2013 and 2014, she was convicted of felony drug offenses, for which she served two years in prison.  She disclosed the convictions to the Board.  She was re-employed within a couple of months after her release.   

A year after her release, the Board directed her to show cause why her license shouldn’t be suspended.  Her current employer offered strong supportive evidence.  The Board relied solely on the criminal records.  The hearing examiner found her credible and entered eleven (11) findings about the mitigating evidence.  The Board did not adopt any of the findings, stating only that the mitigating evidence was “modest” and otherwise giving it no consideration.   The Board did not explain if it disagreed with the mitigation findings or why it did not adopt them.  

A professional licensing board may use a hearing examiner to take evidence, but the ultimate fact finder is the board. Pellizzeri v. Bureau of Professional and Occupational Affairs, 856 A.2d 297, 301 (Pa. Cmwlth. 2004). An administrative agency is not required to adopt the hearing examiner’s proposed findings of fact. See Bucks County Public Intermediate Unit No. 22 v. Department of Education, 529 A.2d 1201 (Pa. Cmwlth. 1987). However, in reaching its decision, the Board must review the entire record and consider all evidence, including evidence of mitigating circumstances. See Markel v. Bureau of Professional and Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and Salespersons, (Pa. Cmwlth., No. 1800 C.D. 2013, filed May 8, 2014) (unreported). Here, the Board’s adjudication recited that it “reviewed the entire record,” but its “conclusory recital cannot be reconciled with the Board’s adjudication, which does not address the hearing examiner’s extensive findings on and discussion of  the mitigating evidence.”

Before the Board can suspend a cosmetologist’s license, it must give the person notice of the charges and the opportunity for a hearing. See Section 13(a) of the Beauty Culture Law, 63 P.S. §519(a). 4 The purpose of the hearing is to allow licensees an opportunity to “defend against the allegations in the Order to Show Cause or to present evidence in mitigation of any penalty which may be imposed upon [them] or any of [their] licenses, certifications, registrations, permits or other authorizations to practice [cosmetology].” Order to Show Cause, 2/29/2016, at 5-6; R.R. 6a-7a (emphasis added). Where a licensee presents mitigating evidence, the Board must consider that evidence. See Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100, 109 (Pa. Cmwlth. 2012) (when imposing discipline, Board must compare mitigating evidence of record to seriousness of misconduct). The procedures in the Beauty Culture Law apply even though the substantive basis for the Bureau’s enforcement action was CHRIA. The Board suspended Bentley’s license under Section 9124(c)(1) of Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §9121 et seq. , which is a general statute that applies to every Pennsylvania licensing agency.

By contrast, the statute by which the employee holds a license is the Beauty Culture Law, and it authorizes a license suspension only for misconduct related to the practice of cosmetology.  63 P.S. §519(a) (emphasis added). This has been construed to mean that a cosmetologist’s “license can be revoked ‘for gross incompetency or dishonest or unethical practices’ but, like the [Barber License] Law, does not include any reference to revocation for criminal convictions.” Kirkpatrick v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 117 A.3d 1286, 1293 (Pa. Cmwlth. 2015) (internal quotation omitted).   

CHRIA is a general law that authorizes, but does not require, an agency to suspend a license upon the licensee’s felony conviction. CHRIA does not provide standards for the exercise of the agency’s discretion under Section 9124(c)(1). By contrast, the specific, and more relevant statute, is the Beauty Culture Law, and it does not authorize any discipline for criminal convictions unrelated to the practice of the profession. This makes a licensee’s evidence of mitigating circumstances critical where presented.

Here, the Board did not take any steps to sanction the employee immediately upon her conviction. Instead, it waited for over a year after her release from prison to take any action, from which it had the discretion to forbear. The Board’s capricious disregard of the mitigation evidence constitutes a violation of its responsibility to review, with care, such evidence.   Accordingly, the court vacated the Board’s adjudication and remanded the case tothe Board to consider the evidence of mitigation.

consumer - UTPCPL - non-resident plaintiff

Danganan, et al. v. Guardian Protection Services – Pa. S.Ct. – February 21, 2018

http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Questions%20Answered%20%2010343689633251610.pdf?cb=1

Non-resident plaintiff permitted to sue business headquartered in Pennsylvania, despite lack of nexus between this state and the transaction/injury in question. 

Plaintiff’s claims were brought exclusively under the Pa. consumer protection law, 73 P.S. 201-1, et seq., under which there is “no textual basis” for imposing any nexus requirement.  There are no residency or geographic restrictions in the statutory definitions of “person” or “trade and commerce.” 

In this case, a homeowner in Washinton, D.C., entered into a three-year contract with a Pennsylvania company for home security services.  Before the end of the contractual term, the homeowner moved to California and notified the company of his intent to cancel the contract.   When the company refused to honor the cancellation and continued to bill the homeowner, the latter sued in CCP Philadelphia.  The company moved to dismiss the case, claiming that non-Pennsylvania residents could only sue under UTPCPL if there was a sufficient nexus between the transaction/injury and the forum state (Pennsylvania), such that the improper conduct primarily and substantially occurred in Pennsylvania.  The Court rejected this position, as set out above.

contracts - statute of limitations - contract under seal

Driscoll v. Arena – Pa. Super.  – February 12, 2018  (2-1)

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010342570932914664.pdf?cb=1

Held:  A contract which does not have “seal” or “L.S.” or other language to indicate that it was signed under seal is subject to the regular contract statute of limitation of four (4) years,  42 Pa. C.S. 55245(a)(8) and not the extended 20-years SOL for contracts under seal, 42 Pa. C.S. 55245(b)(1).

That result is not changed by the inclusion of a paragraph entitled “waiver” which includes the following language: ““Borrower intends this to be a sealed instrument and to be legally bound thereby.”

The court recognized that contracts under seal are a “vestige of the past.” 

Ed. note:  What the court did not say is that the seal practice is a trap for all but the very most sophisticated parties, and that virtually no one has the slightest idea of what “seal” means or does.   This seems like something that could be challenged in an appropriate case.  See, e.g., Investors Loan Corp.v. Perez, 74 D & C 2d149 (C.P.Adams 1975).

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

debt collection - FDCPA - tine-barred debts - settlement offer "could" violated FDCPA

Tatis v. Allied Interstate, LLC – 3d Cir. – February 12, 2018

http://www2.ca3.uscourts.gov/opinarch/164022p.pdf

A collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt may violate the FDCPA general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

The collection letter stated as follows: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”

Huertas v. Galaxy Asset Management, 641 F.3d 28, 32–33 (3d Cir. 2011) (per curian) stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so long as they do not threaten or take legal action. But the FDCPA sweeps far more broadly than the specific provision found in § 1692e(2)(A). It prohibits “any false, deceptive, or misleading representation” associated with debt-collection practices. 15 U.S.C. § 1692e (emphasis added). Accordingly, this appeal requires us to decide whether collection letters may run afoul of the FDCPA by misleading or deceiving debtors into believing they have a legal obligation to repay time-barred debts even when the letters do not threaten legal action.

Since Huertas, three other United States Courts of Appeals have addressed the question presented in this appeal. All three have determined that, even absent threats of litigation, it is plausible that offers to “settle” time-barred debts could mislead the least-sophisticated debtor.  McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014);  Buchanan v. Northland Group, Inc. held that a settlement offer could “plausibly mislead an unsophisticated consumer into thinking her lender could enforce the debt in court.” 776 F.3d 393, 395 10 (6th Cir. 2015);  Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 513 (5th Cir. 2016).  The court was persuaded that these decisions offer the best interpretation of the FDCPA.

The court reiterated what it said in Huertas and elsewhere: standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts do not necessarily constitute deceptive or misleading practices. See Huertas, 641 F.3d at 32–33; see also Campuzano-Burgos, 550 F.3d at 299 (noting that “[t]here is nothing improper about making a settlement offer”).   Nor did the court impose any specific mandates on the language debt collectors must use, such as requiring them to explicitly disclose that the statute of limitations has run. 

  The court did not, therefore, hold that the use of the word “settlement” is “misleading as a matter of federal law.” Buchanan, 776 F.3d at 400 (Kethledge, J., dissenting). Rather, in keeping with the text and purpose of the FDCPA, “we merely reiterate that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.”  See, e.g., Caprio, 709 F.3d at 149 (noting that “even the ‘least sophisticated debtor’ is expected to read any notice in its entirety”); Huertas, 641 F.3d at 33 (examining the specific language used in the letter from the perspective of the least-sophisticated debtor); Campuzano-Burgos, 550 F.3d at 300 (analyzing letters “as a whole”).

UC - willful misconduct - absences - illness

Klampfer v. UCBR -  Cmwlth. Court – 2-1-18 – unreported memorandum opinion**

http://www.pacourts.us/assets/opinions/Commonwealth/out/540CD17_2-1-18.pdf?cb=1

Claimant was terminated after she called off work four (4) times within two weeks of her return to work after undergoing open heart surgery and being on approved FMLA leave.   Claimant got a doctor’s note, stating that her absences were legitimate, but was unable to provide it until after she was terminated.   The ER policy stated that termination would result with 4 chargeable absences (anything other than a death in the family within a 90-day period.  ER policy did not specify a time limit on providing a doctor’s note, which would have resulted in collapsing the four absences into one.

Willful misconduct

The court held that, under the circumstances, claimant did not commit willful misconduct.

An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 459 (Pa. 1997).

Absence due to illness is not willful misconduct.

“[T]he law is clear that absence due to illness is not willful misconduct.” Green v. Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, there is no willful misconduct based on the policy violation alone. Green.

In this case, as in Green,  there was “ no willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green.   The fact that the manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.

The application of the ER policy is this case was unreasonable. Phila. Parking Auth. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition).   “[A]pply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5.

Good cause

The court went on to hold that, even though claimant’s actions did not constitute willful misconduct, it nevertheless recogniaed that a claimant with a document illness has goode cause  for non-compliance with an employer directive.

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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

admin.law - credibility - review by factfinder who did not hear/see the evidence

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Generally, “[d]eterminations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. DPW, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does not observe the testimony that is the basis of the evidence, a more thorough review of credibility determinations is required. See McElwee v. SEPTA, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting such testimony seems especially pronounced where, as here, the trial court did not observe witness demeanor but, instead, merely reviewed the deposition transcripts and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be arbitrary. Id. 

child abuse - credibility - child's testimony tainted

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Finding of abuse reversed where

            * on remand, ALJ made opposite findings from his initial findinds, based on same record

            * child’s testimony was tainted

Initial decision appealed and remanded, because of change in standard of proof from clear+convincing to preponderance, G.V. v. DPW, 91 A.3d 667 (Pa. 2014, GV II).  On remand, the same ALJ did a complete about face (or volte face, as the Court stated), without  any “articulated, reasoned basis” for doing so.  The intial objections to the child’s testimony (vague, conclusory, lacking in precision, etc.) were not obviated by the application of a different standard of proof.

In addition, the court held that the evidence showed that the child was not competent to testify because her testimony was tainted. 

“Examples of relevant factors showing “some evidence” of taint, are as follows: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child’s primary custodian; (3) the possibility that the child’s primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge, 855 A.2d at 41). The list is not exhaustive; further, the party asserting taint need not satisfy each and every factor.... The uncontroverted and accepted evidence of record establishes that every factor is applicable to this case.

and that “the Child’s testimony was tainted.  A witness whose testimony has been deemed tainted must be dismissed as incompetent.”

employment - govt. employment - free speech - First Amendment

Bradley v. West Chester University – 3d Cir. – January 26, 2018

http://www2.ca3.uscourts.gov/opinarch/171588p.pdf

Speech by government employees is constitutionally protected when the employee is speaking “as a citizen, not as an employee,” and when the speech “involve[s] a matter of public concern.”30 If these two prerequisites are not met, a public employee “has no First Amendment cause of action based on his or her employer’s reaction to the speech.”31

In Garcetti v. Ceballos, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” and that, therefore, “the Constitution does not insulate their communications from employer discipline.”32

On the other hand, in Dougherty v. School District of Philadelphia, we held that a school district employee was not speaking pursuant to his official duties—and was instead speaking as a citizen—when he disclosed alleged misconduct by the school superintendent to a local newspaper.40 And in Flora v. County of Luzerne, we held that a public defender sufficiently alleged that he was speaking as a citizen when he initiated a class action lawsuit on behalf of indigent criminal defendants and reported his county’s noncompliance with a Pennsylvania Supreme Court order to the Special Master whose report had given rise to that order.41

-------------------------------

30 Dougherty, 772 F.3d at 987. Here, the parties do not dispute that Ms. Bradley’s speech involved a matter of public concern.

31 Garcetti, 547 U.S. at 418.

32 Id. at 421; see also id. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

40 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 983, 988 (3d Cir. 2014).

41 Flora v. Cty. of Luzerne, 776 F.3d 169, 173, 179-80 (3d Cir. 2015).

==========================

Query -- What about the state constitution?

UC - self-employment - Uber driver

Lowman v. UCBR – Cmwlth. Court –  en banc – January 24, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/686CD16_1-24-18.pdf?cb=1 (26 pp.)

Donald Lowman petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that affirmed the Referee’s decision that Claimant was ineligible for benefits under Section 402(h) of the Unemployment Compensation Law.  The Board concluded that Claimant’s work as an Uber driver constituted self-employment that rendered, 43 P.S. §802(h).  In relevant part, Section 402(h) provides that “an employe shall be ineligible for compensation for any week in which he is engaged in self-employment….” 43 P.S. §802(h).

Because the Department of Labor and Industry did not demonstrate that Claimant intended to enter into an independent business venture by becoming an Uber driver, we conclude that he remains eligible for benefits as a matter of law.   Accordingly, we reverse the Board’s April 22, 2016, order and remand for further proceedings.

discriminatory lending - Fair Housing Act - City of Phila. v. Wells Fargo

City of Phila. v. Wells Fargo – ED Pa. – Jan. 16, 2018

https://www.paed.uscourts.gov/documents/opinions/18D0032P.pdf

MEMORANDUM

On May 15, 2017, Plaintiff City of Philadelphia filed its 52-page Complaint alleging one claim against Defendants Wells Fargo & Co., Inc. and Wells Fargo Bank, N.A. for violating the Fair Housing Act, 42 U.S.C. §§ 36-1, et seq. The Complaint accuses Wells Fargo of engaging in discriminatory mortgage-lending practices against African-American and Latino residents of Philadelphia. Wells Fargo’s alleged practices constitute “reverse redlining,” which involves targeting minorities and minority communities with exploitive loan products that have higher costs and worse terms than those offered to similarly situated white borrowers.  

Publicly available loan data has been analyzed by the City to indicate the existence of “at least 1,067 discriminatory high-cost or high-risk loans issued to minority borrowers by Wells Fargo in Philadelphia between 2004 and 2014 that resulted in foreclosure.”  These loans are concentrated in areas of the city that have high rates of poverty and significant AfricanAmerican and Latino populations.  According to the City, this practice has “continue[d] through the present and has not terminated.”

The City alleges disparate treatment and disparate impact as theories for its FHA claim, Compl. and based on those theories, the City alleges two types of injuries: non-economic and economic. For its non-economic injuries, the City alleges that Wells Fargo’s conduct negatively impacts the ability of minority residents to own homes in Philadelphia, which injures the City’s “longstanding and active interest in promoting fair housing and securing the benefits of an integrated community.”  The City alleges that it expends resources combating housing discrimination and that Wells Fargo’s actions have interfered with those efforts. For its economic injuries, the City alleges that the discriminatory loans issued by Wells Fargo cause increases in foreclosures that diminish the City’s tax revenues and increase its spending on municipal services.

To remedy its injuries, the City seeks injunctive relief and damages.  On July 21, 2017, Wells Fargo filed a motion to dismiss and a motion to strike.  On November 3, 2017, Wells Fargo filed a motion to stay and/or limit discovery.

I will deny all motions. The motion to dismiss and motion to stay and/or limit discovery are discussed below, and the motion to strike will be addressed in a separate order

False Claims Act - whistleblower protection - but-for causation required

DiFiore v. CSL Behring, LLC – 3d Cir. – Jan. 3, 2018

http://www2.ca3.uscourts.gov/opinarch/164297p.pdf

Marie DiFiore asserted claims against her former employer, CSL Behring, for retaliation in violation of the False Claims Act, and for wrongful discharge under a theory of constructive discharge in violation of Pennsylvania state law.

Held: An employee’s protected activity must be the “but-for” cause of adverse actions to support a claim of retaliation under the FCA.

child abuse - using drugs during pregnancy

In the Interest of L.B. – Pa. Super. – 12-27-17

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20VacatedRemanded%20%2010336976031162337.pdf?cb=1

Held: A pregnant woman may commit child abuse under the Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq., based on use of illegal drugs while pregnant,  if CYS establishes that, by using the illegal drugs, the mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of bodily injury to a child after birth.

tax sale - notice - "reasonable efforts" to find/notify property owner

Klemmer v. Fayette Co. Tax Claim Bureau – Cmwlth. Court – December 14, 2017

http://www.pacourts.us/assets/opinions/Commonwealth/out/260CD17_12-14-17.pdf?cb=1

Upset tax sale set aside because tax claim bureau (TCB) failed to make any effort to locate the property owner, much less “reasonable efforts” required by 72 P.S. 5860.607a(a), where the certified mail notice was returned unsigned to the TCB, because the property owner was incarcerated during all relevant periods.

From the opinion:

Notice, due process

The Tax Sale Law requires a tax claim bureau to give notice to the delinquent taxpayer before his property can be sold in satisfaction of overdue taxes.  . . .The United States Supreme Court has held that due process is implicated when property is taken for the collection of taxes, stating: [p]eople must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property.   But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. . . .To satisfy due process, a tax claim bureau must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” . . . .The notice provisions of the Tax Sale Law “assure that no one is deprived of property without due process of law.” . . . .Accordingly, a tax claim bureau must strictly comply with each and every statutory notice provision, or the tax sale will be set aside.

Focus on the actions of the TCB, not the property owner

In reviewing the validity of a tax sale, the court must focus “not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the [tax claim bureau] comply with the requirements of the [statute].” Consolidated Reports, 132 A.3d at 644 (quoting Smith, 834 A.2d at 1251). It is the conduct of the tax claim bureau that is determinative of compliance with the statutory notice provisions.

Reasonable efforts requirement

Where a notice to the property owner is either returned without the required signed return receipt, or there are other circumstances which raise a “significant doubt” as to actual receipt of the notice, then before a tax sale can take place, the TCB “must exercise reasonable efforts to discover the whereabouts of [the property owner]and notify him.  72 P.S./ 5860.607a(a).      The statutory list of possible “reasonable efforts” details the “mandatory minimum search required,” but what constitutes a reasonable effort is fact-specific.  . . . .It matters not that the reasonable effort may not have borne fruit. An effort must still be undertaken. . . . Futility is not a defense to a tax claim bureau’s failure to exercise reasonable efforts.  Further, the tax claim bureau must do a reasonable search even where the address to which the tax claim bureau sent the notices is correct. . . .. Here, the Tax Claim Bureau did not offer evidence that it undertook any effort to locate Taxpayer.