MDJ courts - execution on $ judgment outside of county of entry - MDJ Rule 402

Rules             http://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%2010407321169206194.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010407321169206208.pdf?cb=1

Final report  http://www.pacourts.us/assets/opinions/Supreme/out/report%20-%2010407321169206198.pdf?cb=1

(2) The magisterial district judge in whose office the judgment was rendered or entered shall accept all timely requests for an order of execution on that judgment, including when the location of the property to be levied upon is located outside the county of the magisterial district where the judgment was rendered or entered. 

UC - willful misconduct - inconsistent enforcement v. disparate treatment

Gordon Terminal Service Co. v. UCBR – Cmwlth. Court – Juine 3, 2019 – reported, precedential

http://www.pacourts.us/assets/opinions/Commonwealth/out/1603CD18_6-3-19.pdf?cb=1

Held:  Where the evidence showed that the employer’s enforcement of a rule against use of cell phone at work was inconsistent, the employer did not establish the existence of a rule that would support a finding of willful misconduct.

Although Employer may have had a written policy prohibiting the use of cell phones without special approval, in reality the Board found that, if Employer had such a policy, Employer engaged in “inconsistent enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence of a rule that could support a finding of willful misconduct.

See Great Valley Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated violations of its policy governing employees’ internet use, employer failed to establish that claimant’s use of internet amounted to willful misconduct); Penn Photomounts, Inc. v. UCBR, 417 A.2d 1311, 1314-15 (Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting absences and employer was aware that its employees followed less formal practice to report absences and tolerated less formal reporting practice, use of less formal practice did not constitute willful misconduct). Thus, Employer failed to meet its burden to prove that Claimant violated Employer’s work rule

Inconsistent enforcement v. disparate treatment

The Board did not determine that Employer engaged in disparate treatment but rather that Employer did not meet its burden to establish willful misconduct due to its inconsistent enforcement of a work rule. The Board, in support of its decision, wrote:  The Board is unable to substantiate any error in the Referee’s willful misconduct analysis. The employer contends that the claimant’s testimony is insufficient to establish disparate treatment regarding cell phone usage in the workplace. Nonetheless, the claimant’s testimony was more than sufficient to establish inconsistent enforcement of an alleged work rule stating that cell phone use is not permissible without special approval. (Id. at 123a.) 

The distinction between the two concepts—i.e., disparate treatment and inconsistent enforcement of an alleged work rule—is nuanced and subtle. Disparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. In situations of inconsistent enforcement, an employer cannot prove the “deliberate violation” required by Grieb necessary for a determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying “deliberate violation of an employer’s rules” as a form of willful misconduct). Here, the Board concluded that Employer failed to establish a violation of Employer’s rules due to Employer’s inconsistent enforcement of its cell phone prohibition and, therefore, failed to prove willful misconduct. As a result, the affirmative defense of “disparate treatment” is inapplicable.

PFA - temporary custody - best interest analysis not required to award temporary custody in PFA case

C.H.L. v. W.D.L. – Superior Court – July 8, 2019 – published, precedential

http://www.pacourts.us/assets/opinions/Superior/out/J-A09012-19o%20-%2010405511568203428.pdf?cb=1

Held:  Lower court’s “meticulous” opinion in PFA case involving award of temporary custody to wife upheld on appeal.  The opinion detailed the “very calculated, complex, web of domestic violence, control and intimidation by Husband against Wife.”  The specific and important language was that: 

Absent guidance from our Legislature or our Supreme Court, we conclude that a PFA court need not conduct a best interests custody analysis to award temporarycustody as form of relief under section 6108 of the Protection From Abuse Act. 

The purpose of the Protection From Abuse Act is to protect victims of domestic violence from the perpetrators of that type of abuse and to prevent domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013)(citation omitted). It is well-settled that trial courts have the authority to enter protection from abuse orders that conflict with custody orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). 

The PFA Act allows the court to award temporary custody or establish temporary visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4). Where the court finds after a hearing that the defendant has inflicted serious abuse, the court may deny the defendant custodial access to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodial rights, the court shall consider, and may impose on a pre-existing custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).  

Custody wise, a PFA order is not designed to impose anything but emergency relief. See Dye for McCoy, supra, 621 A.2d at 145. To understand this, look no further than the PFA Act: “Nothing in this paragraph [relating to temporary custody as a form of relief] shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). 

But while the domestic violence emergency is still pending, a PFA order may alter a pre- existing custody order and remand for clarification to avoid conflict. See Dye for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence.” Id. 

Moreover, the PFA Act does not require a child to be physically struck before a court can award temporary sole custody to a plaintiff. The court may do so even though the defendant has inflicted serious abuse upon the plaintiff alone. See § 6108(a)(4)(iii)(B). 

UC - late appeal - nunc pro tunc allowed - postal authorities

Bankers Like & Casualty v. UCBR – reported, precedential opinion – June 27, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1590CD18_6-27-19.pdf?cb=1

Held:  Employer permitted to appeal nunc pro tunc where there was an administrative breakdown by postal authorities, and:

• Envelope containing employer appeal had illegible postmark
• Appellant’s attorney testified w/o contravention that appeal was timely mailed
• Appeal was returned, mistakenly marked undeliverable and unable to forward
• Attorney then promptly filed another petition for appeal to the Board

The court relied on Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) and Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) in granting a nunc pro tunc appeal, holding that “[w]e must conclude that Attorney Weissman’s uncontroverted testimony, along with the documentation which he produced, while insufficient under the law to prove timely mailing, did establish that an administrative breakdown by the postal service caused the untimely appeal, and satisfies all the necessary elements to permit the filing of the appeal nunc pro tunc.”

admin. law - duty of hearing officer - pro se litigant

Frederick Mutual Insurance Co. v. Insurance Department – precedential, reported – June 21, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1528CD18_6-21-19.pdf?cb=1

Duty to conduct fair and impartial hearing   

The General Rules of Administrative Practice and Procedure (GRAPP). See Section 56.1 of the Pennsylvania Code, 31 Pa. Code § 56.1. Section 35.189 of GRAPP specifies: “It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order.” 1 Pa. Code § 35.189.

Pro se litigants

This Court has declared relative to Department hearings: The Pennsylvania Supreme Court has long held that ‘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.’ Vann v. UCBR . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)).

Referee must be “unusually cautious” with pro se litigant – make sure all issues fully and fairly  examined

More recently, this Court clarified that, ‘referees should reasonably assist pro se This Court has also concluded “that where a person proceeding before an administrative agency is not represented by counsel, the hearing officer must be unusually cautious to insure that all issues are fully examined.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992). To that end, an administrative tribunal[] has the power to ask questions to clarify matters and to elicit relevant information not presented by counsel. Dayoub v. State Dental Council [&] Examining B[d., 453 A.2d 751, 753 (Pa. Cmwlth. 1982)]. [It] will have overstepped its bound only when it heatedly questions and argues with [a party] and [his/her] witnesses ‘in such a manner that [the presiding officer’s] behavior . . . [is] much more in line with that of a prosecuting attorney than of a neutrally detached and impartial decision-maker.’ [Id.]. Shah v. State Bd. of Med., 589 A.2d 783, 797 (Pa. Cmwlth. 1991).  

In the instant matter, the Presiding Officer “reasonably assist[ed] the litigant to elicit facts that [were] probative for [her] case[,]” Hackler, 24 A.3d at 1115, to ensure that both parties had the opportunity to fully present their cases. There is no evidence that the Presiding Officer impermissibly advocated for the litigant, assisted her in a manner that biased the proceedings, or gave the appearance of impropriety. Rather, it is clear from the record that the Presiding Officer was ensuring that all relevant facts were available for the Commissioner’s review. Accordingly, the Presiding Officer did not irreparably bias the proceedings or give the appearance of impropriety.

mailbox rule - presumption of receipt requires adequate proof of mailing - regular place of mailing

Pinnacle Health v. UCBR – Cmwlth. Court – reported opinion – May 31, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1025CD18_5-31-19.pdf?cb=1

Employer held to have “proper cause” for failure to attend UC hearing, due to non-receipt of hearing notice.    No presumption of receipt of notice of hearing, since there was inadequate proof of mailing. 

The “presumption of receipt is ‘inapplicable’ in the absence of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.’” Id. (quoting Leight v. UCBR, 410 A.2d 1307, 1309 (Pa. Cmwlth. 1980) (alteration in original)). Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016).

The fact that there was a rule requiring hearing notice to be mailed does not show that it was mailed.   “[T]he mere existence of a rule requiring an act to be performed by a public official is not sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of the notice.” Blaset v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1993).  Instead, “The presumption only comes into play when there is on record some other indication that the act in question had been performed such as a notation to that effect made by a local bureau official that the letter had been deposited in the mail.” Id.

That said, proof of actual mailing is not required unless there is a rule or regulation that specifies otherwise.  C.E. v. DPW, 97 A.3d 828, 833 (Pa. Cmwlth. 2014).  Rather, “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Department of Transportation v. Brayman Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)). “It is well settled that the presumption in the mailbox rule is not nullified by testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d at 566.

There was no proof of mailing in this case.   Clerk in referee office testified that she prepared the notice and put it in a basket on her desk, after which it was retrieved by a person from the mail room.  But there was no testimony about postage being affixed or how notices are actually mnailed.  The fact that the notice contained a “date of mailing” does not, without more, establish proof of mailing. See Douglas, 151 A.3d at 1193. 

Regular place of mailing –  Reading Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using “regular place of mailing” and “usual place of mail”), and  Douglas, 151 A.3d at 1191 (using “in the mail”) together, the Court here held that “the regular place of mailing is the place where the properly addressed letter, with postage affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or other location where a mail carrier retrieves the mail. Accordingly, in order for the Board to utilize the presumption of regularity in order to invoke the presumption of receipt, it must present evidence regarding how properly addressed items, with proper postage affixed, customarily enter the mail or, alternatively, show “some other indication that the act in question had been performed” such as a notation in the record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at 449.

There was not such evidence in this case.  The referee clerk “could not and did not address how and when the notices she prepares enter the mail or whether the notices receive the proper postage prior to their mailing, as she only places mail in a basket on her desk, which must then be picked up and further processed. Indeed, the clerk acknowledged that the basket on her desk was not the place where the notices customarily entered the U.S. Mail. Accordingly, the court remanded to the Board “for consideration of the evidence Employer submitted regarding the merits of Claimant’s appeal.”

Housing - Sec. 8 - termination - conduct in immediate vicinity

Cox v. Johnstown Housing Authority – Cmwlth. Court – reported decision – June 5, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1329CD18_6-5-19.pdf?cb=1

Held:  Public drunkenness conviction based on conduct that took place 1.9 miles from sec. 8 residence could not support termination of sec. 8 assistance, where the HA “failed to present one scintilla of evidence” that the resident’s conduct “made other residences of the premises” where he lived, “or persons in the immediate vicinity of those premises, feel insecure or anxious for tehir health, safetly or peaceful enjoyment.”  Thus, there was “no statutory or regulatory basis on which to terminate” the resident’s sec. 8 benefits.  A decision to terminated “may not be based on mere speculation that the residents or persons in the immediate vicinity. . .could or may be threatened at sime point in the future.”

From the opinion –

This Court has recognized:   The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority’s decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority’s discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth. 2013)]. Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc)

           

Congress did not state in Section 8 of the Housing Act that any and all criminal activity, wherever it occurs, is grounds to terminate Section 8 Program benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that Cox signed place him on notice that any and all criminal activity and/or alcohol abuse no matter where it takes place constitute grounds upon which the Authority could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act and applicable HUD Regulations, the Authority must prove, and the court must find that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such activity threatens the health, safety, or right to peaceful enjoyment of residents and/or persons in the immediate vicinity thereof. The second element demands proof of a threat to the health, safety or right to peaceful enjoyment of residents and/or persons  in the immediate vicinity on or near the Section 8 Program leased premises. 14 Thus, it is not the occurrence of the criminal and/or alcohol-related act that is needed to jeopardize Cox’s assistance or the possibility that it could occur, but there must also be proof that the health, safety or peaceful enjoyment rights of those who reside in the “immediate vicinity” of Cox’s premises was “threatened” by that act. 24 C.F.R. § 982.551 [emphais deleted).

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

UC - off-duty misconduct not willful misconduct unless it affects ability to perform job

County of Allegheny v.  UCBR – Cmwlth. Court – May31, 2019

Claimant convicted of off-duty DUI was not disqualified under sec.  3 (off-duty misconduct)  or sec.  402(e)(job-related willful misconduct), even where Employer code of conduct authorized termination of employment for criminal conviction, even when off-duty or unrelated to employment.

From the opinion –

Willful misconduct -402(e) -  Employer argued that Claimant’s off-duty DUI was willful misconduct under sec.402(e), because it violated the employer code of conduct. The court rejected this argument,  noting that a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with this work.[”]  Palladino v. UCBR, 81 A.3d at 1103.   The fact that Claimant could be discharged for unlawful conduct does not make the misconduct work-connected for purposes of Section  402(e). See Palladino, 81 A.3d at 1103 (citing Robinson, 546 A.2d at 753).  “Off-duty misconduct will not support a finding of willful misconduct under Section 402(e) unless it extends to performance on the job[.]” Palladino, 81 A.3d at 1101 (quoting Burger, 801 A.2d at 491) (brackets omitted); see also Webb v. Unemployment Comp. Bd. of Review, 670 A.2d 1212, 1216 (Pa. Cmwlth. 1996)  There is a critical distinction between the employer’s right to terminate employment and the state’s right to deny unemployment benefits.’ ” Id. (quoting Blake v. Unemployment Comp. Bd. of Review, ... 425 A.2d 43, 45 ( [Pa. Cmwlth.] 1981).

Sec.3 –off-duty misconduct –  The Court affirmed the Board holding that Claimant was not ineligible under sec. 3.   Under Section 3 of the Law, the employer bears the burden to prove “(1) that the claimant’s conduct was contrary to acceptable standards of behavior and (2) that the claimant’s unacceptable conduct directly affects or reflects upon the claimant’s ability to perform his assigned duties.” Palladino, 81 A.3d at 1101 (quoting Frazier, 833 A.2d at 1184–85). Both prongs of the test must be satisfied. Gillins, 633 A.2d at 1154. Notably, Employer does not claim that the unacceptable conduct, i.e., the criminal DUI conviction, affected Claimant’s ability to perform his job duties as a project coordinator⁷ and does not challenge the Board’s determination that the conviction did not affect Claimant’s ability to perform his job. As such, because Employer did not establish one of the two necessary prongs, ineligibility for benefits under Section 3 cannot be established.

UC - sec. 402.6 - incarcerated person - weekends only - held eligible

Harmon v. UCBR – Pa. Supreme Court – April 26, 2019

majority – http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656612847.pdf?cb=1

We granted discretionary review to determine whether the Commonwealth Court erred in holding appellant Daniel Harmon was disqualified from receiving unemployment compensation benefits pursuant to Section 402.6 of the Unemployment Compensation Law (the Law), 43 P.S. §802.6(a) (“[a]n employe shall not be eligible for payment of unemployment compensation benefits for any weeks of unemployment during which the employe is incarcerated after a conviction”). We hold appellant, who was serving a sentence of incarceration on weekends only, was not disqualified from receiving unemployment compensation benefits, and we therefore reverse the order of the Commonwealth Court.  (24 pps)

Saylor – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656613908.pdf?cb=1

Donohue – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656614403.pdf?cb=1

Wecht – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656615044.pdf?cb=1

Mundy – dissenting

http://www.pacourts.us/assets/opinions/Supreme/out/Dissenting%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656615182.pdf?cb=1

nurses - licensing - suspension - misdemeanor disorderly conduct not a crime of moral turpitude

Dunagan v. Bureau of Prof. & Occup. Affairs – Cmwlth. Court – unreported* memorandum opinion – April 10, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/546CD18_4-10-19.pdf?cb=1

One who commits disorderly conduct by, for example, persisting in making “an unreasonable noise,” 18 Pa.C.S. §5503(a)(2), or using “obscene language,” id. §5503(a)(3), has not committed a crime of moral turpitude with the requisite reprehensible state of mind under 63 P.S. §666(a)(5).  Moreover, disorderly conduct, even graded as a third degree misdemeanor, is wholly unlike the crimes which this Court has previously deemed crimes of moral turpitude, such as mail fraud, theft by deception, conspiracy to possess and distribute controlled substances, etc. See Krystal Jeep; Foose; Startzel; Yurick. Thus, because there are numerous iterations of disorderly conduct wherein the actor cannot be said to have committed a crime of moral turpitude, the Board erred in suspending Petitioner’s practical nursing license for six months based upon her nolo contendere plea to disorderly conduct. Accordingly, the order of the Board is reversed

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

*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 - capricious disregard - conflicting evidence - lack of findings, etc. - **important decision**

Bertram v. UCBR – Cmwlth. Court – March 22, 2019 – reported decision (2-1)

majority and dissenting opinions - http://www.pacourts.us/assets/opinions/Commonwealth/out/12CD18_3-22-19.pdf?cb=1

Held:  Case remanded.  UCBR adopted Referee decision, without discussion, where it had not resolved a conflict in the evidence or made an essential crediblity determinatio.

From the opinion—

What is “capricious disregard” of the evidence?

“We have explained that it “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.” Wise v. UCBR, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of evidence occurs “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.” Id. at 1263. It is the responsibility of the factfinder to resolve the conflicts in the testimony and explain why it has accepted, or rejected, each piece of relevant evidence. Id. 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 brought before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002).”

The Board erred in adopting the Referee decision, in toto, without discussion or necessary findings

The Referee’s factual findings are based upon the testimony of an ER witness, but this testimony was contradicted by other testimony and by documentary evidence.   In addition, the ER witness testimony contained inconsistencies on the critical question on when the witness decided to fire Claimant.   By contrast, the completing testimony of a witness for Claimant was “clear” and “highly relevant.”  The Referee made no comment this testimony, and the Board “affirmed without explanation.”

The Referee and Board did not make an adequate determination of credibility –  silence is not an implicit finding

The decisions of both the Referee and Board were silent on the testimony of CL’s witness.   The Court soundly rejected the Board’s argument that the “Court must infer from silence that the Referee ‘implicitly” rejected” this testimony and “implicitly accepted” the testimony of the ER witness, in reliance on the following language from the Referee decision:

Both the claimant and the employer appeared at the unemployment compensation hearing to present testimony and evidence on the issues under appeal. The above findings represent the competent evidence and credibility determinations made by the Referee in rendering the following decision.

The Court’s response: “We reject the Board’s argument.”  It said that

            * First, the “boilerplate paragraph in the Referee’s determination is not dispositive of whether the Referee capriciously disregarded record evidence. This paragraph is generic, not specific to any of the evidence in this record. Simply, it is not a substitute for express credibility determinations, and it does not discharge the Board’s responsibility to consider and weigh the relevant evidence in a case.

            * “Second, it is not the responsibility of the reviewing court to divine the reason for the factfinder’s silence. Here, the highly relevant testimony of a disinterested third party did not elicit a single comment from the factfinder. As we have held, capricious disregard of evidence occurs where the factfinder “has completely ignored overwhelming evidence without comment.” Wise, 111 A.3d at 1263.

            * “Third, implicit credibility determinations do not resolve the conflicts between the testimonial and documentary evidence.“

For all of those reasons, the Court “conclude[d] that the Board has capriciously disregarded relevant evidence.”

The Referee hearing was the equivalent of no hearing at all.

Given the errors listed above, “[i]t is as if Claimant did not have a de novo hearing.   The Referee simply repeated, with virtually no discussion, the findings of the UC Service Center.”  The Referee did not address Claimant’s contentions on several dispositive issues and did not resolve conflicts between the testimony of key witness “with express credibility determinations.”   The Referee ignored, without comment, the testimony of the CL witness, as well as some uncontradicted testimony.  “Where ‘there is strong critical evidence that contradicts contrary evidence, the adjudicator must provide an explanation as to how it made its determination.” Bentley v. Bureau of Professional and Occupational Affairs, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).   The Referee disregarded “relevant and critical evidence. . . . The Board must resolve the conflicts in the record evidence in order for meaningful appellate review to take place. For these reasons, the Board’s adjudication is vacated, and this matter is remanded to the Board to issue a new adjudication in accordance with our instructions herein. “

Dissenting opinion of Judge Wojcik

The dissent held that the UCBR decision was acceptable, because there is “[n]othing in the unemployment [statute or] regulations [that] requires a referee or the Board to render a ‘reasoned’ decision that explicitly resolves all conflicting evidence. . . . While I agree that, generally, more detailed findings and discussion by the referee or the Board would be helpful, the findings made below are adequate to conduct meaningful appellate review, and there is nothing of record that would justify reversal. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.”

“We have repeatedly stated that it is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Sipps v. UCBR, 181 A.2d 479, 484 (Pa. Cmwlth. 2018); Kelly v. UCBR, 172 A.2d 718, 725 (Pa. Cmwlth. 2017); Ductmate Industries, Inc. v. UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Further, we have consistently observed that, while the Board must make crucial findings on the essential issues, “[the Board] is not required to address specifically each bit of evidence offered.” Panella v. UCBR (Pa. Cmwlth., No. 351 C.D. 2013, filed August 29, 2013), slip op. at 4 (citation and quotation omitted).4 See also Kunselman v. UCBR (Pa. Cmwlth., No. 444 C.D. 2012, filed February 7, 2013), slip op. at 3 n.2 (same); and Kozlina-Peretic v. UCBR (Pa. Cmwlth., No. 1088 C.D. 2008, filed December 23, 2008), slip op. at 3 (same).”

appellate rules - citation of non-precedential authorities/decision not readily available - PRAP 126

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010390159553019079.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20%2010390159553023916.pdf?cb=1

PFA - amendments to forms - Pa RCP 1905

Amendment to PFA forms, Pa. RCP 1905

Forms             http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010390298753094842.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010390298753094919.pdf?cb=1 – effective 4-10-19

                        

debt collection - "debt collector" includes entity that hires another to do the collecting

Barbato v. Greystone Alliance LLC – 3d Cir. – February 22, 2019

https://www2.ca3.uscourts.gov/opinarch/181042p.pdf

The Fair Debt Collection Practices Act protects consumers from abusive, deceptive, or otherwise unfair debt collection practices. 15 U.S.C. § 1692(a).   It applies to “debt collectors,” defined alternatively as those engaged “in any business the principal purpose of which is the collection of any debts” and those “who regularly collect[]” debts “owed or due another.” Id. § 1692a(6).   

Held:  The term “debt collector” includes an entity that acquires a debt for the “purpose of . . . collection” but outsources the actual collection activity qualifies as a “debt collector.”   An entity that otherwise meets the “principal purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting.

UC - late appeal - admission to medical facility

Jenkins v. UCBR – Cmwlth. Court – October 30, 2018 – ordered to be reported 2-15-19

http://www.pacourts.us/assets/opinions/Commonwealth/out/1352CD17_2-15-19.pdf?cb=2

Held:  Claimant’s absence from his mailing address during the appeal period was attributable to non-negligent conduct, i.e. his admission to an inpatient drug treatment facility for a one-month period.   His late appeal was allowed and the case remanded for a hearing on the merits, i.e., whether his suspension for willful misconduct (excessive absenteeism and tardiness) was willful misconduct.  The claimant, who was not computer literate, tried to contact the UCSC by phone while he was in treatment, but got a busy signal every time.  The referee and Board credited the claimant’s testimony in that regard.

Nunc pro tunc appeals

An appeal nunc pro tunc is permitted when the appeal delay results from extraordinary circumstances involving fraud or some breakdown in the administrative process. McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006). In Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), this standard was relaxed somewhat. In that case, the appellant’s attorney had his secretary prepare appeal papers for the appellant six days prior to the appeal deadline. The secretary was responsible for filing the appeal and ensuring that all secretarial work for the office was performed. The secretary fell ill and was out of the office for a week, during which time the appeal deadline passed. She filed the appeal within three days of her return to work. Our Supreme Court allowed the appeal to proceed nunc pro tunc because the delay was caused by the non-negligent act of a third party and was promptly corrected.

Non-negligent conduct of claimant or counsel

More recently, in Cook v. UCBR, 671 A.2d 1130 (Pa. 1996), our Supreme Court extended the Bass principles to allow a nunc pro tunc appeal where the non-negligent conduct was that of the appellant himself. . . . [In Cook, our Supreme Court] refined the Bass standard as follows: We believe a better statement of the rule in Bass is that where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Id. at 1131.

This case did not involve voluntary travel or voluntary absence from the home

The Court rejected the Board’s attempt to analogize cases where the claimant had been absent from his mailing address for voluntary travel, e.g., See, e.g., Karmiev v. UCBR (Pa. Cmwlth., No. 1060 C.D. 2016, filed March 24, 2017); Plut v. UCBR (Pa. Cmwlth., No. 2283 C.D. 2007, filed October 14, 2008); Hanin v. UCBR, 377 A.2d 1062 (Pa. Cmwlth. 1977).  The Court agreed with Claimant that his case is in line with the paradigm established in Cook, 671 A.2d 1130, where a nunc pro tunc appeal was allowed because of the appellant’s hospitalization for a serious medical condition. See also B.B. v. Department of Public Welfare, 118 A.3d 482 (Pa. Cmwlth. 2015). The Referee credited Claimant’s testimony in its entirety, including that he was admitted to the Livengrin Inpatient Residential Program during the appeal period and believed, based on prior experience, that there would be no problem with his unemployment application.

No duty to have mail forwarded in every case

The Board asserts that every claimant has a duty to have his mail forwarded when he is absent for any reason and for any duration from the mailing address given to the Department. We reject the Board’s assertion. Forwarding mail is a step undertaken when one leaves home for an extended period of time, not for a vacation or hospitalization.

Breakdown in administrative process – inability to contact UCSC by phone

Claimant’s case is distinguishable from the cases cited by the Board for an additional reason. Claimant testified credibly that he attempted to contact the UC Service Center by phone but always got a busy signal.8 Claimant points out that his appeal period coincided with the height of a funding crisis at the Department of Labor and Industry that resulted in substantial staff reductions beginning in December 2016. Claimant’s credited testimony that he tried unsuccessfully to contact the UC Service Center by phone weighs in favor of granting nunc pro tunc relief since it is evidence that Claimant acted reasonably to learn the status of his application but was unsuccessful due to no fault of his own

UC - late appeal - misleading admin. actions

Begovic v. UCBR – Cmwlth. Court – February 19, 2019 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/638CD18_2-19-19.pdf?cb=1

Contact by UC authorities subsequent to initial adverse determination were sufficiently misleading as to constitute an administrative breakdown and, thus, allow a late appeal, nunc pro tunc. 

From the opinion –

If an appeal is not filed within 15 days of mailing, the referee and the Board lack jurisdiction to consider the matter, and the initial eligibility determination becomes final. Roman-Hutchinson v. UCBR, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009); United States Postal Service v. UCBR, 620 A.2d 572, 573 (Pa. Cmwlth. 1993). An appeal filed even 1 day after the 15-day appeal period is untimely and must be dismissed. Hessou v. UCBR, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008).

There is an exception, though, and an appeal nunc pro tunc may be allowed “where a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to an appellant or [her] counsel or a third party.” Russo v. UCBR, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). In cases where a claimant is “unintentionally misled by an official who is authorized to act in the premises, the time [for appeal] may also be extended when it is possible to relieve an innocent party of injury consequent on such misleading act.” Flynn v. UCBR, 159 A.2d 579 (Pa. Super. 1960). See also Stana v. UCBR, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). Further, “[W]here an administrative body acts negligently, improperly or in a misleading way, an appeal nunc pro tunc may be warranted.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000).

In line with Martyna v. UCBR, 692 A.2d 594 (Pa. Cmwlth. 1997), and Waters-Bey v. UCBR,  (Pa. Cmwlth., No. 777 C.D. 2016, filed June 12, 2017) [citing the  court’s Internal Operating Procedures, allowing citation un an unreported opinion for its persuasive value. 210 Pa. Code §69.414(a).], the Court held that the Department’s letter, which erroneously indicated that another letter was forthcoming, coupled with the phone call from the Department representative, which occurred during Claimant’s appeal period and in the course of the wage investigation she sought, but after the Department sent her the Revised Financial Determination, were sufficiently misleading so as to constitute a breakdown in the administrative process. The Department was apparently confused about its own procedures as reflected by 15 the timing and the indication that it would issue a new revised financial determination was false.  

As we said in Martyna, “If [the Department] was mistaken, [Claimant] should not bear the consequences of that administrative confusion.” Martyna, 692 A.2d at 598 [emphasis added]. Thus, we remand for a decision on the merits of Claimant’s appeal from the Revised Financial Determination regarding her wages earned from OPI. Accordingly, we reverse the Board’s April 9, 2018 order and remand for a decision on the merits of the issues Claimant raised on appeal.

**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

parties - unknown/John Doe defendants - rules of civil procedure

Pa. R.C.P. 1007, 1018, 1033, 2005 -    http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010385516448046778.pdf?cb=1

Effective date – April 1, 2019 - http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010385516448046630.pdf?cb=1

Explanatory comment – http://www.pacourts.us/assets/opinions/Supreme/out/Report%20%2010385516448046733.pdf?cb=1

The Supreme Court of Pennsylvania has adopted new Rule 2005 governing the naming of unknown, or John/Jane Doe, defendants in a complaint. Currently, the Rules of Civil Procedure are silent as to the use of Doe defendants in litigation; however, case law shows that the naming of Doe defendants has occurred. Rule 2005 is intended to fill this gap by standardizing the procedure in which to assert a cause of action against a Doe defendant.

UC - appeal - capricious disregard of competent, relevant evidence

Jamie One, LLC v. UCBR – Cmwlth. Court – January 4, 2019 – unreported** memorandum opinion

The court rejected the employer’s appeal and upheld the grant of benefits.  In the course of its opinion, not otherwise of special value, the court discussed the argument that the Board capriciously disregarded competent, relevant evidence in reaching its decision.  The court discussed this as follows:

Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the fact finder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored evidence without comment. Wise v. UCBR, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Id

Here is the relevant discussion from Wise v.  UCBR – 111 A. 3d 1256, 1262-3 (Pa. Cmwlth. 2015)

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), 571 Pa. 189, 812 A.2d 478, 487 (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 1263*1263 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, 138 Pa. Cmwlth. 547, 588 A.2d 1007, 1010 (1991).

Disturbing an agency's adjudication for a capricious disregard of evidence is appropriate only where the fact-finder 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).

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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