language access - LEP - criminal defendant - right to counsel

Cmnwlth. v. Diaz – Pa. Supreme Court – March 26, 2020 (5-2) 

http://www.pacourts.us/assets/opinions/Supreme/out/J-57-2019mo%20-%2010438223398893021.pdf?cb=1 - majority

In this discretionary appeal, the Commonwealth challenges the Superior Court’s application of United States v. Cronic, 466 U.S. 648 (1984), to find that trial counsel’s failure to secure a Spanish language interpreter for Miguel Diaz (“Diaz”) on the first day of his criminal trial constituted per se prejudice as Diaz was not a native English speaker and could not fully understand the proceedings. 

We conclude that where the absence of a needed interpreter at a critical stage of trial obstructs his ability to communicate with counsel, Cronic applies such that the defendant need not prove that he or she was prejudiced by a Sixth Amendment violation. Based on the record and the standard by which we review this case, we find that the Superior Court correctly concluded that Cronic was applicable and that no specific showing of prejudice was required because of the absence of an interpreter on the first day of trial during critical stages of the proceeding. 

Dissent – Dougherty - http://www.pacourts.us/assets/opinions/Supreme/out/J-57-2019do%20-%2010438223398874590.pdf?cb=1

Dissent- Mundy - http://www.pacourts.us/assets/opinions/Supreme/out/J-57-2019do1%20-%2010438223398874557.pdf?cb=1

UC - Board erred in raising an issue not raised by claimant, employer, or Department

Quigley v. UCBR – Commonwealth Court – en banc – reported decision – January 28, 2020

Majority (5) & dissent (2) http://www.pacourts.us/assets/opinions/Commonwealth/out/1449CD17_1-28-20.pdf?cb=1

N.B. This case was litigated by Julia Simon-Mishel of PLA.

In a 5-2 en banc decision, the Court held that the UCBR erred when it addressed an issue (claimant’s alleged self-employment v. sideline activity) when neither the separating employer nor the Department had raised the issue.  

The case came before the UCBR when claimant appealed from UCSC and referee decisions finding her eligible for benefits but deducting what claimant believed to be an incorrect amount, based on her sideline earnings.  Also of note: claimant’s request for continuance of the referee hearing was denied, and she did not attend the hearing. 

On appeal to the Board, the UCBR reversed the referee, holding that claimant was not eligible for benefits in any amount, because she had not presented any evidence that she qualified for the sideline activity exception under sec. 402(h) of the UC Law, 43 P.S. sec. 802(h), which says that a person is not eligible to get UC when “engaged in self-employment” provided however, the such work is a sideline activity, that is – it is not the claimant’s “primary source of livelihood.”

Majority opinion

Specifically noting the remedial nature of the UC Law under sec. 3, 43 P.S. sec. 752, the court held that the Board exceeded its admittedly broad right of review of a referee decision, because “Claimant’s eligibility was never in dispute. Both the UC Service Center and the Referee held that she was eligible for unemployment benefits because her self-employment was limited to a sideline activity. Employer did not contest her eligibility, and neither did the Department. Rather than decide the controversy presented, which pertained to benefit calculation, the Board transformed the nature of the controversy to one of benefit eligibility. This was problematic because there was in fact no controversy over Claimant’s eligibility. Consequently, Claimant had no notice that the Board would review her eligibility, because it had not been contested by Employer or by the Department.”

due process – notice – opportunity to be heard -- The court decided that under the circumstances, claimant had been denied due process. “Although the regulation at 34 Pa. Code §101.87 authorizes a tribunal to consider all “issues expressly ruled upon” below, the appeal process must still comport with due process. Thus, there must be a controversy between at least two of the parties at every stage of the appeal. . . .” – not the case here, absent an appeal by either the employer or Department.

After denying the claimant’s request for continuance and in her absence, the UCBR “decided her appeal on the basis of the Department’s records. The Board reversed because Claimant did not appear at the Referee hearing to prove her eligibility, and then the Board refused to give Claimant an opportunity to explain her nonappearance. Fundamental due process requires notice and an opportunity to be heard, and this constitutional principle must inform the Department’s procedural rules for unemployment compensation appeals.”

The court was careful to note the precise circumstances of the case: “Our holding limited to the circumstances presented in the case sub judice, i.e., where the claimant, through no fault of her own, becomes unemployed; where the claimant is found to be eligible for unemployment benefits and no party challenges her eligibility; and where, on review of the claimant’s appeal of the computation of her unemployment benefit amount, the Board sua sponte raises the issue of her eligibility for benefits.”

Due process - commingling of functions – The court agreed with the claimant “the Board applied the Department regulations in a way that improperly commingled the Department’s prosecutorial and adjudicatory functions. This violates due process as our Supreme Court established in Lyness v. State Board of Medicine, 605 A.2d 1204, 1209-10 (Pa. 1992).”

The “UC Service Center determined that Claimant was entitled to benefits under Section 402(h) of the Law, subject to a weekly deduction for her sideline business income. Claimant appealed, challenging only the monetary amount of the deduction. Indeed, Claimant could not have appealed the issue of her eligibility for benefits under the sideline business provision of Section 402(h) of the Law because she was not aggrieved by that determination. The only portion of the UC Service Center determination, and later Referee decision, that Claimant could have appealed was the amount of prorated earnings that determined her weekly deduction. 

The Referee held a de novo hearing, in which the Department could have participated. It did not. Similarly, if the Department had an issue with the Referee’s decision to affirm the UC Service Center’s eligibility determination, it could have appealed to the Board. It did not. The Board reversed Claimant’s eligibility even though that issue could not have been raised by Claimant, but only by the Department or Employer. By doing so, the Board put itself in the role of the adversary, and in the case of self-employment, within the prosecutorial role of the Department. Such commingling of prosecutorial and adjudicatory functions is improper.”

The court held that the “ ‘prosecutorial’ actor in all unemployment compensation matters is the Department, and it may challenge any determination on eligibility for benefits. Although it is the employer that typically opposes a claimant’s eligibility, we cannot just ignore the Department’s statutory prosecutorial role, as do the dissenting judges. The Board’s function is solely adjudicatory. It must not take on the Department’s prosecutorial function by revisiting the referee’s holding on benefit eligibility unless the Department raises that challenge.” In UC cases, the “Board’s function is solely adjudicatory.”

The majority thus concluded that

Claimant, through no fault of her own, became unemployed; was ruled eligible for unemployment benefits; and no party challenged her eligibility. On review, the Board sua sponte raised the eligibility issue and prevented Claimant from presenting evidence. Simply, the Board denied Claimant a fair hearing. Further, the Board erred by assuming the prosecutorial role of the Department when it raised the issue of Claimant’s eligibility for benefits and held that she was ineligible. In commingling the prosecutorial and adjudicatory functions, the Board created an appearance of impropriety and bias. The Board’s actions have contravened the remedial purpose of the Law, due process and fundamental fairness. 

For these reasons, we vacate the Board’s order and remand the matter to the Board to remand to a referee to conduct a hearing to determine whether the deduction from Claimant’s weekly benefit amount for her sideline business income was properly calculated. 

Dissent of Judge Cohn Jubilerer

The judge felt that the majority “examined this matter sympathetically rather than legally, as reflected in its deviation from the Law, the regulations, and longstanding precedent. . . .”

Section 3 “remedial purpose” language “may not, in ‘the pretext of pursuing its spirit,’ disregard the Law’s clear and unambiguous language. Thus, in addition to excluding those who are unemployed due to their own fault, whether by voluntarily quitting without cause of a necessitous, compelling nature or engaging in willful misconduct connected with their work, the General Assembly excluded those who are engaged in self-employment.. . . . It has long been held that the Law is not intended to protect those who are engaged in business for themselves or who are failed entrepreneurs. . . . Although there is an exception to this exclusion, the sideline business exception, which is at issue here, that exception requires the claimant to establish that the sideline business was not the claimant’s primary livelihood. [editor’s note – there should have been some specific discussion about burden of proof].

The Board has a duty to consider all issues in the case.  There is “nothing in the regulations indicate that the Board’s obligation to review those issues expressly ruled upon is subject to the approval of the parties. 43 P.S. § 824; 34 Pa. Code §§ 101.87, 101.107(b). The Court should also be guided by the long established principle that, in addition to the Board’s fact finding role set forth in Section 504 and the regulations, the Board “has a duty to protect the [UC] fund from ineligible claimants and to investigate all the facts in a given case.” 

A “determination regarding the rate of compensation in self- employment cases by its very nature encompasses the question of eligibility for those benefits under Section 402(h) of the Law. Section 402(h) provides that an employee is ineligible for benefits if the employee engages in self-employment. 43 P.S. § 802(h). The exception to this ineligibility, also found in Section 402(h), is the sideline business exception – which is the exception Claimant relies upon to claim she is not ineligible for UC benefits. 

To qualify for this exception, Claimant had to establish that: (1) the self-employment began prior to the termination of the full- time employment; (2) the self-employment continued without substantial change after the employee’s termination; (3) the employee remained available for full-time employment; and “(4) the self-employment was not the primary source of [her] livelihood.”. . . .Under this standard, the Section 402(h) inquiry considers a claimant’s self-employment income for purposes of both eligibility (that it was not the primary source of the claimant’s livelihood) and the weekly rate of compensation (by how much the claimant’s UC benefits should be reduced) should the exception be established. Therefore, an appeal as to the rate of compensation, which requires a review of the claimant’s self-employment income, necessarily implicates questions of eligibility and vice versa. An appeal as to one is an appeal to both. 

Second, and more importantly, the Board was required to review the question of Claimant’s eligibility under the Law, the regulations, and longstanding precedent because that issue had been ruled upon by both the local service center and the Referee. The Referee specifically held that Claimant was “NOT DISQUALIFIED from receiving compensation under [Section 402(h)].” . . . .As discussed, under Section 504 of the Law the Board is the ultimate fact finder that determines a claimant’s eligibility for benefits based on its de novo review. Per that section, “[t]he [B]oard shall have power . . . on appeal . . . [to] review any claim . . . decided by[] a [R]eferee . . . .” 43 P.S. § 824. . . The Department’s regulations similarly reflect that issues expressly ruled upon by either a local service center or a Referee are subject to the Board’s ultimate review. 

Since 1981, this Court has consistently held that these provisions give the Board jurisdiction to consider any issue expressly ruled upon in the determination being appealed even though the appealing party “did not intend to reopen the inquiry into . . . issue[s that] had been resolved in [the party’s] favor.” . . .  In.Black Lick Trucking, Inc. v. Unemployment Comp. Bd. of Review, 667 A.2d 454, 457 (Pa. Cmwlth. 1995) we explained that these provisions “mean that whatever issues the [local service] center addressed the [R]eferee should likewise address, and the Board in turn should decide all of the issues the [R]eferee considered, regardless of whether a party specifically raised the issue on appeal.” 667 A.2d at 457. 

admin. law - federal ALJs - appointments clause - ED Pa. case

Sanchez v. Commissioner – ED Pa. – January 29, 2020

https://www.paed.uscourts.gov/documents/opinions/20D0078P.pdf

Ana Luz Sanchez (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.

In her request for review, Plaintiff raises four claims, one which is premised on Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018), that the administrative law judge (“ALJ”) who decided her case was not appointed in compliance with the Appointments Clause of the U.S. Constitution.....The Defendant argues that Plaintiff forfeited this claim by not challenging the ALJ’s appointment in the agency proceeding....

After careful review and following the Third Circuit decision on January 23, 2020 in Cirko v. Comm’r of Soc. Sec. and Bizarre v. Comm’r of Soc. Sec., ___ F.3d ___, 2020 WL 370832 (3d Cir. Jan. 23, 2020), and for the reasons set forth below, the Court finds that the ALJ was improperly appointed under the Constitution and Plaintiff did not forfeit her Appointments Clause claim. Therefore, Plaintiff’s request for review is granted, and this matter will be remanded to the Commissioner for further proceedings in accordance with the following memorandum.

wages - FLSA - settlement - confidentiality agreement, general release - sever ability

Solkoff v. Penn State University -  ED Pa. January 23, 2020

The parties’ settlement of plaintiff’s Fair Labor Standards Act case was approved by the court, except for the confidentiality agreement and plaintiff’s general release, which the court held could be severed from the rest of the agreement.

Frustration of FLSA

The confidentiality clause and release clause frustrate the FLSA’s purpose. The central purpose of the FLSA was to provide a remedy for the consequences resulting from “the unequal bargaining power as between employer and employee.” Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945). One of the main consequences of unequal bargaining power was substandard wages, thus the FLSA sought “to secure for the lowest paid segment of the nation's workers a subsistence wage.” Kraus v. PA Fit II, LLC, 155 F. Supp. 3d 516, 525 (E.D. Pa. 2016) (citing D.A. Schulte v. Gangi, 328 U.S. 108, 114 (1946)). In accordance with this central purpose, the general releases and confidentiality clauses in FLSA settlement agreements will be rejected. 

Confidentiality clause

Generally, confidentiality clauses in FLSA settlement agreements frustrate the purpose of the FLSA by facilitating information asymmetry that hinders FLSA enforcement. 

The defendant’s employees, as well as the public at large, have an interest in ensuring fair wages and thus an interest in information about the defendant’s settlement of claims alleging a failure to provide fair wages. . . And by preventing plaintiffs from discussing their cases with other potentially harmed employees, approval of “confidentiality clauses would create new imbalances of information between Defendants and their employees.” . . . In creating this information asymmetry, confidentiality clauses stifle the robustness of FLSA enforcement by creating an obstacle to detecting FLSA violations and to vindicating FLSA rights. 

Under certain circumstances, a confidentiality clause may be approved if it is limited to prevent its undermining the purpose of the FLSA. In certain cases, the purpose of the FLSA may not be frustrated by a confidentiality clause that does not create information asymmetry between the defendant and his employees, namely by allowing the plaintiff to discuss the case and settlement with other employees, but not the media. The purpose of the FLSA is frustrated when alleged FLSA violations by an employer are concealed from its employees and the public. Therefore, contractually binding Plaintiff to make reasonable efforts to maintain confidentiality regarding this settlement will be disapproved. 

General release

The broad release of claims that includes unrelated claims and claims unknown to the plaintiff frustrates the purpose of the FLSA by allowing employers to use their superior bargaining power to disadvantage FLSA claimants. Overbroad release provisions in FLSA settlement agreements subvert the goal of remedying the consequences of unequal bargaining power. 

Because, unlike the confidentiality provision, the release provision is explicitly not severable, the Court will not approve the settlement agreement. 

certified legal interns - bar admission rules

Rule    http://www.pacourts.us/assets/opinions/Supreme/out/attach%20-%2010429709292301783.pdf?cb=1

Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010429709292301277.pdf?cb=1

employment - professional license - past criminal convictions - no relation to profession

Haveman and Spillane v. State Board of Cosmetology – Cmwlth. Court – 12-9-19 – unreported memorandum opinion**

Held: Petitioners have standing to challenge of the good-moral-character requirement of sec. 5 of the Beauty Culture Law.  Their claims are adequately developed and are ripe for consideration. Because Petitioners seek declaratory and injunctive relief on a facial constitutional challenge and are not appealing the Board’s denial of their license applications, the claims are not barred by a failure to exhaust administrative remedies, collateral estoppel, or res judicata and the Petition is not untimely. Finally, Petitioners seek declaratory relief and not damages; thus, their claims are not barred by the two-year statute of limitations. 

Petitioners had prior criminal convictions which, they say, involve conduct unrelated to the cosmetology profession. Petitioners allege a violation of their state substantive due process rights under article I, section 1 of the Pennsylvania Constitution,4 which protects Petitioners’ rights to pursue their chosen occupations free from “arbitrary and irrational legislation.” 

Petitioners assert that the good moral character requirement is facially unconstitutional under article I, section 1 because it lacks a substantial relationship to a legitimate government interest and is unduly oppressive. Petitioners also allege that the good moral character requirement is facially unconstitutional under Pennsylvania’s equal protection guarantee. 

Because Petitioners were treated differently from similarly situated individuals, such as prospective barber licensees, due to the good moral character requirement, Petitioners aver that the requirement is unduly oppressive. Petitioners assert that the good moral character requirement has no substantial or rational relationship to a legitimate government interest to justify this different treatment between similar individuals. 

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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

custody - medical marijuana

H.R. and C.A.R. v. C.P. and J.M. – Pa. Superior – reported, precedential – December 18, 2019

http://www.pacourts.us/assets/opinions/Superior/out/J-S54013-19o%20-%2010426343990129499.pdf?cb=1

Held:  The Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use, whether medical or recreational, on a parent’s ability to care for his or her child. Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly reaffirms § 5328(a) as the controlling mechanism for determining a child’s best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.”). 

That statutory framework explicitly requires the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental health and physical conditions. Thus, rather than requiring the court to ignore Father’s marijuana use, the Medical Marijuana Act obligated the trial court to contemplate Father’s physical condition, i.e. the nerve pain he complains of in his right wrist, and his reliance upon medication to subdue that pain. 

By way of comparison, OxyContin®, Vicodin®, codeine, and morphine are legal substances when prescribed by a physician; however, it is beyond cavil that, prior to making a custody determination, § 5328(a) (14) and (15) mandates that a trial court consider how a parent’s legal use of any of these substances impacts his or her child’s best interest. That is precisely the analysis that the trial court performed in the case at bar. 

child abuse - expungement - substantial pain - duration of bruise

J.S v. Departmnt of Human Services – Cmwlth. Court – reported, precedential – November 15, 2019

The ALJ’s determinations that Father disregarded a substantial and unjustifiable risk and caused Child substantial pain are both inconsistent with case law and unsupported by the record.  P.R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002)11; W.S. v. Department of Public Welfare, 882 A.2d 541 (Pa. Cmwlth. 2005); Allegheny County Office of Children, Youth & Families v. Department of Human Services, 202 A.3d 155 (Pa. Cmwlth. 2018). 

“Without substantial proof” that Child’s pain “was more than the regrettable result of corporal punishment,” we will not rely on such result “to presuppose the element of unjustifiable risk” that would support a finding of criminal negligence. P.R., 801 A.2d at 487.  To the extent the ALJ assumed a correlation between the duration of a bruise and a degree of pain, the ALJ erred. 

Hydrojet Services v. Reading Area Water Authority – Cmwlth. Court – November 14, 2019 – reported precedential opinion

The court affirmed a trial court ruling in favor of the enforcement of a settlement agreement concerning a large past-due water bill, relying primarily on Mastroni-Mucker v. Allstate Insurance Co., 976 A.2d 510 (Pa. Super. 2009), which held that the verbal agreement reached by the parties constituted a binding agreement and any delay in executing a written agreement memorializing the agreed- upon terms does not defeat that agreement

From the opinion:

The law of this Commonwealth establishes that an agreement to settle legal disputes between parties is favored. Compu Forms Control Inc. v. Altus Group Inc., 574 A.2d 618, 624 (Pa. Super. 1990). There is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant. Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 946 (Pa. Super. 2004). If courts were called on to re-evaluate settlement agreements, the judicial policies favoring settlements would be deemed useless. Greentree Cinemas Inc. v. Hakim, 432 A.2d 1039, 1041 (Pa. Super. 1981). 

Settlement agreements are enforced according to principles of contract law. Pulcinello v. Consolidated Rail Corp., 784 A.2d 122, 124, (Pa. Super. 2001), appeal denied, 796 A.2d 984 (Pa. 2002). “There is an offer (the settlement figure), acceptance, and consideration (in exchange for the plaintiff terminating his lawsuit, the defendant will pay the plaintiff the agreed upon sum).” Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1349 (Pa. 1990), cert. denied, 502 U.S. 867 (1991). 

Where a settlement agreement contains all of the requisites for a valid contract, a court must enforce the terms of the agreement. McDonnell v. Ford Motor Co., 643 A.2d 1102, 1105 (Pa. Super.), appeal denied, 652 A.2d 1324 (Pa. 1994). This is true even if the terms of the agreement are not yet formalized in writing. Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999); see Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133, 147 (Pa. Super. 2006) (stating “an agreement is binding if the parties come to a meeting of the minds on all essential terms, even if they expect the agreement to be reduced to writing but that formality does not take place.”). 

Pursuant to well-settled Pennsylvania law, oral agreements to settle are enforceable without a writing. Pulcinello, (citing Kazanjian v. New England Petroleum Corp., 480 A.2d 1153, 1157 (Pa. Super. 1984)). An offeree’s power to accept is terminated by (1) a counter-offer by the offeree; (2) a lapse of time; (3) a revocation by the offeror; or (4) death or incapacity of either party. See First Home Savings Bank, FSB v. Nernberg, 648 A.2d 9, 15 (Pa. Super. 1994) (citing Restatement (Second) of Contracts §36 ([Am. Law Inst.] 1981)), appeal denied, 657 A.2d 491 (Pa. 1995). However, “[o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such.” Restatement (Second) of Contracts §42, Comment c. ([Am. Law Inst.] 1981). 

Mastroni-Mucker, 976 A.2d at 518.

Where a settlement agreement contains all of the requirements for a valid contract, a court must enforce the terms of the agreement even if they were never formalized in writing. See also Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Board, 739 A.2d 133, 136 (Pa. 1999) (holding that “[i]f the parties agree upon essential terms and intend them to be binding, a contract is formed even though they intend to adopt a formal document with additional terms at a later date”). Section 27 of the Restatement (Second) of Contracts includes similar language, stating that: 

Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations. 

RESTATEMENT (SECOND) OF CONTRACTS §27 (Am. Law Inst. 1981).

In this case, RAWA does not dispute that the parties reached a verbal agreement with respect to Hydrojet’s unpaid water and sewage bills at the meeting between the parties on December 5, 2017. This verbal agreement called for Hydrojet to make installment payments until these unpaid bills were fully satisfied. As can be seen in the subsequent written settlement agreement, the parties agreed that Hydrojet owed RAWA a total of $133,298.00 for past water service and that Hydrojet would make 98 monthly payments of $1,020.00 along with a lump sum payment of $33,329.50 to satisfy these outstanding charges, upon which RAWA would release Hydrojet from any claims relating to its past water usage. Hence, the necessary prerequisites for a valid contract were established at the December 5, 2017 meeting, i.e., offer, acceptance, and consideration, and the trial court did not err in concluding that the verbal agreement was a sufficient basis upon which to rely in granting Hydrojet’s enforcement petition. 

UC - vol. quit - employer reprimand

Decker v. UCBR – Cmwlth. Court – unreported** memorandum decision – November 4, 2019

Burden of proof - A claimant who voluntarily terminates her employment has the burden to establish a necessitous and compelling reason for doing so. Petrill v. Unemployment Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must prove that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). 

Reprimand, etc. - It is well settled that resentment of a supervisor’s reprimand, absent unjust accusations, abusive conduct, or profane language, does not constitute a necessitous and compelling reason to voluntarily terminate one’s employment. Krieger v. Unemployment Comp. Bd. of Review, 415 A.2d 160, 161 (Pa. Cmwlth. 1980).  

Furthermore, “an emotional upset over a reprimand imposed by the employer does not as a rule constitute ‘cause of a necessitous and compelling nature.’” Yasgur v. Unemployment Comp. Bd. of Review, 328 A.2d 908, 910 (Pa. Cmwlth. 1974) (citation omitted). 

Here, Claimant contends that she was compelled to quit because Employer created a hostile, uncomfortable work environment and because she was singled out, embarrassed, and humiliated in front of her co-workers.3 Claimant also asserts that Mr. Nichols unjustifiably threatened her job. We conclude that the record belies these claims. 

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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

evidence - courts - documents - authentication - Pa. R.El. 901 and 902 - amendments

Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010420753285882660.pdf?cb=1

Rules  http://www.pacourts.us/assets/opinions/Supreme/out/Order%20attachment%20-%2010420753285882712.pdf?cb=1

Report http://www.pacourts.us/assets/opinions/Supreme/out/Order%20report%20-%2010420753285882534.pdf?cb=1

Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010420751285878973.pdf?cb=1

Rules  http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%2010420751285878986.pdf?cb=1

Report http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%2010420751285880083.pdf?cb=1

legislative power - non-delegation

Pennsylvania AFL-CIO v. Commonwealth – Cmwlth. Court – October 1, 2019 – precedential, reported

Article II, section 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, § 1. To avoid violating this provision, the General Assembly must make the “basic policy choices involved in [its] ‘legislative power’” when it authorizes some other entity to act. Protz II, 161 A.3d at 833.

This restriction services dual purposes: “it ensures that duly authorized and politically responsible officials make all of the necessary policy decisions, as is their mandate per the electorate,” and it “protect[s] against the arbitrary exercise of unnecessary and uncontrolled discretionary power.” Id.(citation omitted).

The restriction on delegation is not absolute, however, and the General Assembly may “assign the authority and discretion to execute or administer a law” to some other entity if it makes “the basic policy choices” and “include[s] ‘adequate standards which will guide and restrain the exercise of the delegated administrative functions.’” Id. at 833-34 (quoting Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005) (PAGE)).

Accordingly, a “law must contain some intelligible principle to which the person or body authorized to [act] is directed to conform.” Id. at 834 (internal quotation marks and citation omitted) (alteration in the original). Further, a law must include “procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of the delegated power.” Id.

The non-delegation doctrine does not prohibit the General Assembly from “adopting as its own a particular set of standards which already are in existence at the time of adoption.” Protz II, 161 A.3d at 838 (emphasis added).

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actions against the Commonwealth - laches and estoppel

Berry v. State Employees Retirement Board – Cmwlth. Court – October 9, 2019 – unreported**

Laches

“A party asserting the doctrine of laches must first show that there was a delay caused by the other party’s failure to exercise due diligence, and second, prejudice from that delay.” McGaffic v. City of New Castle, 74 A.3d 306, 317 (Pa. Cmwlth. 2013). 

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999.

Equitable estoppel

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999). 

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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

tax sale - notice - personal service - incarcerated owner is "owner-occupant"

Appeal of Hansford – Cmwlth. Court – October 1, 2019 – reported, precedential

Held:  Incarcerated person was an “owner occupant” under Real Estate Tax Sale Law, 72 P.S. secs. 5860.102 and thus was entitled to written notice of the tax sale, by personal service, under 72 P.S. secs. 5860.601(a)(3).

Heightened concern for owner-occupants

Section 601(a)(3) [of the RETSL] demonstrates the General Assembly’s ‘heightened concern for owner occupants being divested of the very property in which they are residing.’ Matter of Tax Sales by Tax Claim Bureau of Dauphin C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the RETSL], the [General Assembly] expressed a desire to provide a qualitatively different type of notice to an owner occupant and afford such owner with increased protection by way of additional notice.’ McKelvey v. Westmoreland C[ty.] Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).  Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth. 2016). 

Focus on compliance of tax claim bureau, not on the alleged neglect of the 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 [Bureau] comply with the requirements of the [statute].’ [In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cty. of Props.], 132 A.3d [637,] 644 [(Pa. Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of Pike Cty.], 834 A.2d [1247,] 1251 [(Pa. Cmwlth. 2003)]). It is the conduct of the [Bureau] that is determinative of compliance with statutory notice provisionsClemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).

Temporary absence of owner-occupant is not dispositive

The fact that an owner may be temporarily physically incapable of inhabiting his property does not mean he is no longer an owner occupant, e.g. if hospitalized or incarcerated.  The tax claim bureau is not w/o a possible remedy in this situation.  Under circumstances where an owner who resides at the property may not be physically present at his property during the relevant time period, if the owner cannot be personally served, “the [B]ureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown,” otherwise, the Bureau is mandated to personally serve the owner occupant. 72 P.S. § 5860.601(a)(3). The Bureau did not request waiver of personal service in the instant case.

Tax sales - notice - "additional notification efforts"

Delaney v. Montgomery County Tax Claim Bureau – Cmwlth. Court – August 27, 2019 – unreported memorandum decision**

Held:  Tax sale set aside because of failure of TCB to make proper “additional notification efforts”  concerning tax sale, as required by RETSL sec. 607.1, 72 P.S. sec. 5860.607a(a), when mailed notification is returned w/o signed return receipt or “under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee.”

Burden of proof – filing exceptions overcomes presumption of regularity – strict construction – due process

“It is the taxing authority’s burden to prove compliance with the statutory notice provisions. Casanta v. Clearfield County Tax Claim Bureau, [435 A.2d 681, 683 (Pa. Cmwlth. 1981)]. In Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)], our Supreme Court established that a prima facie presumption of regularity in a tax sale exists until the contrary is shown. In Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, [557 A.2d 38 (Pa. Cmwlth. 1989)], this Court, harmonizing Casanta with Hughes, held that the filing of exceptions overcomes the presumption of regularity in the tax sale; accordingly, the filing of exceptions requires a bureau to prove that it has complied with the statutory notice requirements. Strict compliance with those requirements is required in order to ensure due process, and the burden to show strict compliance lies exclusively with the tax claim bureau. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289 (Pa. Cmwlth. 1996).” In re Tax Sale of Real Property Situate in Paint Township, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).  (emphasia added)  It is well settled that the statutory notice provisions in the Tax Sale Law “must be strictly construed lest a person be deprived of property without due process.” Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013). The tax claim bureau has the burden of proving its compliance with the notice provisions. Id.

Significant doubt about actual receipt of notice – additional notice requirements – Sec. 607.1 – 72 P.S. sec. 5860.607a(a)

When there is “significant doubt” about actual receipt of notice of a tax sale, the tax claim bureau must undertake additional efforts to give notice

[B]efore the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.  72 P.S. §5860.607a(a) (emphasis added). 

In this case, the TCB admittedly did none of those extra things, which the court called “the mandatory minimum search required” by RETSL.

Newspaper notice – fact of notice v. content of notice

The TCB presented evidence that notices had been placed in the local newspapers and legal journal.  However, the it not provide evidence of the content of those notices.  “[A]bsent any evidence concerning the content of the newspaper advertisements, the trial court erred in holding that the Bureau established compliance with the publication requirement of Section 602(a) of the Tax Sale Law.

Focus of RETSL on TCB compliance with each and every element of the statutory requirements

It is well settled that a failure by a tax claim bureau to comply with each and every statutory requirement will nullify a tax sale. Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003). Additionally, we have repeatedly explained that where notice is at issue, the proper focus is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the bureau comply with the requirements of the statute. Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099 (Pa. Cmwlth. 2010).

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