UC - willful misconduct - COVID policy (2-1 decision)

Rivera v. UCBR – 2-20-24 – Cmwlth. Court – reported decision (2-1 decision)

https://www.pacourts.us/assets/opinions/Commonwealth/out/1487CD22_2-20-24.pdf?cb=1

 

Majority:

Claimant did not have good cause for violating an employer policy, which required employees to get vaccinated or self-test weekly, absent medical grounds or a sincerely-held religious belief regarding vaccination and testing. Claimant provided maintenance and service inside the apartments in an 80-unit elderly housing complex.

 

Dissent:

This case presents an example of the concerns that I articulated in my dissent in Brown v. UCBR, 276 A.3d 322, 333 (Pa. Cmwlth. 2022), wherein I explained that the citizens of this Commonwealth have a protected common law right to exercise autonomy over their medical treatment and asserting that legal right should not amount to willful misconduct or serve as the basis for denying one unemployment compensation benefits. 

As noted in my dissent in Brown, which I incorporate herein by reference, in Pennsylvania, courts have adopted the common law right to self-determination. Our Supreme Court has recognized this right and that it is the basis for the concept of informed consent. Shinal v. Toms, 162 A.3d 429, 452 (Pa. 2017) (“the right to be free from bodily invasion developed the doctrine of informed consent”). Specifically, and as also noted by the United States (U.S.) Supreme Court, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891). In Cruzan by Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 269 (1990), then-Chief Justice Rehnquist stated that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” 

 

 

 

 

 

UC - willful misconduct - violation of federally-mandated COVID policy

Bowen v. UCBR – Cmwlth. Court – 1-9-24 – reported  decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/1103CD22_3-4-24.pdf?cb=2

 

Held: Claimant guilty of willful misconduct for failing to comply with ER’s reasonable vaccine policy – following federal mandate for federal contractors -- which required vaccination or medical or religious exemption.  Claimant did not get vaccinated or seek any exemption. Claimant claimed only that her unarticulated personal belief excused her conduct.

An employer must prove the existence of a work rule, the reasonableness of the rule, the claimant’s knowledge of the rule, and the claimant’s subsequent violation of the rule. Pierce-Boyce v. Unemployment Comp. Bd. of Rev., 289 A.3d 130, 135-136. (Pa. Cmwlth. 2022). 

“In determining reasonableness, this Court should consider whether application of the rule or policy under the circumstances is fair and just and appropriate to accomplish a legitimate interest of the employer.” Spirnak v. UCBR., 557 A.2d 451, 453 (Pa. Cmwlth. 1989); see also, e.g., Brown v. UCBR., 276 A.3d 322, 328-29 (Pa. Cmwlth. 2022) (finding employer’s flu vaccine policy fair and just where it allowed medical or religious exemptions but rejected a form document submitted by the claimant asserting the claimant’s right to not give consent). 

Claimant did not show good cause for non-compliance.- Once an employer establishes that an employee committed willful misconduct, the burden shifts to the employee to establish good cause for her actions. Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022). “The employee can establish good cause where [her] actions are justified or reasonable under the circumstances.” Id. (internal quotations omitted). Whether good cause existed for an employee’s actions is evaluated considering all the attendant circumstances. Halloran v. Unemployment Comp. Bd. of Rev., 188 A.3d 592, 597 (Pa. Cmwlth. 2018). 

Once an employer establishes that an employee committed willful misconduct, the burden shifts to the employee to establish good cause for her actions. Woodring v. Unemployment Comp. Bd. of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022). “The employee can establish good cause where [her] actions are justified or reasonable under the circumstances.” Id. (internal quotations omitted). Whether good cause existed for an employee’s actions is evaluated considering all the attendant circumstances. Halloran v. UCBR, 188 A.3d 592, 597 (Pa. Cmwlth. 2018). 

An employee does not commit willful misconduct if her employer’s directive directly threatens the employee’s health or safety. Dougherty v. UCBR., 686 A.2d 53, 54 (Pa. Cmwlth. 1996). However, a claimant’s subjective beliefs alone do not establish good cause for failing to comply with an employer’s directive. Id. at 55. Here, the claimant had only a subjective belief about the safety and efficacy of the vaccine.

This summary also appears in the PLAN Legal Update, which can be accessed without a password.

 

 

 

 

LT - L's damages - abandonment v. eviction

1700 Market Street Associates v. Common Grounds

 

Pa.Super. - 4-1-24 - reported

 

https://www.pacourts.us/assets/opinions/Superior/out/J-A28029-23o%20-%20105884863260982536.pdf?cb=1

 

L cannot recover both rent and possession

This Court, almost 100 years ago, declared that a landlord cannot evict a tenant and then recover both the possession of the property and the rent for the balance of the term. See Greco v. Woodlawn Furniture Co., 99 Pa. Super. 290, 292 (1930). However, if the tenant abandons the property, the landlord is entitled to possession and accelerated rent:

The distinction must always be made between possession of vacated premises taken by the landlord merely to protect the property or minimize the damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction  Id.  

 

“[A] landlord must elect whether to confess judgment for possession and for all monies then due, or to confess judgment for all monies due for the entire term.” Homart Dev. Co. v. Sgrenci, 662 A.2d 1092, 1101 (Pa. Super. 1995) (en banc). “The landlord . . . cannot . . . enter judgment for possession and for all mon[ie]s which would otherwise be due as rents through the end of the term.” Id. Thus, [i]f the landlord terminates the lease and evicts the tenant before the acceleration clause is enforced, the landlord cannot recover rent for the post-eviction period. If the landlord collects accelerated rent and receives possession of the property by abandonment, the landlord may keep the accelerated rent, but is required to account to the tenant for rent received from a new tenant. Ferrick v. Bianchini, 69 A.3d 642, 656 (Pa. Super. 2013). The legal crux of this matter is whether Appellants evicted Appellees or whether Appellees abandoned the premises.

 

Proving abandonment

To establish abandonment of a lease, the landlord must prove: (1) an intention to abandon; and (2) conduct by which the intention is carried through. See Ferrick, 69 A.3d at 656. Conversely, an eviction is possession of a property by a landlord “which would be adverse to any resumption of occupation by the tenant.” Greco, 99 Pa. Super. at 292. Pennsylvania’s
Landlord Tenant Act, 68 P.S. §§ 250.101-250.602, was enacted in 1951 and “is a comprehensive regulatory scheme governing the landlord and tenant relationship. It sets up a procedure whereby a landlord may repossess [the]
premises if he has a right to evict the tenant.” Fraport Pittsburgh, Inc. v. Allegheny Cnty. Airport Auth., 296 A.3d 9, 19 (Pa. Super. 2023) (internal quotations and citations omitted). “It is intended that [the Landlord Tenant Act] shall furnish a complete and exclusive system in itself,” and repealed all inconsistent acts. 68 P.S. § 250.602.

Eviction procedure --  must comply with LT Act by filing complaint

To evict a tenant, landlords must comply with the procedure established in the Landlord Tenant Act. A complaint for possession must be filed in a municipal court or with the magistrate court, and “[i]f it appears that the complaint has been sufficiently proven, the [judge] shall enter judgment against the tenant that the real property be delivered up to the landlord.” 68 P.S. § 250.503(a)(1). Five days after judgment is entered, the landlord may request, and the judge shall issue, a writ of possession for the premises. See 68 P.S. § 250.503(b). “This writ is to be served within no later than forty-
eight hours and executed on the eleventh day following service upon the tenant of the leased premises.” Id.

 

Regardless of how Appellants want to characterize their actions, Appellees were legally evicted from the premises. Moreover, Appellants followed the procedure set forth in the confession of judgment clause of the Lease. Thus, the trial court did not err or abuse its discretion in finding that Appellees were evicted, and, therefore, Appellants are only entitled to damages for unpaid rent through July 1, 2022, when Appellants obtained possession of the property. Homart, supra; Ferrick, supra.

Judgments - opening v. striking

Woods at Namanns Homeowners Assn. v. Cavuto - Cmwlth Court  4-1-24 – unreported ***

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/947CD22_4-1-24.pdf?cb=1

There are several categories of judgments, including consent, default, and confession. Such judgments, in turn, may be challenged by filing a single petition to open or strike the judgment. See, e.g., Pa.R.Civ.P. 206.1(b), 2959. Opening a judgment is distinct from striking a judgment. Cintas Corp. v. Lee’s Cleaning Servs. Inc., 700 A.2d 915, 918 (Pa. 1997) (citation omitted).

In considering whether to strike the judgment, the court must accept as true “all well-pleaded facts.” Id. (citation omitted). But not all facts: “a court may only look at the facts of record at the time the judgment was entered to decide if the record supports the judgment.” Id. at 919 (citation omitted); Linett v. Linett, 254 A.2d 7, 10 (Pa. 1969) (holding that the court, whether trial or appellate, “will only look at what was in the record when the judgment was entered in its search for defects”). “A petition to strike can only be granted if a fatal defect appears on the face of the record,” at the time judgment was entered. Cintas, 700 A.2d at 919 (citation omitted).10

“In contrast, a petition to open a judgment is an appeal to the equitable powers of the court,” and we review the court’s decision for an abuse of discretion. Id. The petitioner must (1) promptly file the petition to open; (2) excuse the failure to appear, timely answer, or otherwise dispute the judgment; and (3) “show a meritorious defense.” Id. (citations omitted). A petition to open “challenge[s] the truth of factual averments in the record at the time judgment was entered . . . .” Id. (citation omitted).

An order denying a petition to open or strike judgment is an appealable order as of right. Pa.R.A.P. 311(a)(1). An order granting a petition to open or strike judgment is not appealable as of right under Rule 311(a)(1). See Joseph Palermo Dev. Corp. v. Bowers, 564 A.2d 996, 997 (Pa. Super. 1989) (explaining that Rule 311 had formerly permitted such appeals before it was amended, effective July 1, 1989). The Bowers Court explained that an “order opening judgment . . . does not end the litigation, nor preclude participation by certain parties in the litigation, nor result in the irreparable loss of the claim. On the contrary, this order opens up the possibility of further litigation between the parties, while causing neither irreparable loss nor prejudice to” the aggrieved party. Id. at 998. “Review of the correctness of the trial court’s action in opening the judgment is merely postponed to a later date.” Id. Thus, in Bowers, the Superior Court quashed an appeal from an order granting a petition to open a confessed judgment. Id. at 997.

 

*** Commonwealth Court – citing unreported decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter69/s69.414.html&d=reduce

§ 69.414. Citing Judicial Opinions in Filings.

 (a)  An unreported opinion of this Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

 

 

admin. law - mailbox rule - proof of mailing required

Mixell v. Board of Assessment Appeals – Cmwlth. Court – 3-20-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/1243CD22_3-20-24.pdf?cb=1

 

HELD:  Trial court erred in dismissing appeal of landowner/taxpayer seeking special tax status under Clear and Green Act, when owner failed to attend scheduled hearing, about which owner claimed she had never received noticed. 

 

Specifically, the appellate court held that the trial court erred in applying the “mailbox rule,” which raises a rebuttable presumption that a mailed notice was received, because there was no evidence that the notice of hearing was, in fact, mailed.  

 

From the opinion:

 

“Under the mailbox rule, proof of mailing raises a rebuttable presumption that the mailed item was received.” Department of Transportation, Bureau of Driver Licensing v. Grasse, 606 A.2d 544, 545 (Pa. Cmwlth. 1991). For the mailbox rule to apply, “there must be some evidence . . . that the notice was mailed . . . .” Douglas v. Unemployment Compensation Review Board, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016). “[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.” Id. 

The presumption under the mailbox rule, once established, may be rebutted. Grasse, 606 A.2d at 545. However, “the presumption . . . is not nullified solely by testimony denying receipt of the item mailed.” Id. 

. . . .In Douglas, this Court determined substantial evidence produced at the hearing did not support application of the mailbox rule. 151 A.3d at 1193. The claimant contended that the notice was not mailed and that she did not receive the notice. The only evidence offered was the notice itself, which bore a “mailed date.” Id. We noted that “[t]he ‘mailed date’ was part of the information included in the notice itself at the time the notice was prepared. There [was] no subsequent notation in the file indicating that the notice was, in fact, mailed.” Id. Thus, we concluded that, “[w]ithout proof of mailing or the presumption of regularity to establish that the notice was mailed, the presumption of receipt—i.e., the mailbox rule—cannot be applied.” Id. Thus, we vacated the order and remanded for further proceedings. Id. 

Similarly, in Commonwealth v. Thomas, 814 A.2d 754, 760 (Pa. Super. 2002),4 the Superior Court rejected application of the mailbox rule based on the evidence presented. The Superior Court concluded that the Commonwealth failed to meet the evidentiary threshold necessary for application of the mailbox rule’s presumption of receipt. Id. at 759. 

The Superior Court explained that the  “Commonwealth, as the party which sought to invoke the mailbox rule presumption . . . had the burden of proof to show that the notice was in fact mailed or that it had been prepared and placed in the regular place of mailing.” Id. at 760. The Court noted that the Commonwealth presented only “circumstantial evidence” suggesting that the notice had been mailed, but it did not establish proof of the same. Id. The Commonwealth’s evidence consisted of an employee’s testimony regarding the general practice for the preparation and mailing of summary appeal hearing notices but did not offer any testimony regarding mailing the specific hearing notice at issue. Id. at 759. The employee acknowledged “that there was no official record kept of any of the notices . . . prepared and given to the tipstaff for delivery to the mailroom on” the day the notice was allegedly prepared. Id. There was no evidence, such as postal records or logs, that “showed that this notice was in fact mailed . . . or that this notice had been prepared and taken to the regular place of mailing.” Id. at 760. Although the notice itself was dated, there were no markings indicating that the original had been mailed. Id. at 756. The Superior Court held that “[m]erely producing an un-timestamped copy of a hearing notice . . . and offering generic testimony as to the standard mailing procedures for summary appeal hearing notices . . . was insufficient.” Id. at 760. Upon determining that the mailbox rule’s presumption of receipt was not triggered, the Superior Court reversed and remanded the matter for a de novo trial. Id. at 761-62. 

...... Here, the trial court did not conduct any form of evidentiary hearing or factfinding proceeding. Rather, the trial court dismissed Taxpayer’s appeal on a PO upon determining that the mailbox rule applied even though Taxpayer disputed that the notices were mailed and that she received them. The only evidence offered in support of mailing was a copy of the scheduling notices attached to the PO. Although the notices are dated June 8, 2022, they bear no indication that they were mailed. . . .The Board did not offer docket entries or testimony supporting that the notices were placed in the regular place of mailing. See Douglas, 151 A.3d at 1193 (holding that the “mailed date” on the notice, in and of itself, without more was insufficient to establish proof of mailing in the face of a challenge). 

Even assuming that the hearing notices themselves could constitute proof of mailing under local rule, see Breza, the trial court did not afford Taxpayer an opportunity to rebut the presumption of receipt. Although Taxpayer initially stated she was unable to attend the hearing, she pled in her New Matter and asserted in her brief that she never received the hearing notice. The trial court simply rejected Taxpayer’s argument and granted the PO without affording Taxpayer the opportunity to adduce evidence to corroborate her allegation of non-receipt. In so doing, the trial court erred and abused its discretion. 

 

 

 

 

admin. law - continuance - due process

Hite v. City of McKeesport – Pa. Cmwlth. – 3-8-24 – reported opinion

https://www.pacourts.us/assets/opinions/Commonwealth/out/180CD23_3-11-24.pdf?cb=1

 

Held: Claimant for disability pension was denied due process when his request for a continuance to subpoena an examining physician was denied.

 

From the opinion:  

 

The basic elements of procedural due process are “adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” . . . . Additionally, the opportunity to be heard must occur “at a meaningful time and in a meaningful manner.” . . . . This Court has noted that in addition, due process requires “an opportunity to offer evidence in furtherance of such issues.” . . . .We have further observed that “[t]he key factor in determining whether procedural due process is denied is whether the party asserting the denial of due process suffered demonstrable prejudice.” 

Additionally, the power to grant or refuse a continuance is an inherent power of a court or administrative agency, which is normally discretionary and subject to review only on a clear showing of an abuse of that discretion.  . . . .In such cases, our chief considerations in determining the existence of an abuse of discretion are “whether or not the grant or refusal of the continuance would be in furtherance of justice and whether or not a refusal would prejudice the rights of one of the parties.”

For example, in [one case] this Court concluded that the State Civil Service Commission abused its discretion in denying a continuance for the petitioner to obtain counsel, when the petitioner had attempted but was unable to obtain counsel prior to the hearing. See Replogle, 430 A.2d at 1222. By contrast, in a workers’ compensation matter, this Court upheld the denial of a continuance where each party had had ample opportunity to present its case, and the damaging testimony “sought to be refuted was extracted by appellant’s own counsel who called the claimant as his own witness as if on cross-examination, after a continuance at appellant’s request.” . . .. . This Court concluded that there was no abuse of discretion in denying a second request for a continuance in such circumstances.. 

In the instant matter, Hite requested a single continuance in order to secure the presence of a necessary witness.13 The hearing officer denied that request. However, the refusal of the continuance was not in the furtherance of justice: the opportunity to cross-examine Dr. Tucker was integral to Hite’s arguments on appeal.. . . . Further, the denial did prejudice Hite, as Dr. Tucker’s opinion was the basis for denying him his disability pension. . . . .Finally, if the hearing officer had granted the continuance, Hite would continue to receive what he had been receiving from the Plan: no money and no benefits. Accordingly, the denial prejudiced Hite, but not the Board.

 

 

procedural due process - right to pre-deprivation hearing - legislative act doctrine not applicable

Washington v. Pa. Department of Corrections – Pa. Supreme Court – December 19, 2023

 

Majority https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023mo%20-%20105773995249529739.pdf?cb=1

 

Concurring https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023co%20-%20105773995249530389.pdf?cb=1

 

Dissenting  https://www.pacourts.us/assets/opinions/Supreme/out/J-32-2023do%20-%20105773995249529957.pdf?cb=1

 

 Held: Prisoner’s right to procedural due process violated when it increased the rate of deductions from his prison pay from 20% to 25% without pre-deprivation notice and hearing. 

 

This was the case even though the increased deduction resulted from a statutory change, because the prison policy about deductions was not universal or even near-universal in application, but rather was applied differently to different inmates, based, inter alia, on their individual financial circumstances.

 

 

 

real property - tax sale - RETSL - waiver of personal services of notice of sale

Johnson v. Greene County Tax Claim Bureau – Cmwlth. Court – 1-16-24 – not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/266CD22_1-16-24.pdf?cb=1

 

Held: Tax sale was proper under Real Estate Tax Sale Law (RETSL), 72 P.S> sec. 5860.101 et seq., since

1. TCB complied with notice provisions of RETSL
2. TCB established good cause for waiver of personal service requirement

 

Good cause for waiver of personal service established, since

1. TCB twice made good faith efforts at personal service at the owner-occupied property
2. Objector called the TCB and was aware of the sale
3. Objector admitted having seen the notice of sale posted on the property

 

From the opinion

 

Standard of review – Appellate review in tax sale cases is limited to determining whether the trial court abused its discretion or erred at law. See Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006). When specifically reviewing a trial court’s decision to grant a tax claim bureau’s request to waive personal service, “we focus our inquiry on whether the trial court abused its discretion.” Appeal of Neff, 132 A.3d at 650. In considering whether a trial court abused its discretion, this Court looks to whether the trial court engaged in “a manifestly unreasonable exercise in judgment[] or [rendered] a final result that evidences partiality, prejudice, bias, or ill-will.” Allegheny Cnty. v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa. Cmwlth. 2009) (citation omitted). 

 

Actual notice of sale excuses strict compliance with notice provisions - While a tax sale is typically  void in the face of defective service, this Court has determined that “strict compliance with the notice requirements of Section 602 is not required when the [b]ureau proves that a property owner received actual notice of a pending tax sale.” Appeal of Neff, 132 A.3d at 645 (citing Sabbeth v. Tax Claim Bureau of Fulton Cnty., 714 A.2d 514, 517 (Pa. Cmwlth. 1998)). The trial court determined Objector had actual notice of the tax sale because Objector admitted to seeing the physical posting on the Property. Because Objector received actual notice, the Bureau was not required to show it satisfied Section 602’s certified mailing requirement. See id. 

 

The Tax Claim Bureau established good cause for waiver of personal service

The Petition alleged the Bureau made good faith efforts at personal service and did post the property for sale. Because the Bureau’s actions are cloaked in a presumption of regularity, we cannot say the Petition was facially defective. See Famageltto, 133 A.3d at 348. Therefore, we must determine whether the evidence the Bureau presented at the hearing on the Objections was sufficient to establish good cause to waive personal service under Section 601(a)(3). See id. at 348-89. 

In Appeal of Neff, this Court noted that while “good cause shown” is not defined in the Tax Sale Law, Pennsylvania courts have defined it to require a “substantial reason, one that affords a legal excuse.” Appeal of Neff, 132 A.3d at 650  (citation omitted). We also explained that what constitutes good cause shown will depend on the particular facts and circumstances in each case. Id. at 649-50. Finally, we noted “‘the determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion.’” Id. at 650 (citation omitted). 

Here, the Bureau established it attempted personal service on two occasions, once during the work week and once during the weekend, at different times of day. The Bureau also established it published notice of the tax sale and attempted to serve Objector through the mail on numerous occasions. In addition, the Bureau established it posted the Property and Objector had actual notice of the tax sale by virtue of seeing the posting. Under these circumstances, we cannot hold the trial court abused its discretion in determining the Bureau established good cause to waive personal service. 

++++++++++++++++++

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 (a)  An unreported opinion of this Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

UC - self-employment

Hope v. UCBR – Cmwlth Court – 1-16-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/1208CD22_1-16-24.pdf?cb=1

 

 

Held: UCBR decision that claimant was self-employed and liable for non-fault overpayment upheld, because

• Claimant controlled and directed his services as a tax consultant
• He chose the companies with whom he contracted
• He negotiated his pay rates
• He performed services on his own computer
• He most commonly received 1099 tax forms.

The decision has extended discussions of Starinieri v. UCBR, 289 A.2d 726 (Pa. 1972), and Lowman v. UCBRw, 235 A.3d 278 (Pa. 2020).