UC - voluntary quit - working conditions, health reasons

Astolfi v. UCBR - Cmwlth. Court - May 27, 2010 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/1866CD09_5-27-10.pdf


The court reversed a UCBR decision in favor of the claimant, ruling "[c]oncluding that the facts, as found, do not support the Board’s conclusion that Claimant resigned from her job for necessitous and compelling reasons." It found that her work situation was "uncomfortable but not intolerable," and that a quit for health reasons was negated by claimant's failure to mention those reasons to her employer.


Claimant testified that a chaotic work environment caused her to develop high blood pressure and to incur bouts with hives. Claimant testified that two doctors had advised her to resign from her job. In support, she introduced a note from her psychiatrist stating that Claimant “expressed to me severe stress from the conditions at her work.” Claimant also offered a note from her chiropractor opining that Claimant’s headaches “were likely associated with clenching of the jaw and cervical spine dysfunction.” Dr. Kelly observed that clenching of the teeth is a “direct response to stress,” and that Claimant had complained of work stress on several occasions. Dr. Kelly wrote that she had “seen a difference in [Claimant’s] health since she left her job.”


Claimant believed her resignation was medically necessary, and reiterated at a remand hearing that two doctors had advised her to resign. Claimant offered a follow-up letter from her chiropractor stating that "I had asked [Claimant] on several occasions if it would be possible for her to leave her job due to medical reasons. Her current occupation was adversely affecting her health and I felt that it was necessary for her to leave her job if she was going to improve. Her health was declining largely due to the ongoing stress at her work place." At the remand hearing, the employer, a dentist, disputed Claimant’s characterization of the work atmosphere and the events leading up to Claimant’s resignation.


The Board reversed the Referee’s denial of benefits and granted Claimant’s claim for benefits. Acknowledging that verbal reprimands do not justify a voluntary quit, the Board also observed that this is not the case for verbal abuse. The Board credited Claimant’s testimony that she was “verbally abused” by the employer and found, further, that Claimant took reasonable steps to preserve her employment by presenting her concerns to the employer.


The court found, as a matter of law, that claimant had not shown a necessitous and compelling reason to quit her job. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. UCBR, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). Based upon the record before us, we cannot say that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.

Our case law distinguishes normal workplace strains from pressures extreme enough to justify a resignation. As we have explained: Resentment of a reprimand, absent unjust accusations, profane language or abusive conduct …; mere disappointment with wages …; and personality conflicts, absent an intolerable working atmosphere … do not amount to necessitous and compelling causes. Lynn v. UCBR, 427 A.2d 736, 737 (Pa. Cmwlth. 1981).

Claimant was not publicly reprimanded or accused of being a criminal like her counterpart in First Federal. She was not subjected to the kinds of intolerable abusive language experienced by successful claimants in other voluntary quit cases. Claimant’s testimony demonstrated “resentment” and “personality conflicts,” Lynn, 427 A.2d at 737, but not an intolerable work environment. Being “yelled” at for talking too much to patients, which is the worst Claimant suffered, is not comparable to being called names or being unjustly accused of criminal conduct. Her work environment was uncomfortable, but not intolerable.

The majority rejected the dissent's emphasis on the fact that Claimant was advised by her chiropractor to quit her job, stating that a reasonable person suffering from rashes, headaches and high blood pressure caused by circumstances at work would feel compelled to terminate her employment. The majority said that this was "beside the point, since Claimant did not establish the elements necessary to have a compelling medical reason to quit.

Pigeon-holing claimant's argument as one relying solely on health reasons, the majority said that to establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation….Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994) (emphasis added) (citation omitted). Claimant met with the employer to discuss the tension between her coworkers, but she never informed the employer of any health problems or that her chiropractor had advised her to quit. Absent such evidence, Claimant’s alleged health problems are simply not relevant.

Dissent

Here, Employer’s verbal abuse produced pressure on Claimant that was both real and substantial. Indeed, the pressure caused Claimant to suffer from rashes, headaches and high blood pressure. Moreover, any reasonable person suffering such physical maladies as a result of circumstances at work would be compelled to terminate her employment. In fact, Claimant’s physician advised Claimant to do just that. To the extent Employer’s verbal assaults on Claimant were due to personality conflicts, given their effect on Claimant’s health, they were intolerable. A claimant should not be required to continue to endure a work environment that causes such afflictions as rashes, headaches and high blood pressure.

The majority states, “We cannot say on this record that Claimant’s work environment was intolerable or that a reasonable person would have acted in the same manner.” In other words, the majority concludes that: (1) Claimant should continue to tolerate the rashes, headaches and high blood pressure caused by Employer’s insults and yelling; and (2) Claimant’s physician is not a reasonable person for suggesting that Claimant quit her job for the sake of her health. I cannot agree with these conclusions.

The majority also suggests that, pursuant to case law, verbal abuse cannot be a necessitous and compelling reason to leave employment unless it is public, racial or sexual in nature. (Majority op. at 6-7.) However, abusive conduct of any kind is always a necessitous and compelling reason for leaving employment. First Federal Savings Bank v. UCBR, 957 A.2d 811 (Pa. Cmwlth. 2008) (stating that a claimant need not indefinitely subject herself to abusive conduct). Moreover, whether an employer’s conduct is abusive is a question of fact, and the majority acknowledges that the “Board credited Claimant’s testimony that she was ‘verbally abused’ by [Employer].”

Accordingly, I would affirm.

consumer - RESPA - perpetrator of Ponzi scheme is not a "loan servicer"

Jones v. ABN AMRO Mortgage Group, et al. - 3d Circuit - May 25, 2010


http://www.ca3.uscourts.gov/opinarch/082353p.pdf

Douglas and Andrea Jones (the “Joneses”) filed suit against, inter alia, Appellees SunTrust Mortgage, Inc. and Countrywide Home Loans, Inc., who were the “lenders” that provided mortgage loans to the Joneses. The Joneses asserted claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. At the heart of the issue before us is a mortgage loan-servicing Ponzi scheme. Of particular interest is whether the perpetrator of the Ponzi scheme can be considered a loan “servicer” under RESPA. The District Court dismissed the Joneses’ Complaint. We will affirm.

abuse - expungement - founded report - no right to appeal hearing

D.D. v. DPW - Cmwlth Court - May 21, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/1454CD09_5-21-10.pdf


There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.


Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).


A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.

UC - voluntary quit - abusive conduct, cursing by employer

Karpowich v. UCBR - Cmwlth Court - May 19, 2010 - unreported memorandum opinion


http://www.pacourts.us/OpPosting/Cwealth/out/2242CD09_5-19-10.pdf


Grant of benefits upheld for claimant whose employer cursed at him on numerous occasions.


An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).

UC - admission into ARD not willful misconduct

Bruce v. UCBR - Cmwlth Court - May 19, 2010 (2-1)

http://www.pacourts.us/OpPosting/Cwealth/out/2227CD09_8-9-10.pdf

Claimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program.



In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.


But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."


Dissent
The dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.


Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.

custody - jurisdiction - continuing - UCCJEA - significant connection

Rennie v. Rosenthal - Superior Court - May 17, 2010


http://www.pacourts.us/OpPosting/Superior/out/A31007_09.pdf



Pennsylvania courts, which entered the initial custody order, continue to have jurisdiction under 23 Pa.C.S.A. § 5422(a)(1) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), even where mother and child have lived primarily in another state for the past 6 years, since Pennsylvania continues to have a "significant connection" with the child or one parent or person acting as a parent.


Under the plain meaning of section 5422(a)(1), a court that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent have a significant connection with Pennsylvania and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available here. The use of the term “and” requires that exclusive jurisdiction continues in Pennsylvania until both a significant connection to Pennsylvania and the requisite substantial evidence are lacking. In other words, Pennsylvania will retain jurisdiction as long as a significant connection with Pennsylvania exists or substantial evidence is present.


Based upon the evidence, Child and Father have a significant connection to Pennsylvania, which thus retains jurisdiction over the case. As indicated in clear language in the statute, a “significant connection” will be found where one parent resides and exercises parenting time in the state and maintains a meaningful relationship with the child. The statute does not specify that courts must determine that the parent with primary custody of a child has a significant connection with the state to retain jurisdiction. Here, as noted above, the evidence established that Father lives in the Philadelphia area and he and Child have a significant connection to Pennsylvania.

employment - Fair Credit Reporting Act

Smith v. HireRight Solutions, Inc. - ED PA. - May 11, 2010


http://www.paed.uscourts.gov/documents/opinions/10D0473P.pdf (20 pp.)

Defendant's motion to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) denied.

The litigation was initiated as a consumer class action based upon Defendant’s alleged willful violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. (“FCRA”). The action is brought on behalf of the thousands of employment applicants throughout the country who have purportedly been the subject of prejudicial, misleading, and inaccurate background reports performed by Defendant and sold to employers.

According to the facts set forth in the Complaint, Defendant is a consumer reporting agency (“CRA”), which maintains consumer files containing public record information, including the criminal record history of individuals. Defendant sells these consumer files to potential employers – consisting of a customer base of more than 28,000 businesses across the country – wishing to investigate the criminal history of various job applicants. Under the FCRA, Defendant, as a CRA, is required to notify the consumer of the fact that it is reporting public record information and to whom that information is being reported. Defendant must also follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. The Complaint alleges, however, that, as a matter of practice, Defendant neither notifies the consumer contemporaneously of its reporting of adverse public record information, nor does it maintain strict procedures designed to insure that such information is complete, up-to-date, and accurate. Moreover, according to the Complaint, Defendant regularly reports single incidents multiple times so that the consumer’s criminal record history appears much more serious than it actually is. By the time the consumer is made aware of the inaccurate and duplicative reporting, the report has already been sold to the requesting employer and become the basis of an employment decision.

UC - employee v. indpt. contractor

Resource Staffing v. UCBR - Cmwlth. Court - May 13, 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1875CD09_5-13-10.pdf

Claimant held to have been disqualified under 43 P.S. §802(h), which provides that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment.

Claimant is an experienced Microsoft systems engineer and administrator. RSI, an information technology consulting agency, located Claimant’s resume on Monster.com and offered him a six-month contract position. Claimant signed a Contractor Agreement on October 30, 2006, and he worked for Carpenter Technology (the client), at the client’s facility, from November 13, 2006, through September 20, 2007.

Section 4(l)(2)(B) of the Law creates a presumption that an individual working for wages is an employee. Beacon Flag Car Company, Inc. v. UCBR, 910 A.2d 103 (Pa. Cmwlth. 2006). A putative employer has the burden to overcome this presumption by demonstrating that: (1) the individual was free from control or direction in the performance of his work;6 and (2) the individual was customarily engaged in an independently established trade, occupation, profession or business while providing such services.
We agree with RSI that the record does not support the Board’s pertinent findings of fact; to the contrary, the record reflects that RSI did not control or have the authority to control Claimant’s work or manner of work. Claimant himself testified that RSI did not provide him with his daily assignments. Instead, Claimant testified that he was given work each day by a manager employed by the client and that he was supervised by numerous individuals who worked for the client.7 (R.R. at 17a, 25a.) This testimony is consistent with the terms of the Contractor Agreement, which state that Claimant shall have the discretion to control the means and manner of his work and that the evaluation of his performance shall be made by the client.

We conclude that the Board’s analysis distorts the evidence. The evidence of record indicates that RSI exercised the minimal amount of control necessary to ensure the quality of services provided to the client. Therefore, we conclude that the Board’s contrary findings of fact are not supportedby substantial evidence and that RSI satisfied its burden to demonstrate that it did not control Claimant’s work or manner of performance.

The second prong of the independent contractor test focuses on whether a claimant was engaged in an independently established trade. Viktor, Ltd. v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (Pa. 2006). The following factors are relevant in determining if a claimant operated independently: (1) whether the individual was capable of performing the activities in question to anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services. Krum v. UCBR, 689 A.2d 330 (Pa. Cmwlth. 1997).

Claimant was not compelled to look to one employer for the continuation of services; Claimant was permitted to provide services to RSI, the client or other employers. In addition, although the Contractor Agreement included a non-compete clause, this Court has repeatedly held that the inclusion of a non-compete clause, by itself, does not establish an employee and employer relationship. Beacon. Thus, we conclude that the evidence does not support the Board’s determination but, instead, establishes that RSI satisfied its burden to demonstrate that Claimant operated independently.

Because we conclude that Claimant was an independent contractor, we hold that Claimant is ineligible for unemployment benefits pursuant to section 402(h) of the Law. Accordingly, we reverse the decision of the Board.

standing - associations

Energy Conservation Council v. PUC - Cmwlth. Court - May 6, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/51CD09_5-6-10.pdf


An association was held to have standing to challenge a PUC ruling concerning the siting of utility lines.

If a party is not adversely affected in any way by the determination being challenged, the party is not aggrieved and, thereby, has no standing to obtain a judicial resolution of the challenge. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). “[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” Id. at 192, 346 A.2d at 280-81. In order to be aggrieved, a party must have a substantial interest in the subject matter of the litigation, the interest must be direct, and the interest must be immediate. Id. The substantial interest requirement means that “there must be some discernable adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.” Id. at 195, 346 A.2d at 282. A direct interest “means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which [the person] complains.” Id. Finally, the interest must “be ‘immediate’ and ‘not a remote consequence of the judgment.’” Id. at 197, 346 A.2d at 283 (quoting Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 7-8, 173 A.2d 97, 100 (1961)).

An association may have standing as a representative of its members. Tripps Park v. PUC, 415 A.2d 967, 970 (Pa. Cmwlth. 1980). Thus, as long as an organization “has at least one member who has or will suffer a direct, immediate, and substantial injury to an interest as a result of the challenged action[, i.e., is aggrieved, the organization] has standing.” Parents United for Better Schools v. School District of Philadelphia, 646 A.2d 689, 692 (Pa. Cmwlth. 1994) (PUBS). Tripps Park, 415 A.2d at 970.

A review of ECC’s protest and the list of its members clearly reveals that ECC has standing to appeal the PUC’s determination. ECC has at least sixteen members that are located in and around the area in which the facilities, including the potentially 200-foot tall tower will be located. Nine of ECC’s members are located within the proposed rights of way for the facilities. Further, ECC members testified as to the impacts the siting, construction, operation, and maintenance of the facilities would have on them, their properties, their businesses, and their communities. Additionally, ECC members include affected ratepayers. The ECC and its members, some of whom own property within the rights of way or are affected ratepayers, have an interest in the PUC’s determination that is more than just the interest shared by all citizens to prevent the construction of a HV transmission line. Moreover, the harm alleged by the ECC on behalf of its members, including increased rates and decreased property values, is directly caused by the PUC’s approval of the facilities applications.

nursing - license - denial - criminal convictions

Bethea-Tumani v. State Board of Nursing - Cmwlth Court - April 2010

http://www.pacourts.us/OpPosting/Cwealth/out/1547CD09_4-28-10.pdf

In this appeal, Glecina Bethea-Tumani1 (Applicant) petitions for review of a final adjudication and order of the State Board of Nursing (Board), denying her application for a license as a registered nurse by examination under the Professional Nursing Law (Law). In April 1994, Applicant pled guilty to aggravated assault, a felony. In July 2008, she pled guilty to insurance fraud and conspiracy, two misdemeanors. She applied to the Board for a license on or about September 8, 2008. In its final adjudication and order, the Board denied Applicant’s license application based on these convictions. We affirm.

adequate findings -- While we agree with Applicant that the Board could have issued an opinion with more detailed factual findings regarding her asserted remorsefulness and personal accomplishments, we cannot conclude that the Board’s findings and conclusions are so lacking as to not meet the minimal requirements for an adjudication under Section 507 of the Administrative Agency Law. A review of the adjudication reveals that the Board made very specific findings of fact regarding the convictions and the potentially mitigating circumstances surrounding the convictions, as well as findings regarding Applicant’s professional achievements and work history. A review of the adjudication as a whole reveals that the Board merely gave more weight to the convictions than to the mitigating circumstances and Applicant’s statements of remorse and reform when reaching its determination. Under these circumstances, we must conclude that the adjudication is sufficient to allow effective appellate review under Section 507 of the Administrative Agency Law.

remotness of conviction - Applicant further contends that the Board erred in considering her conviction that occurred fourteen years earlier. Under these circumstances, we reject Applicant’s argument that the Board was per se prohibited from considering Applicant’s earlier conviction. Given the circumstances of this case, in particular the very recent conviction, we cannot conclude that the Board erred in considering the earlier conviction. Moreover, we note that even if the Board had erred in considering the earlier conviction, sufficient evidence exists to support the Board’s denial based solely on the recent insurance fraud and conspiracy conviction.

mitigating evidence - A board may give greater weight to the seriousness of a respondent’s criminal convictions than to mitigating evidence. Burnworth v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991). Absent bad faith, fraud, capricious action or flagrant abuse of discretion, a reviewing court will not inquire into the wisdom of an administrative agency’s =discretionary action or into the details or manner of executing that action.

credibility determination based on written transcript is permitted - This Court has held that administrative adjudicators may determine credibility from the reading of a transcript.” Pellizzeri, 856 A.2d at 301. Even Daniels, which we do not concede applies, does not require that credibility determinations be made based on “live” testimony. While credibility determinations based on a witness’ demeanor may have been beneficial in this case, the Board did not err when it simply reviewed the record of the proceedings provided to it.