UC - vol. quit - resignation - revocation of

Bier v. UCBR – Cmwlth. Court – Apriol 26, 2013 – unpublished memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1908CD12_4-26-13.pdf?cb=1

This Court has held that “[a] claimant who stated that he quit and walked off the job is not considered an employee thereafter.”  Spadaro v. UCBR, 850 A.2d 855, 859 (Pa. Cmwlth. 2004).  We conclude, based on the totality of the circumstances as described above, that Claimant voluntarily quit his employment effective on May 14, 2012 and was no longer an employee thereafter. 

While there may be some circumstances where an employee may rescind a resignation after the fact, those circumstances are not present here. In Spadaro, we noted that “[a]n employee who revokes his resignation before the ‘effective date’ of his resignation and before the employer took steps to replace him is entitled to benefits.” Id. at 859. Claimant did not resign with an “effective date”; he quit, effective immediately, when he essentially told Employer that he was quitting, got up, left the room, and did not report to work thereafter. Accordingly, Claimant’s actions after May 14, 2012 do not alter his ineligibility for UC benefits under these circumstances.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

custody - appeal - discussion of statutory factors by trial court prior to appeal deadline

C.B. v. J.B. – Superior Court – Apriol 22, 2013

http://www.pacourts.us/assets/opinions/Superior/out/a24016_12.pdf?cb=1

In this appeal, we are called upon squarely to determine the point in time at which a trial court must specify the reasons for its decision in a child custody case. We address this question under the “new” Child Custody Act (“the Act”), which our General Assembly enacted in November 2010, and which took effect in January 2011. In this case, C.B. appeals the custody order entered on October 24, 2011. That order awarded primary physical custody of two childrento their paternal uncle,from whom appellant Aunt is separated.

To decide this appeal, we must address the timing of the trial court’s application of the sixteen custody factors delineated in the Act. We hold today that the Act requires a trial court to address each of these factors prior to the deadline by which a litigant must file a notice of  appeal, and preferably at the time the custody order is issued or shortly thereafter. We apply this holding prospectively, as the trial court here was not bound to anticipate this construction of the Act.

 

contracts - duty of good faith and fair dealing

MYSERVICESFORCE v. American Home Shield – ED Pa. – April 24, 2013

http://www.paed.uscourts.gov/documents/opinions/13D0358P.pdf

 “Courts have defined the duty of good faith as [h]onesty in fact in the conduct or transaction concerned, adopting the definition set forth in Section 1201 of the Uniform Commercial Code, 13 Pa.C.S. 1201.”3 Southeastern Pennsylvania Transp. Auth. v. Holmes, 835 A.2d 851, 858 (Pa. Commw. Ct. 2003) (citing Creeger Brick Building Supply Inc. v. Mid-State Bank Trust Co., 560 A.2d 151, 153 (Pa. Super. Ct. 1989)); see also Cavanaugh v. Avalon Golf Props., LLC., No. E2010–00046–COA–R3–CV, 2011 WL 662961, at *8 (Tenn. Ct. App. Feb. 24, 2011) (same).

Courts have further recognized that, while “‘a complete catalogue of types of bad faith is impossible,’” bad faith may include: “‘evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.’” Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. Ct. 2005) (quoting Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992)); see also Sanders v. Breath of Life Christian Church, Inc., No. W2010–01801–COA–R3–CV, 2012 WL 114279, at *21 (Tenn. Ct. App. Jan. 13, 2012) (“Based on the duty of good faith, this Court has recognized that each party to a contract is ‘under an implied obligation to restrain from doing any act that would delay or prevent the other party’s performance of the contract’ and that ‘[e]ach party has the right to proceed free of hindrance by the other party.’” (quoting ACG, Inc. v. Southeast Elevator, Inc., 912 S.W.2d 163, 168 (Tenn. Ct. App. 1995)). Nonetheless, “‘the common law duty of good faith does not extend beyond the agreed upon terms of the contract and the reasonable contractual expectations of the parties.’” Dick Broad. Co. v. Oak Ridge FM, Inc., ___ S.W.3d ___, 2013 WL 175491, at *9 (Tenn. 2013) (quoting Wallace v. Nat’l Bank of Commerce, 938 S.W.2d 684, 687 (Tenn. 1996)).

 
Consequently, “‘[t]he implied obligation of good faith and fair dealing does not . . . create new contractual rights or obligations, nor can it be used to circumvent or alter the specific terms of the parties’ agreement.’” Id. (alterations in original) (quoting Lamar Adver. Co. v. By-Pass Partners, 313 S.W.3d 779, 791 (Tenn. Ct. App. 2009). See also John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 706-07 (Pa. Super. Ct. 2003) (stating that, since the “‘obligation of good faith is tied specifically to and is not separate from the [express] duties a contract imposes on the parties,’ it cannot imply a term not explicitly contemplated by the contract” (alteration in original) (quoting Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 434 n.11 (Pa. 2001))).

custody - elimination of parenting coordination - Rule 1915.11-1

Order - http://www.pacourts.us/assets/opinions/Supreme/out/577civ.pdf?cb=1

http://www.pacourts.us/assets/opinions/Supreme/out/577civ-attach.pdf?cb=1

Rule 1915.11-1. Elimination of Parenting Coordination.

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not

appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting

coordinator shall be deemed vacated on the date this rule becomes effective. Local rules and administrative orders authorizing the appointment of parenting

coordinators also shall be deemed vacated on the date this rule becomes effective.

UC - voluntary quit - religion

Mathis v. UCBR – Cmwlth. Court – April 9, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/1435CD12_4-9-13.pdf

Worker quit without good cause, when he left employment because employer insisted that he wear an ID badge, which on the reverse side had the statement This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord. Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan

Claimant was aware at the time he was hired that he was required to wear the ID badge containing the mission statement as part of his uniform, and voiced no objection to it during his 21-month employment period, until his last day of work. The Board stated that Employer did not change the terms and conditions of Claimant’s employment, nor did he require Claimant to do anything in violation of his religious beliefs.

 The company handbook contained a statement “the company was dedicated to the Lord. After several years of the Lord providing for him, Dave wanted to give back to the Lord in some way. As an owner, he wanted to be able to help those who couldn’t afford a system. As an employer, he wanted to be able to give someone a second chance with a career at this company. Therefore, this company is not only a business, it is a ministry. It is set on standards that are higher than Dave’s own. His goal is to run this company in a way most pleasing to the Lord. This includes treating employees and customers as he would want to be treated.”  

In Thomas v. Review Board of the Indiana Employment Security Division, et al., 450 U.S. 707 (1981), the United States Supreme Court held that the State of Indiana’s denial of unemployment compensation violated a claimant’s first amendment right to free exercise of religion, where the claimant, a Jehovah’s Witness, quit his job after he was transferred to a department that fabricated turrets for military tanks. In Thomas, the Supreme Court noted that the claimant’s termination flowed from the fact that the employment, once acceptable, became religiously objectionable because of changed conditions. 450 U.S. at 718. The Supreme Court stated “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior or to violate his beliefs, a burden upon religion exists.” 450 U.S. at 717-718.

Here, there is no evidence of changed conditions; Claimant was required to wear a badge containing the mission statement from the beginning of his employment, approximately one year and nine months prior, but did not feel compelled to cover it or voice any objections until January 24, 2012.

 

In Monroe v. Unemployment Compensation Board of Review, 535 A.2d 1222, 1224 (Pa. Cmwlth. 1988), the Court held that an actual conflict between a claimant’s sincerely held religious beliefs and his employment conditions may constitute cause of a necessitous and compelling nature for voluntary terminating employment. In Monroe, the Court remanded to the Board, for findings as to whether the claimant’s beliefs were sincerely held and religious in nature, and if so, whether or not there was an actual conflict between those be iefs and the employer’s job requirements. 535 A.2d at 1225-26.  

 

Sub judice, we find that Claimant did not meet his burden because he offered no evidence as to any sincerely held religious beliefs, nor did he attempt to describe any actual conflict between a religious belief and Employer’s requirement that the identification badge bearing the mission statement be worn. Owner testified at the initial hearing that his staff includes non-believers and members of other faiths besides his own; he stated that the mission statement was not a religious statement but rather a statement that sets forth certain values or basic rules for treating people.

Claimant argues before this Court that he was repeatedly harassed for his religious beliefs, but the hearing transcripts are devoid of such evidence, and the Board did not find that any such harassment occurred. Claimant admitted that he never spoke to anyone in management about his objections to the mission statement, and presented no evidence that he had ever requested an accommodation.

UC - willful misconduct - offensive language - labor dispute - NLRA

Arndt v. UCBR – Cmwlth. Court – March 15, 2013

http://www.pacourts.us/assets/opinions/Commonwealth/out/702CD12_3-15-13.pdf

Offensive comments made on picket line during labor dispute held to not be willful misconduct.  Labor dispture language is often vituperative, abuse, and inexact.  Even comments that may seem threatening are protected under the National Labor Relations Act, 29 USC sec. 151 et seq., because picket line rehtoric is not to be construed literally.

 

Welfare - drug-testing - 11th Cir. 2013

Lebron v.   Florida Dept. of Children and Families -  11th Cir. - February 26, 2013

http://www.ca11.uscourts.gov/opinions/ops/201115258.pdf

11th Circuit rejected drug testing as a condition of receiving cash assistance in Florida.

State failed to show "special needs" for exception from 4^th amendment requirements.

Ordinarily, to be reasonable, a search must be based on individualized suspicion of wrongdoing. . . . "[The Fourth Amendment’s] restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion."). In most cases, this standard is met only when a search "is accomplished pursuant to a judicial warrant issued upon probable cause." Skinner, 489 U.S. at 619.

However, the Supreme Court has upheld as reasonable searches without a showing of individualized suspicion in certain very limited and exceptional circumstances. See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment) (explaining that a court may substitute its own reasonableness balancing for that of the Fourth Amendment’s warrant and probable cause requirement only in those "exceptional circumstances" where special needs have been established). But to establish these limited and exceptional circumstances that justify the suspension of Fourth Amendment protections, the Supreme Court has required the government to make a threshold 

Not only must the government identify the special needs that make the warrant and probable-cause requirement impracticable but it must establish that those special needs are "substantial." See Chandler, 520 U.S at 318 ("Our precedents establish that the proffered special need for drug testing must be substantial."). Only if the government is able to make a showing of substantial special needs will the court thereafter "undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," to determine the reasonableness of the search. Id. at 314; see also T.L.O., 469 U.S. at 351

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is "no."
 

Consumer Protection - deceptive conduct - ascertainable loss

Grimes v. Enterprise Leasing – superior Court – March 19, 2013

http://www.pacourts.us/assets/opinions/Superior/out/a33037_12.pdf#search=%22enterpRISE

Deceptive conduct v. misrepresenatation

A plaintiff need not specifically allege a misrepresentation. As this Court recently observed, any deceptive conduct will suffice under the UTPCPL’s catchall provision. See Bennett v. A.T.

Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa. Super. 2012).. Here, Grimes alleged that Enterprise engaged in deceptive conduct “[b]y intentionally and artificially inflating the costs it incurred under the rental car contracts, and by concealing from [Grimes] the true costs it incurred ….” …. Then, in attempting to collect the money it believed it was owed, Enterprise “threaten[ed] and plann[ed] to contact [Grimes’] insurer and credit card issuer ….” . In our view, these allegations plainly meet the UTPCPL catchall provision’s requirement of “fraudulent or deceptive conduct  which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi); see also Commonwealth by Fisher v. Cole, 709 A.2d 994, 997 (Pa. Cmwlth. 1998) (holding a physician’s efforts to collect debts from former patients that were barred by the statute of limitations constituted a violation of the UTPCPL), appeal denied, 736 A.2d 606 (Pa. 1999). Therefore, we conclude Grimes has pled facts sufficient to state a cause of action for deceptive conduct under the UTPCPL catchall provision.

Pleading "justifiable reliance" not required
The trial court also noted that “[Grimes] can[not] establish justifiable reliance” in furtherance of her UTPCPL claim.   The claim under the catchall provision of the UTPCPL alleges that Enterprise’s conduct was both fraudulent and deceptive. . As this Court recently held in Bennett, when a plaintiff alleges a claim under the UTPCPL catchall provision under the theory of deceptive conduct, the plaintiff need not prove the elements of common law fraud, including “induc[ment of] justifiable reliance ….” Bennett, supra at 152 n.5, 154-155. Therefore, to the extent that Grimes alleges Enterprise’s conduct was deceptive, as opposed to fraudulent, she need not allege justifiable reliance.

Ascertainable loss

Plaintiff averred that she incurred costs and fees associated with asserting her rights and protecting herself against Enterprise’s alleged deceptive trade practices. This Court has held that in determining whether there has been an “[a]scertainable loss [, it] must be established from the factual circumstances surrounding each case ….” Agoliori v. Metro. Life Ins. Co., 879 A.2d 315, 320 (Pa. Super. 2005). We further observe the UTPCPL has a deterrent effect. This is relevant when determining whether there is an ascertainable loss in each case. Id. On

this issue, we find the analysis set forth in Agoliori and Jarzyna v. Home Properties, L.P., 763 F. Supp. 2d 742 (E.D. Pa. 2011), to be dispositive.  Grimes alleges the same loss as the plaintiff in Jarzyna. Plaintiff here alleges that she has incurred costs and fees associated with asserting her rights and preventing Enterprise from collecting its debt. 

UC - willful misconduct - job application - omitting criminal record history

Moore v. UCBR – Cmwlth – Court – April 8, 2013 – unreported memorandum decision

 http://www.pacourts.us/assets/opinions/Commonwealth/out/209CD12_4-8-13.pdf

Claimant’s action of omitting the details of her lengthy criminal history, despite Employer’s emphasis of the importance of honesty on her job application, was material to Claimant’s employment, we affirm the Board’s Order.  When filling out her employment application, Claimant indicated that she had a criminal record, but listed only one conviction for conspiracy. In fact, Claimant’s six-page criminal history included numerous convictions, including forgery and identity theft. After performing a criminal background check that revealed numerous convictions, Employer discharged Claimant on September 2, 2011

This Court has consistently held that “[UC] benefits are properly denied when a claimant’s discharge stems from a false or incomplete statement on an employment-related application document if the misrepresentation is knowing and material to the employee’s qualifications for the job at issue.” Sill-Hopkins v. Commonwealth, 563 A.2d 1288, 1290 (Pa. Cmwlth. 1989) (holding that claimant’s misrepresentation regarding her availability to sell securities was material because a “significant nexus” existed between the misrepresentation and the ability to perform the job at issue). The materiality of a misrepresentation is determined based on “the factual matrix present in each case.” Id. (citing Albater v. Unemployment Compensation Board of Review, 423 A.2d 9, 11 (Pa. Cmwlth. 1980)).  “We must look at the circumstances surrounding each case in order to determine whether information concealed from the employer is material to the employment.” Albater, 423 A.2d at 11. Thus, this Court looked both to the nature of the job at issue and also to the nature of the criminal record concealed.

In this case, it appears that Claimant’s position was not one requiring a great deal of trust or an unblemished criminal record.  Employer’s witness credibly testified that Employer would have hired Claimant despite her criminal record. .. However, the information Claimant concealed was not merely an arrest, but a lengthy history of convictions for crimes involving dishonesty, such as forgery and identity theft. Moreover, at issue in this case is not merely Claimant’s criminal history, but her active concealment of this history despite Employer’s instruction to Claimant that it was important that she be honest on her application.

Dishonesty in connection with one’s employment constitutes a disregard of expected standards of behavior where the employee’s actions are affirmatively deceptive. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 256-57 (Pa. Cmwlth. 2004). Contrary to Claimant’s arguments, Claimant “was well aware of the importance of accuracy” and truthfulness to Employer. Simonds v. Unemployment Compensation Board of Review, 535 A.2d 742, 744 (Pa. Cmwlth. 1988). Employer’s witness testified, “I tell everyone, just be truthful, okay, just be truthful on your application.”

In Claimant’s testimony, she stated, “I knew that when you typed in my name, everything was going to come up.” (Hr’g Tr. at 11 (emphasis added).) Nonetheless, Claimant deliberately omitted5 the details of her criminal history, despite knowing that Employer intended to verify the truthfulness of Claimant’s application. Employer may not have cared about Claimant’s past criminal history when making its employment decision, which is consistent with the “deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.” Unemployment Compensation Board of Review v. Dixon, 365 A.2d 668, 669 (Pa. Cmwlth. 1976). However, Employer emphasized the importance of truthfulness during the application process to its applicants. Given the nature and length of Claimant’s criminal history and her active concealment thereof, despite Employer’s emphasis regarding the importance of honesty on the job application, we hold that the Board did not err in finding that Claimant’s deception was material to her employment.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

 

 

 

Relief from judgment of non pros - inactivity - Rule 3051

In Re: Order Amending Rule 3051 of the Pennsylvania Rules of Civil Procedure, No. 574 Civil Procedural Rules Docket

rule - http://www.pacourts.us/assets/opinions/Supreme/out/574civ.attach.pdf

explanatory comment -  http://www.pacourts.us/assets/opinions/Supreme/out/574civ-rpt.pdf

Explanatory Comment

The Supreme Court of Pennsylvania has amended Rule 3051 governing relief from a judgment of non pros to clarify the requirements for opening a judgment of non

pros entered for inactivity. In Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa. Super. 2011), the Superior Court of Pennsylvania ruled that under the current language of Rule

3051(b) it was compelled to conclude that a plaintiff is not entitled to relief from a judgment of non pros for inactivity without a showing that there was a reasonable explanation or legitimate excuse for the inactivity. Under this interpretation of Rule 3051(b), a judgment of non pros for inactivity cannot be opened even if the record did not establish actual prejudice unless the plaintiff could also show a reasonable explanation or legitimate excuse for the delay.

 Thus, while the defendant was required to show that the delay caused actual prejudice in order to obtain a judgment of non pros for inactivity, the plaintiff who cannot show a reasonable excuse for the delay may not challenge the entry of the judgment of non pros on the ground that the record failed to establish actual prejudice.

 New subdivision (c) is intended to alter the ruling in Madrid by providing for the opening of a judgment of non pros dismissing a case for inactivity upon a showing that the defendant did not meet each of the three requirements for the entry of a judgment of non pros.

 

By the Civil Procedural

Rules Committee

Diane W. Perer

Chair