UC - hearings - claimant representative - Harkness

Powell v. UCBR – Cmwlth. Court – Sept. 11, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1704CD14_9-17-15.pdf?cb=1

 

Claimant showed up at successive continued hearings, represented by one then another attorney who was under suspension by the Supreme Court. 

 

Analyzing the caseunder Disciplinary Rule 201(a), the Board found that the attorneys were prohibited from representing claimant and affirmed the referee decision that claimant had committed willful misconduct.

 

The Court reversed holding that the questions was not whether representing a party before an unemployment compensation referee constitutes the practice of law, but rather, whether the Board acted properly when it prohibited the suspended attorneys from representing Claimant at the hearing.

 

Pursuant to Section 214 of the UC Law, Claimant had a statutory right to be represented by his designee at an unemployment compensation hearing.  The Supreme Court has held that the representative need not be an attorney, because representation before an unemployment referee does not constitute the practice of law. See Harkness v. UCBR, 920 A.2d 162 (Pa. 2007).

 

Rather than applying Section 214 of the Law and the Supreme Court’s decision in Harkness, the Board analyzed the Disciplinary Rules in considering if suspended attorneys could act as a claimant’s representative during a referee hearing, rejecting the argument that the suspended attorneys were acting as representatives, not as attorneys, for his hearings. 

 

The court held that only the Supreme Court and Disciplinary Board, have the power to interpret and enforce the Disciplinary Rules—not the Board.  It also noted that the Board, in ignoring its own rules and applying the Disciplinary Rules, ultimately sanctioned Claimant for the attorneys’ potential violation of the Disciplinary Rules by denying Claimant representation at the second hearing.  

 

The Board,  therefore, erred when it interpreted the Disciplinary Rules to prevent the two suspended attorneys from representing Claimant, and this matter should be remanded to the Board to allow Claimant to have a hearing with representation of his choice.

default judgment - opening - petition filed within 10 days

Easton Condominium Assn v. Nash – Cmwlth. Court – September 18, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2015CD14_9-18-15.pdf?cb=1

 

The trial court erred in denying defendant’s petition to open the default judgment, which was filed within 10 days of entry of the judgment and alleged a meritorious defense.   Defendant was not required to assert any reasonable excuse for the inactivity or delay under Pa. R.C.P. No. 237.3(b), because her petition was filed within 10 days of the entry of judgment and the trial court found that she alleged a meritorious defense.

 

Pa. R.C.P. No. 237.3(b) states, in relevant part, that “[i]f the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious … defense.”  Boatin v. Miller, 955 A.2d 424 (Pa. Super. 2008).

 

UC - voluntary quit - demotion

RIO Supply Inc. v. UCBR – Cmwlth. Court – September 18, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1939CD14_9-18-15.pdf?cb=1

 

Following Allegheny Vally School v. UCBR, 697 A.2d 243 (Pa. 1997) and Diversified Care Management v. UCBR, 885 A.2d 130 (Pa. Cmwlth. 2005) , the Court held that

 

- an unjustified demotion is a necessitous and compelling reason to quit a job

- hearsay evidence alone is not competent evidence to justify a demotion

- “substantial change” analysis does not apply to a demotion case

- requiring the employer to present evidence that the demotion was justified does not improperly shift the burden of proof

 

Generally, necessitous and compelling cause exists when there is real and substantial pressure to terminate one’s employment that would compel a reasonable person to do so under similar circumstances, Wert, and a claimant must show that he acted with ordinary common sense in quitting, made a reasonable effort to preserve his employment, and had no real choice but to leave his employment. Cowls v. UCBR, 427 A.2d 722, 723 (Pa. Cmwlth. 1981).  However, the Supreme Court made clear in Allegheny Valley School that a determination of necessitous and compelling cause in the case of a voluntary termination after a demotion does not consider the general factors set forth above but focuses solely on the justification for the demotion.

 

In light of this precedent, it is clear that a demotion premised on an employee’s inability to perform his job responsibilities is justified and does not constitute a necessitous and compelling reason to quit.  Conversely, a claimant will have necessitous and compelling reasons to voluntarily terminate employment if the demotion was unjustified.

 

A claimant bears the burden to demonstrate that his voluntary termination of employment was based upon a necessitous and compelling reason. Wise v. UCBR, 111 A.3d 1256, 1264 (Pa. Cmwlth. 2015). The Board specifically referenced this burden in its opinion. However, as the Board also noted, a claimant meets this burden in demotion cases by establishing that the demotion was not justified. Allegheny Valley School.

 

In the present case, Claimant testified that there was no reason, including any disciplinary reason, for his demotion. Employer sought to rebut Claimant’s testimony by offering testimony that Claimant’s demotion was premised on a conversation with a driver who was resigning.  This was the only evidence submitted by Employer relating to Claimant’s demotion.   The failed to present this driver as a witness or otherwise attempt to corroborate this statement by a third party. As a result, the Board characterized this testimony as hearsay.

 

The law is well settled that hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record. Stugart v. Unemployment Compensation Board of Review, 85 A.3d 606, 608 (Pa. Cmwlth. 2014) (citing Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). However, a finding of fact based solely upon hearsay will not stand. Borough of Grove City v. Unemployment Compensation Board of Review, 928 A.2d 371, 374 (Pa. Cmwlth. 2007).