UC - voluntary quit - late payment of wages

Jacobs v. UCBR – Cmwlth. Court – 12-21-15

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/484CD15_12-21-15.pdf?cb=1

 

Held:  Claimant had good cause to quit his job because of Employer’s failure to pay him in a timely manner, which resulted in his financial hardship and, consequently, caused transportation issues.

 

Where an employee terminates an employment relationship because of the employer’s repeated failure to pay wages in a timely manner and on an established pay day, Pennsylvania’s Wage Payment and Collection Law[5] is implicated. Section 4 of the Wage Payment and Collection Law generally provides:

 

It shall be the duty of every employer to notify his employes at the time of hiring of the time and place of payment and the rate of pay and the amount of any fringe benefits or wage supplements to be paid to the employe . . . or . . . for the benefit of the employe[]. . . .

43 P.S. § 260.4. Moreover, Section 3 of the Wage Payment and Collection Law is absolutely explicit in its statement that: ‘Every employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer.’ 43 P.S. § 260.3. Thus, employees are well within their rights to demand timely payment for work performed. Indeed, payment as agreed for services rendered is the very essence of an employment relationship, such that no employee can be compelled to work without payment.

 

Accordingly:

 

This Court has held that several instances of tardy wage payments resulting in employee protest and refusal by the employer to guarantee timely payment of wages as demanded by the employee can constitute necessitous and compelling cause for that termination.  Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d 594, 597 (Pa. Cmwlth. 1997) (citation omitted).

. . . .

This Court’s opinion in Warwick indicates, without examination of the Wage Payment and Collection Law, that claimants must request a guarantee of adherence to a rigid payment schedule after protesting tardy payments in order to retain eligibility for unemployment compensation. See Warwick, 700 A.2d at 597 (citing Koman v. Unemployment Comp. Bd. of Review, . . . 435 A.2d 277 ([Pa. Cmwlth.] 1981)). Given that the Wage Payment and Collection Law already requires adherence to a rigid payment schedule, we hold that it is sufficient for employees to complain of late payments, so long as the employer is afforded a reasonable opportunity to address the employee’s complaints.  Clearly, failure to make timely payment for services rendered creates a real and substantial pressure upon an employee to terminate employment. Without question, repeat occurrences would cause a reasonable person to terminate employment.

 

Shupp v. Unemployment Comp. Bd. of Review, 18 A.3d 462, 464-65 (Pa. Cmwlth. 2011) (emphasis added).

 

The record evidence in the instant case established that Employer failed to timely pay Claimant for his services. Claimant twice notified Employer and accepted non-payroll checks in an effort to preserve his employment. It was not until Employer notified Claimant that he would have to wait yet another 30 days for his pay that Claimant voluntarily quit. Accordingly, under the specific circumstances of this case, the UCBR erred as a matter of law by concluding that Claimant voluntarily quit his employment without a necessitous and compelling reason.

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consumer - insurance - bad faith denial of claim

Rancosky v. Washington National Insurance Company –Superior Court – December 16, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A19039-15o.pdf?cb=2

 

In the course of holding against an insurance company on a claim by its insured, the court said the following:

 

Insurance bad faith actions are governed by 42 Pa.C.S.A. § 8371, which provides as follows:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

 

The Pennsylvania legislature did not provide a definition of bad faith, as that term is used in section 8371, nor did it set forth the manner in which an

insured must prove bad faith. While our Supreme Court has not yet addressed these issues, this Court has ruled that, to succeed on a bad faith

claim, the insured must present clear and convincing evidence to satisfy a two part test: (1) the insurer did not have a reasonable basis for denying

benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim. Terletsky,

649 A.2d at 688.

 

“There is a requisite level of culpability associated with a finding of bad faith. Merely negligent conduct, however harmful to the

interests of the insured, is recognized by Pennsylvania courts to be categorically below the threshold required for a showing of bad faith.”

Greene, 936 A.2d at 1189. Bad faith claims are fact specific and depend on the conduct of the insurer vis à vis the insured. Condio v. Erie Ins.

Exchange, 899 A.2d 1136, 1143 (Pa. Super. 2006). The fact-finder must consider “all of the evidence available” to determine whether the insurer’s

conduct was “objective and intelligent under the circumstances.” Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164, 1179 (Pa. Super. 2012)

 

A “dishonest purpose” or “motive of self-interest or ill will” is not a third element required for a finding of bad faith. Greene, 936 A.2d at 1191; see

also Nordi v. Keystone Health Plan West Inc., 989 A.2d 376, 385 (Pa.Super. 2010). A “motive of self-interest or ill will” may be considered in

determining the second prong of the test for bad faith, i.e., whether an insurer knowingly or recklessly disregarded its lack of a reasonable basis for

denying a claim. Greene, 936 A.2d at 1190.

 

There is a heightened duty of good faith was imposed on the insurer in a first-party claim because of the special relationship between the insurer and its insured, and the very nature of the insurance contract. See Romano v. Nationwide Mut. Fire Ins. Co., 646 A.2d 1228, 1231 (Pa. Super. 1994) (holding that an insurer must act with the “utmost good faith” toward its insured).

 

Individuals expect that their insurers will treat them fairly

and properly evaluate any claim they may make. A claim must

be evaluated on its merits alone, by examining the particular

situation and the injury for which recovery is sought. An

insurance company may not look to its own economic

considerations, seek to limit its potential liability, and operate in

a fashion designed to “send a message.” Rather, it has a duty to

compensate its insureds for the fair value of their injuries.

Individuals make payments to insurance carriers to be insured in

the event coverage is needed. It is the responsibility of insurers

to treat their insureds fairly and provide just compensation for

covered claims based on the actual damages suffered. Insurers

do a terrible disservice to their insureds when they fail to

evaluate each individual case in terms of the situation presented

and the individual affected.

Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 382 (Pa.

Super. 2002).

 

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disability - remand - ALJ failure to cite/discuss relevant evidence - GAF scores

https://www.paed.uscourts.gov/documents/opinions/15D1023P.pdf

 

Serrano v. Colvin – ED Pa. – December 9, 2015

 

The court upheld that magistrate’s conclusion that the  ALJ’s failure to cite to Serrano’s GAF scores warranted remand.

 

GAF scores assess an individual’s “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Boston v. Chater, No. CIV.A. 94-5781,

1995 WL 708552, at *4 (E.D. Pa. Nov. 28, 1995) (quoting Diagnostic and Statistical Manual ofMental Disorders 32 (4th ed. 1994)). “The GAF scale, designed by the American Psychiatric

Association, ranges from 1 to 100, with a score of 1 being the lowest and 100 being the highest.” Christian v. Comm'r of Soc. Sec., No. CIV.A. 13-584, 2014 WL 4925032, at *3 (W.D. Pa. Sept. 30, 2014) (quoting West v. Astrue, 2010 WL 1659712, at *4 (E.D. Pa. Apr. 26, 2010)). Thougha GAF score alone does not necessarily indicate an impairment, it constitutes “relevant medicalevidence that ‘must be addressed by an ALJ in making a determination regarding a claimant’s disability.’” Packard v. Astrue, No. CIV.A. 11-7323, 2012 WL 4717890, at *2 (E.D. Pa. Oct. 4, 2012) (quoting Colon v. Barnhart, 424 F. Supp.2d 805, 812 (E.D. Pa. 2006)).

 

At step four in the disability analysis, an ALJ determines whether a claimant has the requisite residual functional capacity to perform her past relevant work. In making this decision,

the ALJ must consider all evidence before her and indicate why she accepts or rejects certain evidence. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994). Given this requirement, an

argument in favor of remand based on a failure to discuss GAF scores “will fail if, either: (1) the doctors who issued the GAF scores did not “express any opinions regarding [her] specific limitations,” or (2) if the ALJ provided a clear and satisfactory explanation of the basis uponwhich he dismissed the probative weight of the omitted GAF scores. Packard, No. CIV. A. 11-7323, 2012 WL 4717890 at *3.

 

In her Report, the magistrate judge reviewed the record and concluded that claimant “was assigned a GAF score of 45 on twenty-one separate treatment visits over a period of nearly

two years.” ....The ALJ made reference to only one of the at least twenty-one GAF scores—a GAF score of 50 provided by the agency examiner.  She provided no explanation for her decision to ignore the  others.  The magistrate judge reasoned that, “[t]hough remand may not be necessary where an ALJ fails to discuss one or two GAF scores of 50 or below, the Court finds that there is clear basis for remand where an ALJ ignores twenty-one such scores.”

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civil rights - sec. 1983 - under color of state law - private actor

PRBA Corp. a/k/a Bare Exposure v. HMS Host Toll Roads, Inc. – 3d Cir. – December 10, 2015

 

http://www2.ca3.uscourts.gov/opinarch/151538p.pdf

 

Private company that operates service plazas on New Jersey highways did not act “under color of any statute, ordinance, regulation, custom, or usage, of any State,”  42 U.S.C. § 1983, when it removed brochures belonging to a “gentleman’s club” from the common areas of its service plazas.  “The absence of any direct involvement by the state authorities either in the decision to remove the brochures or in the general, day-to-day operations of the service plazas compels this conclusion.”

 

The touchstone for analysis of all state action claims is Brentwood v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), in which the Supreme Court held that “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 295; see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights)

 

The Brentwood Court also gave additional structure to several tests that lower courts had previously been using to determine whether a private party satisfied the “close nexus” requirement necessary to be considered a state actor. One of these tests is called the “entwinement test,” which asks whether “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and [thus] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Brentwood, 531 U.S. at 298.  This case thus shows that the entwinement test focuses on the overlap or merger of public and private entities as a result of their shared leadership or other attributes that make it hard to separate their public functions from their private ones.

 

The court also relied heavily on

            - Gannett Satellite Information Network, Inc. v. Berger, 894 F.2d 61, 67 (3d Cir. 1990), hodling that the concessionaires that leased property in the Newark Airport and decided not to distribute certain newspapers were simply “private entities pursuing private ends” because there was no “explicit governmental involvement” in the decisions of the concessionaires and thus their conduct “may not fairly be attributed to the Port Authority.” 894 F.2d 61, 67 (3d Cir. 1990), which took no part in the distribution decision.  The analysis focused on evidence of explicit involvement of the governmental authority in the specific action the plaintiffs challenge.

             - Marie v. American Red Cross, elaborating a “high bar necessary for a finding of impermissible entwinement.” 771 F.3d 344 (6th Cir. 2014).   “[M]ere cooperation simply does not rise to the level of merger required for a finding of state action.” Id. at 364. Instead, there must be “pervasive entwinement of public institutions and public officials in [the private entity’s] composition and workings [such that] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Id. (emphasis added).

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default judgment - striking - failure to strictly follow Rule 237.5 - notice of intent to take default

Americhoice Federal Credit Union v. Ross – Superior Court – December 7, 2015

 

Majority                                 http://www.pacourts.us/assets/opinions/Superior/out/J-S63017-15o%20-%201024610755788899.pdf?cb=1

 

Concurrence/dissent            http://www.pacourts.us/assets/opinions/Superior/out/J-S63017-15cds%20-%201024610755788901.pdf?cb=1

 

Default judgment stricken due to Plaintiff’s failure to strictly follow Pa. R.C.P.  237.1(a(2) and 237.5 – Notice of Intent to Take Default Judgment (Important Notice)

 

Plaintiff’s notice said “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE.”  By contrast, the rules require the notice to state “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED O ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE

COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU.”

 

The court held that under Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super. 2013) and and City of Philadelphia v. David J. Lane Adver., Inc., 33 A.3d 674, 679 (Pa. Commw. 2011), the plaintiff had to give “specific reasons” as to what defendant had failed to do and why defendant was in default, rather than just the general statement (“you have failed to take action”) required under the previous rule.  The Commonwealth Court examined the above legislative and judicial history in the context of its holding in Township of Chester v. Steuber, [] 456 A.2d 669 ([Pa. Commw.] 1983) and subsequentamendments to Rule 237.5. Id. at 678–80.   The court held that the amendments to Rule 237.5 “impose an additional notice requirement on a [AmeriChoice] who wishes to obtain a judgment by default ... the [AmeriChoice] must now include in the [Ten]–Day Notice specific reasons why the defendant is in default.” David J. Lane Advertising, 33 A.3d at 679 (emphasis in original).Oswald, 80 A.3d at 795-96.

 

The law is clear that generally, default judgments are disfavored. Attix v. Lehman, 925 A.2d 864, 866 (Pa. Super. 2007).  AmeriChoice failed to provide any indication on the face of the Notice of precisely why default judgment would be entered against Homeowners. This constitutes a failure to comply with the format contained in Pa.R.C.P. 237.5, and thus constitutes a violation of Pa.R.C.P. 237.1(a)(2). ... “It is well[]established that a record which reflects a failure to comply with Pa.R.C.P. 237.1 is facially defective and cannot support a default judgment.” Oswald, 80 A.3d at 796 (citationomitted). “Furthermore, since the prothonotary lacks authority to enter judgment under these circumstances, the default judgment would be void ab initio.” Id. at 797 (citation and italicization omitted). A default judgment that is void ab initio “must be stricken without regard to the passage of time.”

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UC - voluntary quit - discharge not imminent

Line v. UCBR – Cmwlth. Court – November 25, 2015 – unreported* memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/731CD15_11-25-15.pdf?cb=1

 

Benefits denied since claimant quit without discharge being imminent, only a future possibility if he did not perform his job properly.

 

Where a claimant resigns in order to avoid an imminent discharge, the Board may properly treat the claimant’s separation from employment as a discharge and analyze the claimant’s eligibility for unemployment benefits under section 402(e) of the Law, 43 P.S. §802(e). Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994).

 

However, a claimant who resigns under circumstances indicating only a possibility of a discharge is considered to have voluntarily resigned. Id. Whether a claimant was discharged or voluntarily resigned is a question of law to be determined based on the facts found by the Board. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). The claimant bears the burden of proving that the separation was a discharge and not a voluntary resignation. Id.

In this case, the facts as found by the Board are similar to those before the Court in Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), and Rizzitano v. Unemployment Compensation Board of Review, 377 A.2d 1060 (Pa. Cmwlth. 1977).

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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admin. law - findings and reasons

State Police v. Brandon – Cmwlth. Court – November 24, 2015 – unreported* memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/841CD15_11-24-15.pdf?cb=1

 

The court vacated an ALJ decision concerning respondent’s right to possess a firearm, because the decision did not contain proper findings and reasons, as required by the Administrative Agency Law, 2 Pa. C.S. 507, which states that  “All adjudications of a Commonwealth agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.” 2 Pa. C.S. §507. 

 

Section 507 of the AAL requires that adjudications contain findings of fact that are “sufficiently specific to enable [a reviewing] court … to pass upon  questions of law.” In re: Petition for Formation of Independent Sch. Dist., 962 A.2d 24, 28 (Pa. Cmwlth. 2008) (quoting Henderson v. Office of Budget, 537 A.2d 85, 86 (Pa. Cmwlth. 1988)). Further, adjudications stating only that a party “failed to present evidence” to meet its burden do not comply with Section 507 of the AAL.

 

Where a decision contains no specific findings regarding the evidence, but rather merely set forth conclusory findings, a remand is necessary for adjudication that complies with 2 Pa. C.S. §507).  Independent Sch. Dist., supra.; see also Turner v. Civil Serv. Comm’n, 462 A.2d 306 (Pa. Cmwlth. 1983) (where commission’s decision merely concluded that police officer’s dismissal was for just cause without any findings as to which testimony was found credible, which charges against the officer were substantiated by the evidence, or what facts constituted just cause for dismissal from employment, remand was necessary for findings of fact consistent with Section 555 of the Local Agency Law, 2 Pa. C.S. §555), which is similar to 2 Pa. C.S. 507.

 

 

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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