employment - professional license - past criminal convictions - no relation to profession

Haveman and Spillane v. State Board of Cosmetology – Cmwlth. Court – 12-9-19 – unreported memorandum opinion**

Held: Petitioners have standing to challenge of the good-moral-character requirement of sec. 5 of the Beauty Culture Law.  Their claims are adequately developed and are ripe for consideration. Because Petitioners seek declaratory and injunctive relief on a facial constitutional challenge and are not appealing the Board’s denial of their license applications, the claims are not barred by a failure to exhaust administrative remedies, collateral estoppel, or res judicata and the Petition is not untimely. Finally, Petitioners seek declaratory relief and not damages; thus, their claims are not barred by the two-year statute of limitations. 

Petitioners had prior criminal convictions which, they say, involve conduct unrelated to the cosmetology profession. Petitioners allege a violation of their state substantive due process rights under article I, section 1 of the Pennsylvania Constitution,4 which protects Petitioners’ rights to pursue their chosen occupations free from “arbitrary and irrational legislation.” 

Petitioners assert that the good moral character requirement is facially unconstitutional under article I, section 1 because it lacks a substantial relationship to a legitimate government interest and is unduly oppressive. Petitioners also allege that the good moral character requirement is facially unconstitutional under Pennsylvania’s equal protection guarantee. 

Because Petitioners were treated differently from similarly situated individuals, such as prospective barber licensees, due to the good moral character requirement, Petitioners aver that the requirement is unduly oppressive. Petitioners assert that the good moral character requirement has no substantial or rational relationship to a legitimate government interest to justify this different treatment between similar individuals. 

+++++++++

**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

custody - medical marijuana

H.R. and C.A.R. v. C.P. and J.M. – Pa. Superior – reported, precedential – December 18, 2019

http://www.pacourts.us/assets/opinions/Superior/out/J-S54013-19o%20-%2010426343990129499.pdf?cb=1

Held:  The Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use, whether medical or recreational, on a parent’s ability to care for his or her child. Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly reaffirms § 5328(a) as the controlling mechanism for determining a child’s best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.”). 

That statutory framework explicitly requires the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental health and physical conditions. Thus, rather than requiring the court to ignore Father’s marijuana use, the Medical Marijuana Act obligated the trial court to contemplate Father’s physical condition, i.e. the nerve pain he complains of in his right wrist, and his reliance upon medication to subdue that pain. 

By way of comparison, OxyContin®, Vicodin®, codeine, and morphine are legal substances when prescribed by a physician; however, it is beyond cavil that, prior to making a custody determination, § 5328(a) (14) and (15) mandates that a trial court consider how a parent’s legal use of any of these substances impacts his or her child’s best interest. That is precisely the analysis that the trial court performed in the case at bar. 

child abuse - expungement - substantial pain - duration of bruise

J.S v. Departmnt of Human Services – Cmwlth. Court – reported, precedential – November 15, 2019

The ALJ’s determinations that Father disregarded a substantial and unjustifiable risk and caused Child substantial pain are both inconsistent with case law and unsupported by the record.  P.R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002)11; W.S. v. Department of Public Welfare, 882 A.2d 541 (Pa. Cmwlth. 2005); Allegheny County Office of Children, Youth & Families v. Department of Human Services, 202 A.3d 155 (Pa. Cmwlth. 2018). 

“Without substantial proof” that Child’s pain “was more than the regrettable result of corporal punishment,” we will not rely on such result “to presuppose the element of unjustifiable risk” that would support a finding of criminal negligence. P.R., 801 A.2d at 487.  To the extent the ALJ assumed a correlation between the duration of a bruise and a degree of pain, the ALJ erred. 

Hydrojet Services v. Reading Area Water Authority – Cmwlth. Court – November 14, 2019 – reported precedential opinion

The court affirmed a trial court ruling in favor of the enforcement of a settlement agreement concerning a large past-due water bill, relying primarily on Mastroni-Mucker v. Allstate Insurance Co., 976 A.2d 510 (Pa. Super. 2009), which held that the verbal agreement reached by the parties constituted a binding agreement and any delay in executing a written agreement memorializing the agreed- upon terms does not defeat that agreement

From the opinion:

The law of this Commonwealth establishes that an agreement to settle legal disputes between parties is favored. Compu Forms Control Inc. v. Altus Group Inc., 574 A.2d 618, 624 (Pa. Super. 1990). There is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant. Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 946 (Pa. Super. 2004). If courts were called on to re-evaluate settlement agreements, the judicial policies favoring settlements would be deemed useless. Greentree Cinemas Inc. v. Hakim, 432 A.2d 1039, 1041 (Pa. Super. 1981). 

Settlement agreements are enforced according to principles of contract law. Pulcinello v. Consolidated Rail Corp., 784 A.2d 122, 124, (Pa. Super. 2001), appeal denied, 796 A.2d 984 (Pa. 2002). “There is an offer (the settlement figure), acceptance, and consideration (in exchange for the plaintiff terminating his lawsuit, the defendant will pay the plaintiff the agreed upon sum).” Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1349 (Pa. 1990), cert. denied, 502 U.S. 867 (1991). 

Where a settlement agreement contains all of the requisites for a valid contract, a court must enforce the terms of the agreement. McDonnell v. Ford Motor Co., 643 A.2d 1102, 1105 (Pa. Super.), appeal denied, 652 A.2d 1324 (Pa. 1994). This is true even if the terms of the agreement are not yet formalized in writing. Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999); see Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133, 147 (Pa. Super. 2006) (stating “an agreement is binding if the parties come to a meeting of the minds on all essential terms, even if they expect the agreement to be reduced to writing but that formality does not take place.”). 

Pursuant to well-settled Pennsylvania law, oral agreements to settle are enforceable without a writing. Pulcinello, (citing Kazanjian v. New England Petroleum Corp., 480 A.2d 1153, 1157 (Pa. Super. 1984)). An offeree’s power to accept is terminated by (1) a counter-offer by the offeree; (2) a lapse of time; (3) a revocation by the offeror; or (4) death or incapacity of either party. See First Home Savings Bank, FSB v. Nernberg, 648 A.2d 9, 15 (Pa. Super. 1994) (citing Restatement (Second) of Contracts §36 ([Am. Law Inst.] 1981)), appeal denied, 657 A.2d 491 (Pa. 1995). However, “[o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such.” Restatement (Second) of Contracts §42, Comment c. ([Am. Law Inst.] 1981). 

Mastroni-Mucker, 976 A.2d at 518.

Where a settlement agreement contains all of the requirements for a valid contract, a court must enforce the terms of the agreement even if they were never formalized in writing. See also Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Board, 739 A.2d 133, 136 (Pa. 1999) (holding that “[i]f the parties agree upon essential terms and intend them to be binding, a contract is formed even though they intend to adopt a formal document with additional terms at a later date”). Section 27 of the Restatement (Second) of Contracts includes similar language, stating that: 

Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations. 

RESTATEMENT (SECOND) OF CONTRACTS §27 (Am. Law Inst. 1981).

In this case, RAWA does not dispute that the parties reached a verbal agreement with respect to Hydrojet’s unpaid water and sewage bills at the meeting between the parties on December 5, 2017. This verbal agreement called for Hydrojet to make installment payments until these unpaid bills were fully satisfied. As can be seen in the subsequent written settlement agreement, the parties agreed that Hydrojet owed RAWA a total of $133,298.00 for past water service and that Hydrojet would make 98 monthly payments of $1,020.00 along with a lump sum payment of $33,329.50 to satisfy these outstanding charges, upon which RAWA would release Hydrojet from any claims relating to its past water usage. Hence, the necessary prerequisites for a valid contract were established at the December 5, 2017 meeting, i.e., offer, acceptance, and consideration, and the trial court did not err in concluding that the verbal agreement was a sufficient basis upon which to rely in granting Hydrojet’s enforcement petition. 

UC - vol. quit - employer reprimand

Decker v. UCBR – Cmwlth. Court – unreported** memorandum decision – November 4, 2019

Burden of proof - A claimant who voluntarily terminates her employment has the burden to establish a necessitous and compelling reason for doing so. Petrill v. Unemployment Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must prove that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). 

Reprimand, etc. - It is well settled that resentment of a supervisor’s reprimand, absent unjust accusations, abusive conduct, or profane language, does not constitute a necessitous and compelling reason to voluntarily terminate one’s employment. Krieger v. Unemployment Comp. Bd. of Review, 415 A.2d 160, 161 (Pa. Cmwlth. 1980).  

Furthermore, “an emotional upset over a reprimand imposed by the employer does not as a rule constitute ‘cause of a necessitous and compelling nature.’” Yasgur v. Unemployment Comp. Bd. of Review, 328 A.2d 908, 910 (Pa. Cmwlth. 1974) (citation omitted). 

Here, Claimant contends that she was compelled to quit because Employer created a hostile, uncomfortable work environment and because she was singled out, embarrassed, and humiliated in front of her co-workers.3 Claimant also asserts that Mr. Nichols unjustifiably threatened her job. We conclude that the record belies these claims. 

+++++++++++

**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

evidence - courts - documents - authentication - Pa. R.El. 901 and 902 - amendments

Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010420753285882660.pdf?cb=1

Rules  http://www.pacourts.us/assets/opinions/Supreme/out/Order%20attachment%20-%2010420753285882712.pdf?cb=1

Report http://www.pacourts.us/assets/opinions/Supreme/out/Order%20report%20-%2010420753285882534.pdf?cb=1

Order http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010420751285878973.pdf?cb=1

Rules  http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%2010420751285878986.pdf?cb=1

Report http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%2010420751285880083.pdf?cb=1

legislative power - non-delegation

Pennsylvania AFL-CIO v. Commonwealth – Cmwlth. Court – October 1, 2019 – precedential, reported

Article II, section 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, § 1. To avoid violating this provision, the General Assembly must make the “basic policy choices involved in [its] ‘legislative power’” when it authorizes some other entity to act. Protz II, 161 A.3d at 833.

This restriction services dual purposes: “it ensures that duly authorized and politically responsible officials make all of the necessary policy decisions, as is their mandate per the electorate,” and it “protect[s] against the arbitrary exercise of unnecessary and uncontrolled discretionary power.” Id.(citation omitted).

The restriction on delegation is not absolute, however, and the General Assembly may “assign the authority and discretion to execute or administer a law” to some other entity if it makes “the basic policy choices” and “include[s] ‘adequate standards which will guide and restrain the exercise of the delegated administrative functions.’” Id. at 833-34 (quoting Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005) (PAGE)).

Accordingly, a “law must contain some intelligible principle to which the person or body authorized to [act] is directed to conform.” Id. at 834 (internal quotation marks and citation omitted) (alteration in the original). Further, a law must include “procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of the delegated power.” Id.

The non-delegation doctrine does not prohibit the General Assembly from “adopting as its own a particular set of standards which already are in existence at the time of adoption.” Protz II, 161 A.3d at 838 (emphasis added).

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

actions against the Commonwealth - laches and estoppel

Berry v. State Employees Retirement Board – Cmwlth. Court – October 9, 2019 – unreported**

Laches

“A party asserting the doctrine of laches must first show that there was a delay caused by the other party’s failure to exercise due diligence, and second, prejudice from that delay.” McGaffic v. City of New Castle, 74 A.3d 306, 317 (Pa. Cmwlth. 2013). 

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999.

Equitable estoppel

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999). 

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

**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

tax sale - notice - personal service - incarcerated owner is "owner-occupant"

Appeal of Hansford – Cmwlth. Court – October 1, 2019 – reported, precedential

Held:  Incarcerated person was an “owner occupant” under Real Estate Tax Sale Law, 72 P.S. secs. 5860.102 and thus was entitled to written notice of the tax sale, by personal service, under 72 P.S. secs. 5860.601(a)(3).

Heightened concern for owner-occupants

Section 601(a)(3) [of the RETSL] demonstrates the General Assembly’s ‘heightened concern for owner occupants being divested of the very property in which they are residing.’ Matter of Tax Sales by Tax Claim Bureau of Dauphin C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the RETSL], the [General Assembly] expressed a desire to provide a qualitatively different type of notice to an owner occupant and afford such owner with increased protection by way of additional notice.’ McKelvey v. Westmoreland C[ty.] Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).  Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth. 2016). 

Focus on compliance of tax claim bureau, not on the alleged neglect of the owner

In reviewing the validity of a tax sale, the court must focus ‘not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the [Bureau] comply with the requirements of the [statute].’ [In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cty. of Props.], 132 A.3d [637,] 644 [(Pa. Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of Pike Cty.], 834 A.2d [1247,] 1251 [(Pa. Cmwlth. 2003)]). It is the conduct of the [Bureau] that is determinative of compliance with statutory notice provisionsClemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).

Temporary absence of owner-occupant is not dispositive

The fact that an owner may be temporarily physically incapable of inhabiting his property does not mean he is no longer an owner occupant, e.g. if hospitalized or incarcerated.  The tax claim bureau is not w/o a possible remedy in this situation.  Under circumstances where an owner who resides at the property may not be physically present at his property during the relevant time period, if the owner cannot be personally served, “the [B]ureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown,” otherwise, the Bureau is mandated to personally serve the owner occupant. 72 P.S. § 5860.601(a)(3). The Bureau did not request waiver of personal service in the instant case.

Tax sales - notice - "additional notification efforts"

Delaney v. Montgomery County Tax Claim Bureau – Cmwlth. Court – August 27, 2019 – unreported memorandum decision**

Held:  Tax sale set aside because of failure of TCB to make proper “additional notification efforts”  concerning tax sale, as required by RETSL sec. 607.1, 72 P.S. sec. 5860.607a(a), when mailed notification is returned w/o signed return receipt or “under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee.”

Burden of proof – filing exceptions overcomes presumption of regularity – strict construction – due process

“It is the taxing authority’s burden to prove compliance with the statutory notice provisions. Casanta v. Clearfield County Tax Claim Bureau, [435 A.2d 681, 683 (Pa. Cmwlth. 1981)]. In Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)], our Supreme Court established that a prima facie presumption of regularity in a tax sale exists until the contrary is shown. In Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, [557 A.2d 38 (Pa. Cmwlth. 1989)], this Court, harmonizing Casanta with Hughes, held that the filing of exceptions overcomes the presumption of regularity in the tax sale; accordingly, the filing of exceptions requires a bureau to prove that it has complied with the statutory notice requirements. Strict compliance with those requirements is required in order to ensure due process, and the burden to show strict compliance lies exclusively with the tax claim bureau. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289 (Pa. Cmwlth. 1996).” In re Tax Sale of Real Property Situate in Paint Township, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).  (emphasia added)  It is well settled that the statutory notice provisions in the Tax Sale Law “must be strictly construed lest a person be deprived of property without due process.” Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013). The tax claim bureau has the burden of proving its compliance with the notice provisions. Id.

Significant doubt about actual receipt of notice – additional notice requirements – Sec. 607.1 – 72 P.S. sec. 5860.607a(a)

When there is “significant doubt” about actual receipt of notice of a tax sale, the tax claim bureau must undertake additional efforts to give notice

[B]efore the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.  72 P.S. §5860.607a(a) (emphasis added). 

In this case, the TCB admittedly did none of those extra things, which the court called “the mandatory minimum search required” by RETSL.

Newspaper notice – fact of notice v. content of notice

The TCB presented evidence that notices had been placed in the local newspapers and legal journal.  However, the it not provide evidence of the content of those notices.  “[A]bsent any evidence concerning the content of the newspaper advertisements, the trial court erred in holding that the Bureau established compliance with the publication requirement of Section 602(a) of the Tax Sale Law.

Focus of RETSL on TCB compliance with each and every element of the statutory requirements

It is well settled that a failure by a tax claim bureau to comply with each and every statutory requirement will nullify a tax sale. Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003). Additionally, we have repeatedly explained that where notice is at issue, the proper focus is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the bureau comply with the requirements of the statute. Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099 (Pa. Cmwlth. 2010).

+++++++++

**An unreported Commonwealth Court case may not be cited as binding precedent, but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

Pennsylvania Bulletin of August 31, 2019

Table of contents   https://www.pabulletin.com/secure/data/vol49/49-35/index.html

Entire issue             https://www.pabulletin.com/secure/data/vol49/49-35/49-35.pdf

Attorneys – discrimination, bias, prejudice – proposed rule of professional conduct – comments due by September 30, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1309.html

The Disciplinary Board of the Supreme Court of Pennsylvania plans to recommend to the Court that it adopt amendments to Pennsylvania Rule of Professional Conduct  8.4 relating to misconduct, as set forth in Annex A. This proposed rule amendment is intended to make it professional misconduct for a lawyer, in the practice of law, to intentionally manifest bias or prejudice, or engage in harassment or discrimination.

Expungements – disciplinary records - professional licenses – IRRC approval of proposed regulation

https://www.pabulletin.com/secure/data/vol49/49-35/1336.html

Consumer – unfair market trade practices – proposed OAG regulations – comments due in 30 days – public hearing September 11, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1320.html

child abuse - expungement - continuance of hearing

M.W. v DHS– Commonwealth Court – Auguset 23, 2019 – reported, precedential opinion

Held:  DHS “misapplied the law and entered a manifestly unreasonable order” by denying the request for a continuance of the hearing by an incarcerated parent.   Parent failed to request a waiver of a timely hearing, but there is no statute or other law requiring an accused parent to file such a waiver.   The case was remanded for a new hearing in the merits “at a time mutually convenient to” the parent and CYS.

DHS was mandated to but did not “make reasonable efforts to coordinate the hearing date,” as required by 23 Pa. C.S. 6341(c.2), which requires a hearing within 90 days from the date of the scheduling order “unless all parties have agreed to a continuance.”  Id.

From the opinion:

Section 6341(c.2) of the Child Protective Service Law does not mandate the filing of a waiver of timeliness in order for a continuance to be granted. Section 6341(c.2) states that the Department “shall make reasonable efforts to coordinate the hearing date[.]” 23 Pa. C.S. §6341(c.2)(2). Once that is done, the Department will begin the hearing “within 90 days” of the scheduling order unless the parties agree to a continuance. 23 Pa. C.S. §6341(c.2)(3). 

There is no evidence that the Department made reasonable efforts to coordinate the hearing date with Mother and CYS, as required in Section 6341(c.2). The ALJ waited until the day of the hearing to inquire into CYS’s position on the continuance request. Had this inquiry been made earlier, CYS may have agreed. 

The indicated report would have simply remained on the ChildLine Registry until a hearing on Mother’s appeal could be held at a time when Mother could attend. It was Mother, not CYS, that bore the consequence of a hearing postponement. 

The Bureau cited Section 6341(c.2)(3) of the Child Protective Services Law to support its conclusion that Mother’s waiver of timeliness was required. However, this was error. 

There is no “waiver of timeliness” required from either party in order for a continuance to be granted. Although CYS could have agreed to a continuance, its acquiescence was not necessary. The ALJ still had discretion to grant Mother’s continuance request. Luzerne County, 203 A.3d at 398. Mother’s waiver was unnecessary and redundant because she, the alleged perpetrator, was the party requesting the continuance. Her act of making the request in itself waived the 90-day requirement. 

We hold that the Bureau misapplied the law and entered a manifestly unreasonable order by denying Mother’s continuance request for the sole reason that she did not file a waiver of timeliness. Accordingly, the adjudication of the Bureau is reversed and the matter is remanded to the Bureau for a new hearing on the merits of Mother’s appeal at a time mutually convenient to Mother and CYS. 

Findlaw - statutory and case law - Pennsylvania et al.

The General Assembly used to have a link to a Westlaw site that had an unofficial compilation of  the complete Pennsylvania statutes.  It used to be here, in the right-hand column under “additional resources.”  No longer.  Not sure when that happened, but it’s not there, so it’s cumbersome to find statutes at times, especially “unconsolidated statutes.”

I’m glad to say that I stumbled across Findlaw, where you can easily find and access all state statutes, consolidated and unconsolidated. 

It also provides case law.   

Here’s what it says.

FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system. For more detailed codes research information, including annotations and citations, please visit Westlaw.

FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs.

UC - UCBR findings - substantial evidence - court review

Spradlin v. UCBR – Cmwlth. Court – unreported* memorandum opinion – August 16, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/159CD19_8-16-19.pdf?cb=1

Finding of overpayment reversed.  UCBR finding not supported by substantial record evidence.

Notwithstanding that the UCBR is “the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence[,]” the record evidence does not support the UCBR’s findings and conclusions in this case. Sipps, 181 A.3d at 484 (quoting Ductmate Indus., 949 A.2d at 342); see Goldman v. UCBR (Pa. Cmwlth. No. 2392 C.D. 2014, filed September 25, 2015); see also VanKersen v. UCBR (Pa. Cmwlth. No. 1771 C.D. 2014, filed April 21, 2015).8 

As substantial record evidence does not support the UCBR’s findings.... the UCBR erred by concluding that Claimant was ineligible for....benefits.... [and was overpaid].

8 This Court acknowledges that its unreported memorandum opinions may only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Goldmanand VanKersen are cited herein for their persuasive value. 

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

*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - jurisdiction of UCBR to consider merits when ER asks only for relief from charges

Martin v. UCBR – Cmwlth. Court – JULY 25, 2019 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/1354CD18_7-25-19.pdf?cb=1

Held:   Employer letter requesting only relief from charges does not act as an appeal on the merits on the case, even where filed within the applicable appeal period.

This Court has repeatedly held that “the filing of an appeal from an eligibility determination is separate and distinct from the filing of a request for relief from charges.” See Ruffner v. UCBR, 172 A.3d 91 (Pa. Cmwlth. 2017) (quoting First Nat’l Bank of Bath v. UCBR, 619 A.2d 801 (Pa. Cmwlth. 1992)); see also Myers v. UCBR (Pa. Cmwlth., Nos. 1856 & 1857 C.D. 2012, filed June 6, 2013), 2013 WL 3156565 (unreported).11 Stated otherwise, a request for relief from charges will not serve as an appeal from an eligibility determination. 

Here, the UC Service Center determined Claimant was not ineligible for UC benefits under Section 402(b) of the UC Law on the basis she had a necessitous and compelling reason to resign her employment. The notice of determination indicated that the final day to timely appeal that determination was March 12, 2018, and that the determination would become final absent the filing of an appeal by that date.

The record reveals that Employer initiated this matter by mailing a letter to the Employer Charge Unit within the 15-day appeal period, which explicitly stated, “[w]e respectfully request a relief of charges” and “this is not a request for an appeal; it is a request for a noncharge.” (bold and underline emphasis added).

Despite that express language, the Employer Charge Unit apparently assumed the letter was an appeal and transferred the letter to the UC Service Center, which then transferred the letter to the referee office, and a hearing ensued before the referee on eligibility. In reversing the UC Service Center’s determination and concluding that Claimant was ineligible for benefits under Section 402(b), the referee and the Board also treated Employer’s explicit request for relief from charges as an appeal from the UC Service Center’s eligibility determination. The referee and the Board erred in doing so because Employer was not appealing that determination.

In short, because Employer expressly did not appeal the UC Service Center’s determination finding Claimant not ineligible for benefits, that determination became final and binding on the parties and, consequently, deprived the referee and the Board of jurisdiction to issue the subsequent decisions reversing the UC Service Center’s determination and finding Claimant to be ineligible for benefits. See Section 501(e) of the UC Law, 43 P.S. §821(e); see also Section 302.1(e)(1) of the UC Law,12 43 P.S. §782.1(e)(1) (pertaining to relief from charges and providing that where a party’s eligibility is finally determined under Section 501(e), such determination shall not be subject to collateral attack in proceedings under Section 302.1). We therefore hold that the Board erred in concluding that Claimant was ineligible for benefits under Section 402(b) of the UC Law.

Editor’s note:  I suggest that someone move for publication of this opinion, which I think could be helpful and important in the frequent case (I think) where the UCBR reaches the merits of cases on ER request for relief from charges long after the time for appeal has passed.  What do others think?

+++++++++++

**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

MDJ courts - execution on $ judgment outside of county of entry - MDJ Rule 402

Rules             http://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%2010407321169206194.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010407321169206208.pdf?cb=1

Final report  http://www.pacourts.us/assets/opinions/Supreme/out/report%20-%2010407321169206198.pdf?cb=1

(2) The magisterial district judge in whose office the judgment was rendered or entered shall accept all timely requests for an order of execution on that judgment, including when the location of the property to be levied upon is located outside the county of the magisterial district where the judgment was rendered or entered. 

UC - willful misconduct - inconsistent enforcement v. disparate treatment

Gordon Terminal Service Co. v. UCBR – Cmwlth. Court – Juine 3, 2019 – reported, precedential

http://www.pacourts.us/assets/opinions/Commonwealth/out/1603CD18_6-3-19.pdf?cb=1

Held:  Where the evidence showed that the employer’s enforcement of a rule against use of cell phone at work was inconsistent, the employer did not establish the existence of a rule that would support a finding of willful misconduct.

Although Employer may have had a written policy prohibiting the use of cell phones without special approval, in reality the Board found that, if Employer had such a policy, Employer engaged in “inconsistent enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence of a rule that could support a finding of willful misconduct.

See Great Valley Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated violations of its policy governing employees’ internet use, employer failed to establish that claimant’s use of internet amounted to willful misconduct); Penn Photomounts, Inc. v. UCBR, 417 A.2d 1311, 1314-15 (Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting absences and employer was aware that its employees followed less formal practice to report absences and tolerated less formal reporting practice, use of less formal practice did not constitute willful misconduct). Thus, Employer failed to meet its burden to prove that Claimant violated Employer’s work rule

Inconsistent enforcement v. disparate treatment

The Board did not determine that Employer engaged in disparate treatment but rather that Employer did not meet its burden to establish willful misconduct due to its inconsistent enforcement of a work rule. The Board, in support of its decision, wrote:  The Board is unable to substantiate any error in the Referee’s willful misconduct analysis. The employer contends that the claimant’s testimony is insufficient to establish disparate treatment regarding cell phone usage in the workplace. Nonetheless, the claimant’s testimony was more than sufficient to establish inconsistent enforcement of an alleged work rule stating that cell phone use is not permissible without special approval. (Id. at 123a.) 

The distinction between the two concepts—i.e., disparate treatment and inconsistent enforcement of an alleged work rule—is nuanced and subtle. Disparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. In situations of inconsistent enforcement, an employer cannot prove the “deliberate violation” required by Grieb necessary for a determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying “deliberate violation of an employer’s rules” as a form of willful misconduct). Here, the Board concluded that Employer failed to establish a violation of Employer’s rules due to Employer’s inconsistent enforcement of its cell phone prohibition and, therefore, failed to prove willful misconduct. As a result, the affirmative defense of “disparate treatment” is inapplicable.