UC - medical marijuana - sec. 402 (e.1)

Pittsburgh Water and Sewer v. UCBR – Cmwlth. Court – en banc – reported, precedential – November 18, 2020

 

Held: Claimant not disqualified under sec. 402 (.1), 43 P.S. sec. 802 (e.1), relating to discharge for failure to submit to or pass a drug test conduct pursuant t9 an employer’s established substance abuse policy, under the following circumstances.

 

• Claimant had valid prescription for medical marijuana, permitted under state law
• Claimant told ER that she had such a prescription and submitted a copy to the ER
• ER policy allowed a CL to rebut positive test w/in 3 days w/proof of valid prescription
• ER policy prohibited release of positive test to medical review officer  (MRO) if CL produced prescription w/in 3 days
• ER policy excused use of marijuana if medically prescribed
• ER policy allowed use of prescription drugs at work
• Marijuana was a “legal drug” when valid prescription, under ER policy
• ER released test result nonetheless – failed to follow its own policy
• ER discharged CL because marijuana illegal under federal law

 

UCBR and Court found that ER policy was ambiguous and should be construed against ER, which drafted it. 

 

ER failed to follow its own policy, as it is required to do under UC Law.

“[T]he statutory language clearly provides that to be ineligible for UC benefits under Section 402(e.1) of the Law, the drug test must be in accordance with employer’s substance abuse policy.” Katera’s Kove, Inc. v. Unemployment Comp. Bd. of Review, 130 A.3d 800, 804 (Pa. Cmwlth. 2015) (emphasis added). Here, Employer’s Drug Policy expressly permits “individuals [to] use . . . prescription drugs while at work strictly in accordance with . . . a physician’s prescription[.]” R.R. at 170a. Further, the Drug Policy defines “legal drug” as “prescription medications . . . that have been legally obtained[,]” R.R. at 173a, and explicitly states that “[t]he possession or use of legal drugs while on [Employer’s] premises, during work hours and/or when performing any [Employer] business . . . is permitted[.]”  [emphasis in original]

 

Court recognized that UC law is remedial

“[I]t is to be remembered that the . . . Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives (insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security) may be completely achieved.  A Special Touch v. Dep’t of Labor & Indus., 228 A.3d 489, 503 (Pa. 2020) (quoting Wedner v. UCBR, 296 A.2d 792, 796 (Pa. 1972)). 

 

 

 

 

 

 

 

 

contracts - instruments under seal - statute of limitations - waiver of rights

National Loan Investors v. Gold – Pa. Superior Court – 11-13-20

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A17011-20m%20-%20104603903119751379.pdf?cb=1

 

This decision is not precedential but it is worth reading and considering.  It upholds the argument that the contract/instrument was under seal – and thus extended the statute of limitations in the matter to 20 years.  

 

This writer would like to see a challenge to this and similar cases. It seems to me that no one realize the effect of a contract being under seal ,and that a waiver of the normal rules for statutes of limitations should only be enforced when it is knowing, intelligent, and voluntary. 

 

See, e.g., Cole v. Philadelphia Co., 26 A.2d 920, 924 (Pa. 1942), “To make proof of waiver of a legal right there must be clear, unequivocal and decisive action of the party with knowledge of such right showing a purpose to surrender such right on his part.” Accord, Brown v. City of Pittsburgh, 186 A. 2d. 399, 401 (Pa. 1962); Johnson v. Concord Mutual Insurance Co., 300 A. 2d 61, 64-5 (Pa. 1973); Transnational Consumer Discount Co. v. Kefauver, 307 A.2d 303, 305 (Pa. Super. 1973).

 

“An agreement or instrument which reduces legal rights which would otherwise exist is strictly construed against the party asserting it and must spell out with the utmost particularity the intention of the parties,” e.g. an exculpatory clause relieving a landlord of liability for negligence with respect to the conditions of stairs, etc. Galligan . Arovitch, 219 A. 2d 463, 464-5 (Pa. 1966).

 

There are also cases involving a confession of judgment with similar language, e.g., Cutler v. Latshaw, 97 A.2d 234 (Pa,. 1953), and its progeny,.

 

 

 

LT - L's failure to get required use/occupancy permit did not give former tenant right to counterclaim for past rent paid

Aspen Enterprises v. Thomas – Pa. Superior Court – 11-5-20 – unreported** memorandum opinion

 

Held: Former landlord sued for past rent due and damages to the premises by former tenant.  Court dismissed tenant’s counterclaim for rent already paid dismissed, in spite of landlord’s failure to get a use/occupancy permit from City of Chester under ordinance which “denied the right to recover possession. . .or to collect rent during any period of noncompliance” with ordinance.  Frempong v. Richardson, 209 A3d 1001 (Pa. Super. 2019), concerning similar Philadelphia ordinance, distinguished.

 

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This case is also reported in the PLAN Legal Update  http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).