UC - employee v. independent contractor - "actually engaged" in own business

Subcontracting Concepts, Inc. v. UCBR – Cmwlth. Court – 12-16-20 – unreported, non-precedential decision**

 

Held: UCBR decision affirmed, that claimant was not an independent contractor, despite an written agreement stating that he was.  The employer did not offer proof that the claimant was actually engaged in his own business.

 

This case is reported here, because it contains a helpful, extended discussion of the issue, citing important recent precedent, including 

-A Special Touch v. Department of Labor & Industry, 228 A.3d 489 (Pa. 2020)

-Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781 (Pa. 2006).

- Lowman v. UCBR, 235 A.3d 278 (Pa. 2020

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*An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.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

 

 

PFA - reasonable fear does not require proof of past physical abuse

C.J.L. v. W.S.M. , SR. – Pa. Superior – December 16, 2020 – non-precedential decision**

 

Held: Course of conduct which creates reasonable fear of bodily injury can be based solely on non-physical factors, such as threats and following victim to work.  It does not require proof of past physical violence. D.H. v. B.O., 734 A.2d 409 (Pa. Super. 1999) and Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) distinguished.

Burke and D.H. hold that reasonable fear can be based on persistent communications particularly where there is a history of abuse. Neither case required evidence of past abuse or held that communications alone can never form the basis for a PFA. Moreover, the record reflects more than mere communication. The victim testified that on one occasion defendant, from his car, noticed her travelling in the opposite direction and turned around and followed her to work. 

Evidence issue – The fact that the physical text message and letters were not in evidence was not relevant, where they were read into evidence in open court, and the parties testified as to their perceived meaning 

 

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.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

UC - willful misconduct - ER failure to give reason for firing at time of termination does not preclude later proof of reason

The Community Youth and Women’s Alliance v. UCBR – Cmwlth. Court – 12-12-20 – unreported memorandum decision, no precential**

 

Held:  The failure of an employer to give claimant a reason for her firing at the time of termination does not preclude the employer from later establishing one in response to initial determination or at hearing, so long as the latter two are consistent.

 

From the opinion:

In determining whether an employer has discharged an employee for willful misconduct, we have held that an employer is prohibited from offering one reason for discharge at the time of separation and then later relying on a completely different reason. See Saleem v. UCBR., 35 A.3d 1283, 1290-93 (Pa. Cmwlth. 2012); Browning-Ferris Indus. of Pa., Inc. v. UCBR., 561 A.2d 856, 857 (Pa. Cmwlth. 1989). 

However, that is not the same as not giving a reason at the time of discharge, but later offering one in response to the initial determination and later at an appeal hearing.  Precedent does not constrain an employer that fails to provide a reason at discharge from later establishing one. In the matter before us, Employer has alleged the same reasons for Claimant’s discharge at all times since it completed the employer questionnaire: general financial mismanagement, lapse of insurance, excessive trash fees, and lack of financial disclosure to the board of directors. Employer’s failure to provide these reasons to Claimant at the time of discharge does not prevent Employer from later establishing them in order to meet its burden of proof under Section 402(e) of the Law. 

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

 

LT - request for order of possession - time limit extended to 180 days from entry of judgment

Order -           http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104625461121365958.pdf?cb=1\

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104625461121365893.pdf?cb=1

Final Report  http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104625461121365777.pdf?cb=1

 

 

Recommendation 4-2020, Minor Court Rules Committee

Amendment of Pa.R.C.P.M.D.J. Nos. 515 and 516

EXTENSION OF TIME FOR A LANDLORD TO REQUEST AN ORDER FOR POSSESSION IN A RESIDENTIAL LEASE CASE

Introduction

FINAL REPORT1

The Minor Court Rules Committee (“Committee”) recommended amendments to Rules 515 and 516 of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (“Rules”). The amendments will permit a landlord in a case involving a residential lease to request an order for possession within 180 days from the date of entry of judgment rather than the current 120 days. The recommendation is necessitated by exigent circumstances requiring the immediate adoption of the proposal and is adopted in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.

I. Background and Discussion

Following the issuance of a judgment in a landlord-tenant case and the requisite waiting period, a landlord seeking to regain property must file a request for an order for possession with the magisterial district court. See Rule 515. In residential landlord-tenant cases, the landlord must file the request for an order for possession no later than 120 days from the date of entry of the judgment. See Rule 515B(1). Certain actions will stay the period within which a request for order for possession must be filed, such as an appeal or writ of certiorari operating as a supersedeas, or a bankruptcy or other stay required by state or federal law. See Rule 515B(2).

Since the onset of the COVID-19 pandemic, the Court, the federal government, the Governor, and the Centers for Disease Control and Prevention (“CDC”), inter alia, have promulgated laws and orders suspending certain residential evictions.

One of the most recent orders staying some residential evictions, issued by the CDC, will expire on December 31, 2020.

The Committee received correspondence recommending an extension of the 120- day period within which a landlord must file a request for an order for possession in a residential landlord-tenant case. An extension would provide the parties with greater flexibility to negotiate and enter into private forbearance agreements. Such private agreements could allow the tenants additional time in which to satisfy back rent obligations while maintaining current rental payments and housing status. Therefore, the Committee recommended increasing the time period within which a landlord must file a request for an order for possession in a residential lease case from 120 days to 180 days. 

III. Rule Changes

Rules 515 and 516 are amended to provide for 180 days within which a landlord in a residential lease case must request an order for possession. Rule 516C is further amended to provide that upon written request of the landlord in a case arising out of a residential lease, the magisterial district judge shall reissue an order for possession for no more than two additional 60-day periods.

Docket, In re: General Statewide Judicial Emergency, p. 12. See also Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (“CARES Act”); Commonwealth of Pennsylvania, Executive Order May 7, 2020, § 2, as amended, May 21, 2020; Commonwealth of Pennsylvania, Executive Order July 9, 2020, § 2; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (Sept. 4, 2020) (“CDC Order”).

 

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1 The Committee’s Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee’s Official Notes or the contents of the explanatory Final Reports.

2 See Order of March 18, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, pp. 8-9 (suspending eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment). See also Order of April 1, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, p. 6, Second Supplemental Order; Order of April 28, 2020, Nos. 531 and 532 Judicial Administration