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 Court – 12-16-20 – unreported, non-precedential decision**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*An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.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 Superior – December 16, 2020 – non-precedential decision**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*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.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