UC - late appeal - presumption of receipt of notice of determination rebutted - breakdown in admin. process - misdirection by UCSC

Bashinsky v. UCBR – Cmwlth. Court – 2-24-21 – reported decision

 

Held: Claimant’s act of contacting the UC Service Center, as evidenced by record of “Live Chat,” was evidence that he did not received the UCSC notice of determination and rebutted the presumption of receipt of the notice.

The Board’s finding the claimant received a notice of determination on the date alleged “is not supported by substantial evidence.” There was “no entry in the claim record indicating that a notice of determination was mailed” on the date claimed by the Department. In addition, the Board’s credibility determination [concerning claimant’s testimony of non-receipt] is an insufficient basis for denying nunc pro tunc relief. 

This is not a case where the claimant made an after-the-fact assertion that he did not receive a notice of determination. Claimant’s act of initiating the LiveChat session with the UCSC and asking whether there was “[a]ny update on my claim?,” is itself evidence that he had not received the notice because, if he had, there would have been no reason for him to contact the Service Center.

Moreover, the UC representative’s statement to claimant in the Live Chat that his claim was undergoing an adjudication process was “incorrect information” and showed a breakdown in the administrative process.  The representative knew that the claim had already been denied, and the representative failed to notice claimant of the appeal deadline, which was three days after the Live Chat. Instead, the representative “provided Claimant with misdirection. . . .[i]nstead of responding to Claimant’s specific request for an update on his claim.”

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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.

 

 

 

 

Housing - Sec. 8 - medical marijuana

Cease v. Housing Authority of Indiana County – Cmwlth. Court – February 19, 2021 – reported decision – (2-1) 

Petition for allowance of appeal denied Sept. 14, 2021

https://www.pacourts.us/assets/opinions/Supreme/out/74WAL2021%20-%20104893193146422235.pdf?cb=1

 

Held:  Housing Authority and trial court erred in denying Sec. 8 Housing Choice Voucher application of disabled veteran with valid permit under state law to “obtain and use medical marijuana to treat her conditions.” The denial was based solely on her use of that drug, which remains an illegal substance under federal law. 

 

The court remanded the matter to the Housing Authority to do what federal law, the QHWRA, 42 USC sec. 13661, “mandates and establish fair and reasonable standards for determining in what circumstances admission to Section 8 housing is prohibited for an applicant who is legally using medical marijuana under state law, and to apply those standards with respect to the applicant’s individual circumstances when determining her eligibility for Section 8.”

 

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From the opinion:

 

 

Federal law does not outright require barring an application based on an applicant’s use of a controlled substance, but rather requires that a housing authority “shall establish standards” in such circumstances, 42 USC sec. 13661 (b)(1)(A).  [T] here is a difference between “shall establish standards that prohibit admission” and “shall prohibit admission.” Otherwise, the term “establish standards” is entirely meaningless.” Compare the provision concerning sex offenders, which states that a housing authority “shall prohibit admission” of such an offender. 

 

In other words, for purposes of Section 13661(b)(1)(A), the Authority must establish standards for determining when and on what basis admission is prohibited for a Section 8 housing applicant who the Authority determines is illegally using a controlled substance. See Nation v. Trump, 818 F. App’x 678, 679-80 (9th Cir. 2020) (“QHWRA requires that owners of federally-assisted housing establish certain occupancy standards pertaining to illegal drug use for residents. See generally 42 U.S.C. §§ 13661-62.”).  

 

Such standards must take into account factors such as the nature of the substance, i.e., whether it is clearly unlawful or in an unclear legal state such as that involved here; the reason for such use; whether it is being used in accordance with legal requirements; other factors concerning the applicant’s background, including behavior during any prior residence in federally subsidized housing; and the presence or absence of any prior criminal record. The different conclusion by a lower federal court in Michigan is not binding here. 

 

The applicant “possesses a valid Pennsylvania Medical Marijuana Identification Card authorizing her to legally obtain and use medical marijuana under medical supervision, and the Authority does not dispute that she has a valid medical basis for her use and that it is properly prescribed and supervised.

 

Consequently, we find the term “illegally using a controlled substance” to be ambiguous here where her use is prohibited by the federal government but permitted under state law. Criminal law is primarily a matter for the states to determine within their own jurisdictions. “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012). As the Pennsylvania Supreme Court recently observed: 

 

[T]he core principle of federalism recogniz[es] dual sovereignty between the tiers of government.” See United States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990) (“The states and the national government are distinct political communities, drawing their separate sovereign power from different sources, each from the organic law that established it. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses.”). In enacting the [Pennsylvania Medical Marijuana Act], the Pennsylvania Legislature proceeded pursuant to its independent power to define state criminal law and promote the health and welfare of the citizenry.  Gass v. 52nd Jud. Dist., 232 A.3d 706, 714 (Pa. 2020). Consequently, “while possession and use of marijuana remains illegal under federal law even for medical purposes, . . . the federal [CSA] does not (and could not) require states to enforce it.” Id. at 714. 

 

Dissent –  McCullough

 

The Majority goes to great lengths to explain why Congress’s use of the phrase “shall establish standards that prohibit” in section 13361 of the federal Quality Housing and Work Responsibility Act (QHWRA), means a Public Housing Authority (PHA) has “flexibility” to decide whether to admit an illegal drug user (as defined in the federal Controlled Substance Act (CSA)) into a Section 8 housing program. By avoiding the rules of statutory interpretation, the Majority assigns to the phrase “shall establish standards that prohibit” a meaning that Congress plainly did not intend. 

 

The Majority also disregards some very basic constitutional and jurisprudential concepts to arrive at the desired conclusion that Mary Cease (Cease), a user of medical marijuana, is not “illegally using a controlled substance” under the QHWRA. The fact that Pennsylvania’s Medical Marijuana Act (MMA) legalizes the use of medical marijuana in limited situations is immaterial to the disposition of this case. The CSA (which illegalizes medical marijuana as a Schedule I drug) applies here because the QHWRA is a federal statute. 

I disagree with the Majority’s interpretation of section 13661 of the QHWRA. To me, it is abundantly clear that PHAs have no discretion to admit persons who engage in the illegal use of drugs, as defined in the governing federal law. Rather, PHAs are required to deny admission to Section 8 housing if the PHA determines that the applicant or any household member is currently engaging in illegal use of drugs.  

The Majority’s position simply cannot be reconciled with the Supremacy Clause of the United States Constitution, which dictates that the federal law prevails over state law. The Supremacy Clause prevents this Court from applying the Pennsylvania MMA to discern the meaning of “illegally using a controlled substance.” 

child abuse - founded report based on ARD - right to admin. hearing

J.F. v. DHS – Pa. S.Ct.  February 17, 2021

 

Majority - http://www.pacourts.us/assets/opinions/Supreme/out/J-48-2020mo%20-%20104689937127731600.pdf?cb=1

Dissent - http://www.pacourts.us/assets/opinions/Supreme/out/J-48-2020do%20-%20104689937127731607.pdf?cb=1

 

In the absence of another appropriate forum to challenge DHS’s adjudication of child abuse in a recorded evidentiary hearing, a named perpetrator in a report designated as “founded” based upon the perpetrator’s voluntary entry into an accelerated rehabilitative disposition is entitled to an administrative hearing. We therefore affirm the Order of the Commonwealth Court. 

 

consumer protection - UTPCPL - strict liability - no state of mind requirement - Pa. S.Ct.

Gregg v. Ameriprise Financial – Pa. S. Ct. – February 17, 2021

 

Majority – Wecht, joined by Donohue, Dougherty and Mundy.

In 1999, Gary and Mary Gregg sought the expertise of Robert A. Kovalchik, a financial advisor and insurance salesperson for Ameriprise Financial, Inc. Engaging in what the trial court would later conclude to be deceptive sales practices, Kovalchik made material misrepresentations to the Greggs to induce them to buy certain insurance policies. The Greggs ultimately sued Ameriprise Financial, Inc., under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“CPL”), 73 P.S. § 201-2(4)(xxi). The Greggs’ complaint also asserted, inter alia, common law claims for negligent misrepresentation and fraudulent misrepresentation. 

Both the trial court and the Superior Court concluded that the Greggs were not required to prevail on the common law claims of fraudulent misrepresentation or negligent misrepresentation in order to succeed on their CPL claim. Gregg v. Ameriprise Fin., 195 A.3d 930, 936 (Pa. Super. 2018). Applying Commonwealth v. TAP Pharm. Products, Inc., 36 A.3d 1197 (Pa. Cmwlth. 2011), rev’d on other grounds, 94 A.3d 350 (Pa. 2014), the Superior Court held that the test for deceptive conduct under the CPL is whether the conduct has the tendency or capacity to deceive, without regard to the actor’s state of mind. Gregg, 195 A.3d at 939. 

A strict liability standard applies to the Greggs’ CPL claim. A plain language analysis of the relevant statutory provision leads inexorably to the conclusion that deceptive conduct under the CPL is not dependent in any respect upon proof of the actor’s state of mind. The Superior Court’s holding is consistent not only with the plain language of the CPL, but also with our precedent holding that the CPL is a remedial statute that should be construed broadly in order to comport with the legislative will to eradicate unscrupulous business practices. See Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 817 (Pa. 1974). Accordingly, we affirm. . . . .

The addition of “deceptive” to describe the type of conduct barred by the catch-all provision of the CPL expanded that provision beyond fraudulent conduct. In particular, in the context of consumer protection, “deceptive conduct” had acquired a peculiar and appropriate meaning prior to the 1996 amendment. As we have explained, the CPL is based upon the Federal Trade Commission Act (“FTCA”) and the Lanham Act. Id. at 818 (observing that parts of the CPL are identical to the FTCA and that the “Lanham Act’s similarity to the [CPL] is likewise strong”). Under the FTCA, deception is a broader concept of misconduct than common law fraud, and requires no proof of the actor’s state of mind. See, e.g., Montgomery Ward & Co. v. FTC, 379 F.2d 666, 670 (7th Cir. 1967) (rejecting the argument that deceptive advertising required proof of intent: “whatever Wards’ intentions were in the advertising, they are not controlling in the determination of its deceptiveness”). Rather than being premised upon intent, 

misrepresentation that has the tendency or capacity to deceive is a deceptive act under federal law. Id. (“Actual deception, proved by deceived consumers, is not necessary: the likelihood of deception or the capacity to deceive is the criterion by which the advertising is judged.”); see also Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1496 (1st Cir. 1989) (explaining that a deceptive representation depends upon the impression created by the representation, rather than its truth or falsity). 

 Dissent – Todd, Saylor, and Baer

http://www.pacourts.us/assets/opinions/Supreme/out/J-31-2020do%20-%20104690395127765002.pdf?cb=1

In Commonwealth v. Golden Gate National Senior Care, 194 A.3d 1010 (Pa. 2018), our Court held that Section 201-2(4)(xxi) of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law1 (“CPL”) prohibits all “deceptive conduct” in a consumer transaction, i.e., all conduct which has “the capacity or tendency to deceive.” I agree with the majority that this holding should be reaffirmed. Additionally, I agree that Section xxi can be invoked in either a public enforcement action brought by the Attorney General, or in a private action such as the one brought by Appellees in the case at bar. However, on the core question before us, I disagree that the General Assembly, when it amended Section xxi in 1996 to add the prohibition against “deceptive conduct” in the conduct of  consumer transactions for goods and services, intended to impose strict liability. Therefore, I must respectfully dissent. 

 

 

 

 

 

 

 

 

 

 

UC - late appeal - duty of prompt examination - delay - limited duty of claimant to update address

 

Byrd v. UCBR – Cmwlth. Court  - en banc - February 4, 2021 – unreported memorandum decision**

This case has unusual facts but contains some language that might be generally helpful to claimants.

It involves a 2012 UC claim on which DLI paid > $6k in benefits. However, the worker/appellant denies ever having applied for benefits, since she was working during the relevant time period. There may be an identity theft issue in the case.

In 2017 – five years after the claim was open and paid – the Department sent worker a series of notices that raised quesetions about her eligibility. Worker never respond to the notices, because she did not receive them, having moved a number of times since 2012. She eventually found out about the case when DLI entered a  lien against her. She then appealed that decision, which was rejected as being late.

The court reversed, granting her the right to appeal beyond the legal time limits, because 

1. the Department violated its duty to promptly examine claims, sec. 501 (c), 43 P.S. sec. 821 (c).
2. there was no presumption that the worker received the Department’s notice of determination, given that it was sent to an incorrect address

Duty of prompt examination of UC claims – delay in issuing determination

Section 501 of the UC Law provides that the Department shall promptly examine each application for benefits. . . 43 P.S. § 821(a) & (b) (italics added).
Here, the Department conducted no examination of the 2012 UC claim other than its 2012 verification of Claimant’s 2011 separation of employment from one employer and its 2017 questionnaire to Employer. . . . . [T]here is no indication that . . . Claimant’s last employer, was provided with notice of her alleged claim for UC benefits as required by Section 501(b) of the UC Law. Thus, there is no indication in the record that the Department attempted to verify Claimant’s alleged separation from Employer in 2012, or at any other time prior to mid-2017. Further, the record contains no explanation by the Department for its five-year delay in pursuing its examination of the claim. 

Nunc pro tunc appeals - Nunc pro tunc relief allowing a UC claimant’s untimely appeal may be permitted where the delay in filing the appeal is the result of extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct of the claimant or a third party. Mountain Home Beagle Media v. Unemployment Comp. Bd. of Rev., 955 A.2d 484 (Pa. Cmwlth. 2008); see also Rude v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 184 C.D. 2010, filed Sept. 20, 2010), slip op. at 3-4, 2010 Pa. Commw. Unpub. LEXIS 640, at *5 (unreported) (citing Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130 (Pa. 1996) and Mountain Home Beagle Media). Negligence by an administrative official may be equivalent to fraud for purposes of justifying nunc pro tunc relief. Rude. . . . (citing Stana v. Unemployment Comp. Bd. of Rev., 791 A.2d 1269 (Pa. Cmwlth. 2002)).  Here, Claimant contends the Department was negligent by reason of its five-year delay in issuing the notices of determination. As a result, because Claimant had moved multiple times in the interim, the Department did not provide the requisite notices of its determinations, having mailed them to the wrong address. We agree. 

Leavitt, J. – concurring – no duty of claimant to update address after her claim period has ended

Section 501(e) of the UC Law requires a party to appeal after a notice “was mailed to his last known post office address.” 43 P.S. §821(e) (emphasis added). A fair reading of Section 501(e) suggests that a claimant who has an open claim for unemployment benefits may not raise non-receipt of a determination as an excuse for filing an untimely appeal if she failed to notify the Department of her new address. 

However, it is a bridge too far to read the term “last known post office address” to signify a mandate that any person who ever interacted with the unemployment compensation system must keep the Department informed of every address change after benefits have ceased, by virtue of the claimant’s return to the workplace, or have been exhausted. It is evident when looking at other statutes that the legislature knows how to impose a duty to report address changes when it wishes. . . . .T]he Unemployment Compensation Law imposes no such duty on an individual who once applied for unemployment benefits. When there is no duty, there can be no negligence. . . . For this reason alone, the Board erred in holding that Claimant was in any way negligent for not updating her address with the Department five years (or more) after she ceased to collect unemployment benefits. 

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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