UC - vol. quit - remand - lack of necessary findings, etc.

Hohl v. UCBR – Cmwlth. Court  reported decision – Sept. 22, 2021

https://www.pacourts.us/assets/opinions/Commonwealth/out/478CD20_9-22-21.pdf?cb=1

 

Held: Case remanded to UCBR, which failed to make the findings necessary for the court to make an informed decision in case involving a voluntary quit based on alleged threat to claimant by a co-worker. There were no findings about claimant’s credibility concerning a) the threat of physical violence against him by a co-worker, or b) whether claimant had provoked the threat.

 

From the opinion

 

Basic law on voluntary quit cases

In order for a claimant to establish cause of a necessitous and compelling nature, he must show: (1) the existence of circumstances that created real and substantial pressure to leave employment; (2) that such circumstances would compel a reasonable person to leave employment; (3) that he acted with ordinary common sense; and (4) that he made a reasonable attempt to continue his employment. Comitalo v. UCBR., 737 A.2d 342, 344 (Pa. Cmwlth. 1999). Where the claimant has failed to take all necessary and reasonable steps to preserve the employment relationship, he cannot demonstrate a necessitous and compelling reason for leaving his job and is ineligible for benefits. PECO Energy Co. v. UCBR., 682 A.2d 58, 61 (Pa. Cmwlth. 1996). “Each [situation] must be examined on an individual basis to understand the exigencies the claimant faced at the time [he] decided to separate from employment.” Kelly v. UCBR., 172 A.3d 718, 723 (Pa. Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018). 

 

Threats of violence

Threats of violence and fear for one’s safety may constitute necessitous and compelling circumstances for quitting employment. See Kama Corp. v. UCBR., 410 A.2d 974 (Pa. Cmwlth. 1980); see also Howell v. UCBR., 501 A.2d 718 (Pa. Cmwlth. 1985) (reversing denial of benefits when claimant quit over being struck in face by another employee and, after employee was terminated, employee returned to workplace and again struck claimant in face). As we explained in Scott v. UCBR (Pa. Cmwlth., No. 637 C.D. 2014, filed November 7, 2014):

Concern for personal safety, including fear of physical attacks by co[]workers, can constitute necessitous and compelling reasons for leaving employment. The mere fact that the claimant is subjectively afraid, however, is not sufficient; the safety risk must be objectively real to constitute a sufficient reason for resigning from one’s job.

Moreover, even where the safety concern is real and serious, the claimant must show that he made a reasonable attempt to seek protection from the danger and that the employer’s response gave him no choice but to leave his employment. If the employer has offered alternative work arrangements that could solve the safety issue, quitting without even attempting to work under those arrangements does not constitute a reasonable attempt to preserve employment and bars the claimant from benefits.[8] “If the employer promises to take action to alleviate the problem, good faith requires that the employee continue working until or unless the employer’s action proves ineffectual.” Craighead-Jenkins [v. UCBR, 796 A.2d [1031,] 1034 [Pa. Cmwlth. 2002]. Scott, slip op. at 5-6 (some citations omitted).

No burden on claimant to request alternative work arrangements -- The Referee had based his reasoning on the fact that Claimant “made no inquiry with [E]mployer to work in a different section of the warehouse or to work at a different [E]mployer location.”  While we have held that, in order to make a reasonable attempt to preserve his employment in a situation where an employer offers alternative work arrangements in response to a report of a physical threat, an employee must attempt the alternative work arrangement, see Scott, slip op. at 5-6, we have not required an employee to request an alternative work arrangement in the face of a physical threat. In Comitalo., 737 A.2d at 345. we held that, “[u]ltimately[,] [an] employer bears the responsibility for eliminating harassment against employees in the workplace,” recognizing that “there is a certain level of conduct that an employee will not be required to tolerate and that the Court will not place all responsibility upon an employee to resolve his . . . work dilemma.” Comitalo, 737 A.2d at 345. We believe an employer bears a similar level of responsibility in the face of threats of physical violence. Here, there is no record evidence that Employer offered Claimant an alternative work arrangement that Claimant rejected. 

++++

Editor’s note: The court could/should have discussed its black letter law about the need for admin. decisions to have findings and reasons.

Findings and reasons -  2 Pa. C.S. § 507 - “All adjudications….shall contain find­ings and the reasons for the adjudica­tion….”

                        a) Basic findings of fact are “essential to the validity” of an administrative decision. The findings must be “sufficiently specific to enable the reviewing court to adequately review the findings and decide questions of law. Begis, 398 A.2d 643.  Accord, Page’s Dept. Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975).  “Failure to make the requisite findings is a violation of due process,” Begis;  2 Pa. C.S. §507.

                        b)  Findings must be specific, not general and conclusory.  Koggan v. UCBR, 472 A.2d 277 (Pa. Cmwlth 1984) 

                        c) Findings must be complete.  They must cover all issues “necessary to resolve the issues raised by the evidence which are relevant to the decision.”  Koggan, Page’s Dept. Store.

                        d) The appellate court may not infer from the absence of a finding that a question was resolved in favor of the prevailing party before the agency.  Koggan

                        e) Where findings are not adequate, the appellate court will usually remand the case, since it is not the court’s function to be a fact-finder.”  Koggan, Page’s Dept. Store.

                        f) credibility findings – Held sufficient in UC cases if the UCBR simply says it chose to believe one side or the other.  Peak v., UCBR, 501 A2d 1383, 1387 (Pa. 1985), 1387.  Compare, Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004), where court held that a credibility determination was not adequate because the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations." 

                        g)  federal law – At least in the area of Social Security, the requirement of giving findings and reasons, 5 U.S.C. sec. 557(c), is much more demanding and is enforced much more strictly.  See e.g., Cotter v. Harris, 642 F.2d 700, 704-707 (3d Cir. 1981).

tax sales - RETSL - notice of challenge to successful bidder not required

In re Lehigh Co. TCB Upset Sale – Appeal of Tchorzewski – Cmwlth. Court – September 20, 2021

https://www.pacourts.us/assets/opinions/Commonwealth/out/169CD20_9-20-21.pdf?cb=1

Real Estate Tax Sale Law, 72 P.S. §§5860.101-5860.803, does not require or entitle a successful bidder to notice of an owner’s objections to a tax sale. In In re: Tax Sale Held September 10, 2003 by Tax Claim Bureau of County of Lackawanna, 859 A.2d 15, 18 (Pa. Cmwlth. 2004) (Sposito), the Court specifically rejected the claim of a successful bidder that the tax claim bureau has the duty to give the successful bidder notice of an owner’s objections, or the responsibility to “file a petition to add [the successful bidder] as an additional party[.]” Id. To the contrary, the Tax Sale Law “does not make successful bidders, whose purchases have not been confirmed, parties to objection proceedings as a matter of course.” Sposito, 859 A.2d at 18. 

Likewise, it is not the responsibility of the owner who files objections under Section 607 of the Tax Sale Law to name the successful bidder as a party or serve him with a copy of the owner’s objection petition. In re 2005 Sale of Real Estate by Clinton County Tax Claim Bureau Delinquent Taxes, 915 A.2d 719, 722- 23 (Pa. Cmwlth. 2007). Rather, “successful bidders must petition to intervene in order to be considered parties in an objection proceeding challenging a confirmation nisi.” Id. at 723. Accordingly, the Court has established, quite specifically, that successful bidders “are not indispensable parties for purposes of Owner’s objections to the confirmation nisi.” Id. 

In summary, there is no language in the Real Estate Tax Sale Law to support Purchasers’ claim that they were indispensable parties to the proceeding that set aside the tax sale of Owner’s Property, for which they were the successful bidders. There is, however, binding precedent that has established that Purchasers, in their capacity as successful bidders, were not indispensable parties to that proceeding. Clinton County, 915 A.2d at 723. 

 

employment - at-will employment - interference with contractual relations

Salsberg v. Mann and Drexel University – Pa. Super. – en banc (5-3 decision) – September 14, 2021

 

Majority –  https://www.pacourts.us/assets/opinions/Superior/out/J-E01001-21o%20-%20104894484146523073.pdf?cb=1

The decision in Hennessey v. Santiago, 708 A.2d 1269, 1279 (Pa. Super. 1998) has been recognized as the controlling precedent on the availability of a § 766 claim for an at-will employee. See Haun v. Cmty. Health Sys., 13 A.3d 120, 125 n.1 (Pa. Super. 2011). In Hennessy, a former at-will employee filed suit against her employer for wrongful discharge. The former employee’s complaint also included a claim against a third-party for interfering with her at-will employment relationship. The Hennessy Court held that “an action for intentional interference with performance of a contract in the employment context applies only to interference with a prospective employment relationship whether at-will or not, not a presently existing at- will employment relationship.” Id., at 1279. 

 

Dissent - https://www.pacourts.us/assets/opinions/Superior/out/J-E01001-21do%20-%20104894484146523572.pdf?cb=1 Appellant has alleged unjustified interference of a third person with her existing at-will employment contract. . . and the weight of authority remains in favor of allowing a cause of action in these circumstances. E.g., Hall v. Integon Life Ins. Co., 454 So.2d 1338, 1344 (Ala. 1984); Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1041-44 (Ariz. 1985) (superseded in part by statute on other grounds as stated in Galati v. America West Airlines, Inc., 69 P.3d 1011, 1013 (Ariz. Ct. App. 2003)); Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 580 (Cal. 2020); Unistar Corp. v. Child, 415 So.2d 733, 734 (Fla. Dist. Ct. App. 1982);2 Guinn v. Applied Composites Eng’g, Inc., 994 N.E.2d 1256, 1267 (Ind. 2013); RTL Dist., Inc. v. Double S Batteries, Inc., 545 N.W.2d 587, 590 (Iowa Ct. App. 1996) Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706 N.W.2d 843, 849-50 (Mich. Ct. App. 2005) (quoting Feaheny, v. Caldwell, 437 N.W.2d 358, 363-64 (Mich. Ct. App. 1989)); Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn. 1991); Levens v. Campbell, 733 So.2d 753, 760 (Miss. 1999); Topper v. Midwest Div., Inc., 306 S.W.3d 117, 125-26 (Mo. Ct. App. 2010); Bloch v. The Paul Revere Life Ins. Co., 547 S.E.2d 51, 59 (N.C. Ct. App. 2001), review denied, 553 S.E.2d 35 (N.C. 2001); Jenkins v. Region Nine Housing Corp., 703 A.2d 664, 667 (N.J. Super. Ct. App. Div. 1997), certification denied, 709 A.2d 798 (N.J. 1998); McNickle v. Phillips Petroleum Co., 23 P.3d 949, 951 (Okla. Civ. App. 1999); Lewis v. Oregon Beauty Supply Co., 733 P.2d 430, 433 (Or. 1987); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994); Trepanier v. Getting Organized, Inc., 583 A.2d 583, 589 (Vt. 1990); Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 279 N.W.2d 493, 496 (Wis. Ct. App. 1979). 

 

 

UC - late appeal - nunc pro tunc - USPS tracking number

Barsky v. UCBR – Cmwlth. Court – August 31, 2021 – reported, precedential

 

Held: UCBR erred in denying nunc pro tunc late appeal, where 

• there was no postmark or postage meter mark on envelope
• appeal received one day after last appeal date

So appeal did not satisfy any of the conditions of 34 Pa. Code 101.82(b) regarding filing appeal by mail, even though logical mailing date showed that appeal was mailed before final appeal date. Verch v. UCBR, 676 Al2d 1290, 1291-5 (Pa. Cmwlth. 1996).

 

But, UCBR capriciously disregarded tracking number evidence that, while insufficient to establish timeliness of appeal under sec. 101.82of UCBR regulations, was “certainly relevant to nunc pro unc relief, under the extraordinary circumstances of the case.” Case remanded for consideration of whether nunc pro tunc relief was warranted.

An appeal nunc pro tunc is only warranted in extraordinary circumstances “involving fraud or some breakdown in the court’s operation,” or where the delay is quotations omitted) (quoting Bass v. Cmwlth., 401 A.2d 1133, 1135 (Pa. 1979)). [W]here an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and [the] appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.  Id. In reviewing a request for nunc pro tunc relief on non-negligent grounds, “[t]he question of whether there are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal conclusion to be drawn from the evidence and is reviewable on appeal.” Harris v. Unemployment Comp. Bd. of Rev., 247 A.3d 1223, 1231 (Pa. Cmwlth. 2021) (quotingV.S. v. DPW, 131 A.3d 523, 527 (Pa. Cmwlth. 2015)). It is well settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. UCBR., 645 A.2d 447, 449 (Pa. Cmwlth. 1994).

The extraordinary/exceptional circumstances of this case included (1) an appeal filed by mail during the COVID-19 pandemic, during which significant backlogs and errors in USPS’s mailing operations occurred; (2) claimant’s CPA mailing the appeal from home due to an at-risk health condition; and (3) Claimant seeking UC benefits in the first instance as a result of Governor Wolf’s mandated closure of non-essential business. Clearly, the factual setting surrounding Claimant’s application for unemployment benefits and the filing of Claimant’s appeal was anything but ordinary, and it warranted a detailed review of all the evidence of record. 

USPS Tracking number - a tracking number is a federally established and reliable means of demonstrating exactly when a piece of mail is sent and received through USPS. . . .The tracking number is clearly a part of the record, with the number being printed under the barcode on the certified mail sticker on the front of the envelope containing Claimant’s appeal. . . . Indeed, in entering the tracking number into the USPS website, this Court was able to discern quickly and easily that the appeal was mailed on June 1, 2020, or earlier.  This information, coupled with witness testimony, may have been sufficient to permit Claimant’s appeal nunc pro tunc, but the Board did not engage in such an analysis.