employment - EMT - licensure - misstatement of fact on application - Dept. discretion as to penalty

Hynes v. Dept. of Health -  Cmwlth. Court – September 17, 2020 – unreported memorandum decision**

 

Held: Ever though applicant for EMT certificate admittedly failed to disclose a 20+ year-old convictions on his application, it was error for the Department of Health to deny his application and revoke his certification, because:

 

• “there is no material relevance between the convictions and his present ability to perform EMT duties
• Age of convictions – “Importantly, the conduct in question occurred 25 years ago”
• In spite of applicant’s conduct, the Dept. had discretion about the mature of the disciplinary action against applicant
• The Department “committed a manifestly unreasonable exercise of judgment” in revoking EMT certification, given applicant’s mitigating evidence

 

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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.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

 

UC - referee decision - re-opening - good cause - written request

Massie v. UCBR – Cmwlth. Court – June 1, 2021 – reported decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/902CD20_6-1-21.pdf?cb=1

 

 

Held: It was error for the referee to re-open a case after an initial hearing, at which only the claimant appeared, where the employer had a post-hearing oral (voicemail), pre-decision communication with the referee but did not

            - submit a written notice asking for the case to be re-opened

            - set out reasons for failure to attend that constitute “proper cause”

all of which is required by 34 Pa. Code sec. 101.24(a).

 

Reopening - The regulation at 34 Pa. Code §101.24(a) does not authorize a referee to reopen the record on her own motion. “Agencies and their agents have only those powers that are conferred on them by the legislature in their enabling statute or authorized regulations.” County of Allegheny Orphans’ Court/ v. UCBR, 220 A.3d 730, 736 (Pa. Cmwlth. 2019) The “authority to reopen the record and further develop the evidence in the interest of justice is not afforded to a referee.” Id. Rather, that authority has been conferred solely on the Board. Moreover, even assuming that a voicemail message constituted an “implicit” request to reopen the record, the request did not satisfy the regulation at 34 Pa. Code §101.24(a). A request to reopen the record “shall be in writing” and must explicitly recite the party’s good cause for missing the hearing.  The voicemail message in this case satisfies neither requirement. 

Willful misconduct/voluntary quit - It was error for the Referee to reopen the record sua sponte. County of Allegheny Orphans’ Court, 220 A.3d at 736. Further, “the referee is not the ultimate fact-finder to whom discretion in developing an adequate record may be implied.” Id. The Board has this responsibility. The Referee exceeded his authority in reopening the record on his own initiative. The Board erred in not limiting the record to the evidence admitted during the initial hearing, at which only the claimant appeared and gave evidence, none of which supported a factual finding that the claimant voluntarily quit his job or committed willful misconduct.