admin. law - findings and reasons

Appeal of Apex Properties – Cmwlth. Court – May 18, 2022 – ** unreported memorandum decision

 

In this zoning variance case, the court reversed and remanded because of lack of findings and reasons, as required by 2 Pa. C.S. § 555, which requires that “[a]ll adjudications of a local agency shall be in writing [and] shall contain findings and the reasons for the adjudication . . . .”

 

The court said that it could not address the merits of Apex’s arguments on appeal, because of “the substantive deficiencies of the Board’s Decision. In this instance, the Board did not explain in its decision how or why it came to the conclusion that Apex had failed to satisfy its burden of proof. Instead, the Board merely summarized the facts, stated the legal standard for determining whether a variance application should be approved, and then flatly concluded that Apex had not satisfied that standard. There is thus no way for us to clearly discern the reasoning underpinning the Board’s conclusions.

Furthermore, it appears that the Board improperly reviewed the party’s steep slope variance application using the Zoning Code’s standards for use variance, a different and more stringent variance. 

Given all of this, the court held that the Board failed to provide adequate “findings and . . . reasons for [its] adjudication,” 2 Pa. C.S. § 555, and did not “explain its decision in sufficient detail to permit meaningful appellate review.” Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1389 (Pa. 1985).  Accordingly, the court vacated the board order and remand the matter with instructions that it issue a new, legally sufficient adjudication, through which it must properly articulate its reasons for denying Apex’s variance application. See Troiani Grp. v. City of Pittsburgh Bd. of Appeals, 260 A.3d 1006, 1014-15 (Pa. Cmwlth. 2021).

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - partial week compensation - firing prior to effective date of resignation - referee duty to develop record - fault OP, claimant state of mind

Gribshaw v., UCBR – Cmwlth. Court – en banc - May 10, 2022 – **unreported memorandum opinion

 

Held: Board decision against claimant reversed, case remanded, for reasons set out below.

 

1 – Partial week compensation  - firing prior to effective date of resignation – unconventional work schedule

There are no provisions in the UC Law that address a claimant’s eligibility for partial week compensation. Thus, it is the general rule that where a claimant commits a disqualifying act, at any point in the benefit week, the claimant shall be ineligible for benefits. DeMoss, 454 A.2d at 1148.  The UC Law defines “week” as “any calendar week ending at midnight Saturday, or the equivalent thereof[.]” 43 P.S. §753(z). The phrase “the equivalent thereof” is applicable here.The phrase clearly implies recognition by the General Assembly that not all full-time employees work traditional, 40-hour schedules and that some full-time employees will work unconventional schedules.  

Based on our interpretation of the phrase “the equivalent thereof” in Section 4(z) of the UC Law, it would be unfair to penalize an employee who commits a disqualifying act only after she would have completed her unconventional, full- time schedule but for the employer’s conduct. Under such circumstances, we decline to impose a per se rule that prohibits an employee from receiving benefits. Thus, if Claimant can establish that she would have completed her unconventional, full-time schedule prior to her resignation, but for the termination by Employer, then she may be entitled to benefits for the period ending May 30, 2020. 

2 – Referee failed to develop the record –

“Where a party is not represented by counsel, the tribunal before whom the hearing is being held should advise [her] as to [her] rights, aid [her] in examining and cross-examining witnesses, and give [her] every assistance compatible with the impartial discharge of its official duties.” 34 Pa. Code § 101.21(a). While the referee “need not advise a party on evidentiary questions or on specific points of law,” the referee “must act reasonably in assisting in the development of the necessary facts.” Hackler v. Unemployment Comp. Bd. of Rev., 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011). In determining whether the referee has given a pro se claimant reasonable assistance at an evidentiary hearing, the Court considers whether the referee is guiding the parties to bring out facts of which the referee knows or should know. Id. at 1116.  Claimant brought her unconventional work schedule to the attention of the Referee when she initiated her appeal. 

However, the Referee failed to question Claimant regarding her shift schedule. In our view, the Referee was on notice that Claimant worked an unconventional schedule and should have assisted Claimant in developing the record in this regard. Accordingly, we remand to the Board with instructions to remand to the Referee for further fact-finding to ascertain Claimant’s unconventional schedule.

3 – fault overpayment – no finding on claimant’s state of mind

 Section 804(a) of the UC Law provides that if a person received unemployment compensation benefits due to his or her “fault,” the claimant is responsible for repaying the amount received in error plus interest. 43 P.S. §874(a). The word “fault” within the meaning of Section 804(a) connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches. Narducci v. UCBR, 183 A.3d 488, 497 (Pa. Cmwlth. 2018). Conduct that is designed to improperly mislead the Department is sufficient to establish a fault overpayment. Id. In order to find fault, the Board must make some findings with regard to a claimant’s state of mind. Id. A finding of fault is appropriate where a claimant fails to disclose earnings and is aware of an obligation to do so. Summers v. UCBR., 430 A.2d 1046 (Pa. Cmwlth. 1981). 

Here, the Board made no finding as to Claimant’s state of mind or whether she intended to deceive the Department. See Board’s Decision/Order, 10/23/20. Moreover, Claimant testified before the Referee that she was unaware that she had to report that she resigned because she believed that she had been terminated. See N.T. at 6. Without a finding as to Claimant’s state of mind and in light of Claimant’s testimony, we conclude that the Board erred when it determined that Claimant was liable for a fault overpayment. 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

 

UC - willful misconduct - failure to get flu shot, as required by ER rule - no good cause

Brown v. UCBR – Cmwlth. Court – reported, precedential decision - 

https://www.pacourts.us/assets/opinions/Commonwealth/out/1306CD18_5-5-22.pdf?cb=1

 

Held: Claimant, a senior nursing assistant at Children’s Hospital of Philadelphia,  committed willful misconduct by failing to get annual flu vaccine or, in the alternative, provide a religious or medical reason for not getting vaccinated – as set out in the employer’s 2012 rule.

The employer rule was reasonable – 

As a children’s hospital, employer had a legitimate interest in  protecting the health and safety of its patients. Employer made a business decision that requiring its employees to be vaccinated against the flu each year was necessary to protect its patients’ health.. See Rebel v. UCBR., 723 A.2d 156, 159-60 (Pa. 1998) (recognizing that “[t]he creation of rules and requirements that govern the workplace is the prerogative of the employer” and that “[a]n employer has the right to make decisions as to how [it] is going to run [its] business”) (emphasis added). 

Claimant did not have good cause for violating the employer rule – 

Any legal relationship that a person voluntarily enters into can, and usually does, diminish some common law right he could otherwise exercise with impunity: be the right personal or proprietary. Virtually every legal relationship assumed by a person creates duties and obligations to the other party that are not owed to people outside the relationship. Such a relationship is that of employee and employer. An employee owes his employer, among other duties, a reasonable level of cooperation regarding matters that are important to the employer’s interest. . . . [I]f an employer’s request can be deemed circumstantially reasonable, after considering the burden to the employee, then the employee has an implied obligation to cooperate. Although there might be practical reasons that can justify an employee’s refusal to cooperate, such noncompliance cannot be predicated upon asserted common law personal and property rights. As to employer requests that are reasonable in the above sense, the employee has waived those rights as a basis for noncompliance; [she] waived them when [she] voluntarily assumed the legal relationship with [her] employer.  Simpson, 450 A.2d at 311 [emphasis omitted]) accord Rebel, 723 A.2d at 158-59. 

With regard to Claimant’s informed consent argument, it is true that Claimant has a legal right, as a patient, to refuse a vaccine or other medical treatment. However, Claimant was not Employer’s patient; she was its employee. By voluntarily entering into an employment relationship with Employer, Claimant was obligated to comply with Employer’s reasonable directives related to its business interests. See Simpson, 450 A.2d at 311 (recognizing that an employee waives certain legal rights as a basis for noncompliance with a reasonable employer directive when she “voluntarily assumed the legal relationship with [her] employer”). 

While Claimant had a right to choose to not be vaccinated for a non-religious, non-medical reason, she was notified and aware that, under Employer’s policy, that choice would have a consequence: termination of her employment. . . . Claimant cites no authority for the proposition that an employee can refuse a vaccine as an express condition of employment  . . . .“[C]laimant’s mistaken understanding of her legal rights does not justify her refusal to comply with [E]mployer’s reasonable request.” . . .; see Rebel, 723 A.2d at 159-60 (holding that the claimant’s refusal to submit to drug testing pursuant to his employer’s policy, on the ground that the drug policy violated his right to privacy, was willful misconduct under Section 402(e) of the Law).