UC - decisions - adequate findings

Cairns v. UCBR – Cmwlth. Court  - 89-18-23 – unreported decision  ***

 

 

 

 

While we are bound by the findings of the Board as the ultimate finder of fact, it is incumbent upon the Board to make findings of the underlying facts which are sufficiently definite and specific to enable this Court to pass upon the legal issues involved. Unemployment Comp. Bd. of Rev. v. Walton, 343 A.2d 70, 72 (Pa. Cmwlth. 1975). The ambiguity in the findings of fact in this case matters, because a per diem substitute accepts the uncertainty of continued employment, while a long-term substitute does not. Whether Claimant was, in fact, a per diem substitute for the entirety of the previous academic year or, after her initial hire at that position, became a long-term substitute for the balance of the academic year, or went back and forth as in Carlynton, is of critical importance  in determining whether the offer made represents, in the terms of the Board's regulation, a substantial reduction in "wages . . . and hours of work." 

In light of the forgoing, we vacate the order of the Board and remand for proceedings consistent with this opinion, the making of sufficiently definite findings of fact, and the entry of an order based upon those findings. 

 

Editor’s note:

Administrative decisions must have adequate findings and reasons.

16)  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."

                

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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 - notice of issues

Bat Conservation and Mgmt v. UCBR – Cmwlth. Court – en banc – reported – 6-8-23

 

Case remanded for new remand hearing on issue on which employer did not receive express notice – retaliatory termination rather than disparate treatment, for which the proof and issues are different.

 

Disparate treatment -   Disparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive [UC] benefits if [she] can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.  Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).

Retaliatory termination  --  In order to prove a prima facie case of retaliation, a complainant must show that: 1) [she] was engaged in a protected activity; 2) [her] employer was aware of the protected activity; 3) subsequent to participation in the protected activity, [she] was subjected to an adverse employment action; and[] 4) there is a causal connection between [her] participation in the protected activity and the adverse employment action. Spanish Council of York v. Pa. Hum[.] Rel[s.] Comm’n, 879 A.2d 391, 399 (Pa. Cmwlth. 2005). Upon showing a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)). Finally, the burden shifts back to the complainant to show that the employer’s proffered reasons are pretextual. Id.  Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 367 (Pa. Cmwlth. 2005). Employer argues it was not prepared to meet its shifting burden on remand because it had no notice that it would have to defend itself against a retaliation claim. The UCBR rejoins that the necessary notice was supplied by the 

 

PFA - past abuse relevant to present fear

B.K.P. v. J.R.B. – Pa. Superior – 9-25-23 – re4ported

https://www.pacourts.us/assets/opinions/Superior/out/J-S24002-23o%20-%20105680648240318046.pdf?cb=1

 

https://casetext.com/case/bkp-v-jrb

 

Held: Three-year protection order properly entered where

• Physical abuse occurred less than 2 years prior to current petition
• Prior physical abuse was a single incident which the court, in prior litigated PFA case, held to be “brutal....sexual assault”
• Current defendant conduct consisted of stalking

 

Citing E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020), the court held that “[p]ast are significant in determining the reasonableness of a PFA petitioner’s fear.”