real property - tax sale - RETSL - waiver of personal services of notice of sale

Johnson v. Greene County Tax Claim Bureau – Cmwlth. Court – 1-16-24 – not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/266CD22_1-16-24.pdf?cb=1

 

Held: Tax sale was proper under Real Estate Tax Sale Law (RETSL), 72 P.S> sec. 5860.101 et seq., since

1. TCB complied with notice provisions of RETSL
2. TCB established good cause for waiver of personal service requirement

 

Good cause for waiver of personal service established, since

1. TCB twice made good faith efforts at personal service at the owner-occupied property
2. Objector called the TCB and was aware of the sale
3. Objector admitted having seen the notice of sale posted on the property

 

From the opinion

 

Standard of review – Appellate review in tax sale cases is limited to determining whether the trial court abused its discretion or erred at law. See Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006). When specifically reviewing a trial court’s decision to grant a tax claim bureau’s request to waive personal service, “we focus our inquiry on whether the trial court abused its discretion.” Appeal of Neff, 132 A.3d at 650. In considering whether a trial court abused its discretion, this Court looks to whether the trial court engaged in “a manifestly unreasonable exercise in judgment[] or [rendered] a final result that evidences partiality, prejudice, bias, or ill-will.” Allegheny Cnty. v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa. Cmwlth. 2009) (citation omitted). 

 

Actual notice of sale excuses strict compliance with notice provisions - While a tax sale is typically  void in the face of defective service, this Court has determined that “strict compliance with the notice requirements of Section 602 is not required when the [b]ureau proves that a property owner received actual notice of a pending tax sale.” Appeal of Neff, 132 A.3d at 645 (citing Sabbeth v. Tax Claim Bureau of Fulton Cnty., 714 A.2d 514, 517 (Pa. Cmwlth. 1998)). The trial court determined Objector had actual notice of the tax sale because Objector admitted to seeing the physical posting on the Property. Because Objector received actual notice, the Bureau was not required to show it satisfied Section 602’s certified mailing requirement. See id. 

 

The Tax Claim Bureau established good cause for waiver of personal service

The Petition alleged the Bureau made good faith efforts at personal service and did post the property for sale. Because the Bureau’s actions are cloaked in a presumption of regularity, we cannot say the Petition was facially defective. See Famageltto, 133 A.3d at 348. Therefore, we must determine whether the evidence the Bureau presented at the hearing on the Objections was sufficient to establish good cause to waive personal service under Section 601(a)(3). See id. at 348-89. 

In Appeal of Neff, this Court noted that while “good cause shown” is not defined in the Tax Sale Law, Pennsylvania courts have defined it to require a “substantial reason, one that affords a legal excuse.” Appeal of Neff, 132 A.3d at 650  (citation omitted). We also explained that what constitutes good cause shown will depend on the particular facts and circumstances in each case. Id. at 649-50. Finally, we noted “‘the determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion.’” Id. at 650 (citation omitted). 

Here, the Bureau established it attempted personal service on two occasions, once during the work week and once during the weekend, at different times of day. The Bureau also established it published notice of the tax sale and attempted to serve Objector through the mail on numerous occasions. In addition, the Bureau established it posted the Property and Objector had actual notice of the tax sale by virtue of seeing the posting. Under these circumstances, we cannot hold the trial court abused its discretion in determining the Bureau established good cause to waive personal service. 

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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).

 (a)  An unreported opinion of this Court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

UC - self-employment

Hope v. UCBR – Cmwlth Court – 1-16-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/1208CD22_1-16-24.pdf?cb=1

 

 

Held: UCBR decision that claimant was self-employed and liable for non-fault overpayment upheld, because

• Claimant controlled and directed his services as a tax consultant
• He chose the companies with whom he contracted
• He negotiated his pay rates
• He performed services on his own computer
• He most commonly received 1099 tax forms.

The decision has extended discussions of Starinieri v. UCBR, 289 A.2d 726 (Pa. 1972), and Lowman v. UCBRw, 235 A.3d 278 (Pa. 2020). 

UC - failure to subpoena crucial witness precludes claim of due process violation for inability to cross-examine that witness

Phila. Parking Authority v. UCBR – Cmwlth. Court – 1-17-24 – precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/116CD23_1-17-24.pdf?cb=1

 

Held: 

1. Where employer was not at initial hearing, failure to subpoena claimant at remand hearing precludes claim of violation of procedural due process for inability to cross-examine claimant, who testified at initial hearing.

2) Employer failed to prove claimant misconduct 

3) Court cannot reweigh the evidence, where the Board resolved conflicting evidence in favor of prevailing party

4) Where certain testimony is crucial to employer’s case, it must present that evidence directly, through a witness, and not by uncorroborated hearsay

 

UC - construction workers - employers v. indpt. contractors

Linda’s Cleaning Consultants v. Dept. of Labor and Industry – Pa. Cmwlth. – 1-18-24

https://www.pacourts.us/assets/opinions/Commonwealth/out/457CD21_1-18-24.pdf?cb=1

 

Linda’s Cleaning Consultants, Inc. (Employer) petitions for review of the March 26, 2021, decision and order of the Department of Labor and Industry (Department). The Department denied Employer’s petitions for reassessment of its required contributions to the unemployment compensation (UC) system after concluding that certain of Employer’s workers were employees and not independent contractors. Upon review, we affirm. 

 

Section 301 of the UC Law requires employers to pay contributions into the UC system based on their employees’ wages. See 43 P.S. § 781(a)(1).3 The UC Law defines “employment” as “all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as an officer of a corporation.” Section 4(l)(1) of the UC Law, 43 P.S. § 753(l)(1). “Once the Department shows that an individual is performing services for wages, as that term is defined under the [UC Law], the burden shifts to the taxpayer to bring itself within an exception” that would relieve the employer of having to pay contributions. A Special Touch v. Dep’t of Lab. & Indus., 228 A.3d 489, 503 (Pa. 2020) (quotation marks omitted). Employer contributions are a tax and therefore are to be construed in the employer’s favor, but the burden of disproving an individual’s employee status is heavy. Jia v. Unemployment Comp. Bd. of Rev., 55 A.3d 545, 548 (Pa. Cmwlth. 2012); Gulf & W. Corp. v. Dep’t of Lab. & Indus., Off. of Emp. Sec., 459 A.2d 1369, 1371 (Pa. Cmwlth. 1983). 

The relevant exception in both issues raised by Employer is whether an individual is an independent contractor as opposed to an employee. Subsection 4(l)(2)(B) of the UC Law states that an employer seeking to establish that an individual who has performed services for remuneration is an independent contractor must show that “(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. § 753(l)(2)(B). The employer must establish both factors, and whether it has done so is a question of law subject to our review. Tobey-Karg Sales Agency, Inc. v. Dep’t of Lab. & Indus., 34 A.3d 899, 903 (Pa. Cmwlth. 2011). 

Construction Workplace Misclassification Act, Act of October 13, 2010, P.L. 506, 43 P.S. §§ 933.1-933.17 (CWMA) 

 The UC Law includes a general provision to guide in determining whether an individual is an employee or independent contractor. If, however, the services rendered involve construction, then a preliminary determination must be made as to whether the more specific CWMA applies. In enacting the CWMA, “the legislature clearly intended to combat the deceptive business practice of classifying employees as independent contractors so as to avoid the expenses and responsibilities attending the employment relationship[.]” Dep’t of Lab. & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 187 A.3d 914, 924 (Pa. 2018) (Eastern Taste).

 

 

 

 

 

 

housing - reasonable accommodation - emotion support animal - "cautionary tale for landlords"

Jackson v. PHRC – Cmwlth. Court – 1-5-24 -  reported -  precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/46CD23_1-5-24.pdf?cb=1

 

Held:  PHRC finding favor of tenant upheld. The evidence established prima facie cases showing a) failure to grant reasonable accommodation  and b)retaliation against tenant.

 

Parties entered into lease on 2-1-19 for married couple, their two children, and Tenant’s adult dog, an emotional support animal (ESA). Things were ok until dog died in 6-19 and T asked L to approve a puppy ESA named Violet..  L refused, even though T offered to sign contract agreeing to replace carpet if it got damaged. When T again asked L to allow the puppy, L called her husband, who came home and called 911. L then put up no trespassing signs and had her lawyer send T a notice to quit. T moved out shortly thereafter and then filed a complaint with PHRC.

 

After a hearing at which T presented credible testimony and a detailed doctor’s note establishing her need for an ESA and L  did not present any evidence of undue hardship, the hearing examiner entered findings and a proposed order, which the PHRC adopted, directing that L a) cease and desist from discriminating against some who asks for a reasonable accommodation; b) cease and desist from retaliating against someone who engages in a protected activity; c) pay T’s reasonable moving expenses; d) pay T compensatory damages of $5,000; and e) pay the Commonwealth $3,000 as a civil penalty.

The concurring judge called this case “a cautionary tale for landlords. . . . [T]he PHRA provides an important bulwark against discrimination, including discrimination against those with mental health disabilities. Whether a landlord has one tenant or one thousand, he or she must comply with the PHRA. A landlord would be wise to familiarize himself or herself with all legal obligations and consult an attorney.”