Bray v. Housing Authority of
Pittsburgh – Cmwlth. Court – en banc – April 21, 2015
Wednesday, April 22, 2015
public housing - right of applicant to hearing and appeal of denial - Bray v. Housing Authority
Sunday, April 12, 2015
custody - modification
R.S.
v. T.T. – Superior Court – April 10, 2015
The
lower court erred in modifying an order which gave parents roughly equal
physical custody. The “slight unpleasantness” that might be
involved in the 35-40 minute car ride to school when child was with father was
not a “special circumstance” and did not justify any modification.
Moreover, the trial court did not discuss any possible harm to the child
that would ensue in “uprooting “ the child from “the care pattern he has
known from a young age” and “dramatically reduc(ing)” father’s custody time,
especially considering the court’s finding that mother was less likely than
father to encourage a relationship with the other parent.
_______________________
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UC - wages - "direct seller" exception
Sydnor
v. UCBR – Cmwlth. Court – April 10. 2015
Claimant
held to be financially ineligible under Section 4(l)(4)(20) of the UC
Law, 43 P.S. sec. 753(l)(4)(20),
because he came within the “direct seller” exception for inclusion of wages as
a door-to-door sales person for Verizon FiOS.
The court rejected claimant’s argument that there should have been a
self-employment analysis, which the court said was “simply inapplicable”
because of the wage disqualification under the direct-seller provision.
“Wages”
are “all remuneration … paid by an employer to an individual with
respect to his employment.” 43 P.S. §753(x) (emphasis added).
“Employment” is “all personal service performed for remuneration by an
individual under any contract of hire.” 43 P.S. §753(l)(1). However,
there are various exceptions to “employment,” one of which is if an individual
is a “direct seller.” See 43 P.S. §753(l)(4)(20).
Here,
Claimant was not employed by the Company; rather, he was a “direct seller,”
which is an individual who is: (i)
engaged in the trade or business of selling or soliciting the sale of consumer
products to any buyer on a buy-sell basis or a deposit-commission basis, or any
similar basis which the United States Secretary of Treasury or his delegate
prescribes by regulations for resale by the buyer or any other person in the
home or otherwise than in a permanent retail establishment, or (ii) engaged in
the trade or business of selling or soliciting the sale of consumer products in
the home or otherwise than in a permanent retail establishment.
43 P.S.
§753(l)(4)(20).
Furthermore:
To be a
“direct seller,” (i) substantially all the remuneration whether or not paid in
cash for the performance of the services described under this definition must
be directly related to sales or other output, including the performance of
services rather than to the number of hours worked, and (ii) the services
performed by the person must be performed pursuant to a written contract
between the person and the person for whom the services are performed and the
contract provides that the person will not be treated as an employe with
respect to the services for Federal tax purposes. Id.
________________________________
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Tuesday, April 07, 2015
UC - employee v. indpt. contractor - burden of proof
Larry
Fry Drywall v. Office of UC Tax Assessment Services – Pa. Cmwlth. – April 7, 2015
– unreported memorandum opinion
The
court affirmed the OUCTAS finding that the employer had wrongly considered its
employees to be independent contractors.
The Office assessed the employer ~$36,000 for unpaid UC taxes.
“A
determination regarding the existence of an employer-employee relationship is a
question of law that depends on the unique facts of each case.” Kurbatov v.
Dep’t of Labor & Indus., Office of Unemployment Comp., Tax Servs., 29
A.3d 66, 70 (Pa. Cmwlth. 2011). “[T]here is a presumption in the [UC] Law that
an individual receiving wages is an employee and not . . . engaged in
self-employment.” Training Assocs. Corp. v. Unemployment Comp. Bd. of Review,
101 A.3d 1225, 1234 (Pa. Cmwlth. 2014) (quoting Pasour v. Unemployment Comp.
Bd. of Review, 54 A.3d 134, 137 (Pa. Cmwlth. 2012)).
The [UC
Law] goes very far, and properly so, and places a very heavy burden on the applicant
when it makes payment to anyone who has performed . . . services to excuse or
exempt that payment from the unemployment compensation tax. Few indeed are the
instances where that burden can be met. . . .
Kurbatov, 29 A.3d at 71 (quoting Am.
Diversified Corp. v. Bureau of Employment Sec., Dep’t of Labor & Indus., 275
A.2d 423, 426 (Pa. Cmwlth. 1971)). “This Court . . . emphasized the importance
of an employer supplying evidence to show that a claimant is engaged in
an independent business . . . .” Peidong Jia v. Unemployment Comp. Bd. of
Review, 55 A.3d 545, 549 (Pa. Cmwlth. 2012) (emphasis added).
Here,
the Department found that the employer did not furnish any of the documentation
requested by the Office to establish that its workers were independent
contractors, including any documentation showing that the workers had their own
businesses or were paying UC taxes.
“The test an employer must satisfy to overcome the
presumption of an employment relationship is simply not met here.” Peidong
Jia, 55 A.3d at 549.
----------------------
The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
If the case is not recent, the link in this posting may not
work. In that event, search for the case by name and date on Westlaw,
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where the opinions of all state appellate courts can be found.
Thursday, April 02, 2015
UC - voluntary quit v. discharge - capricious disregard
Wise
v. UCBR – Cmwlth. Court – March 25, 2015
Claimant
held to have quit her job when she failed to get proper certification for one
possible position and did not respond to employer’s offer of another position
within the time alloted.
Capricious
disregard
The
court rejected claimant’s allegation that the UCBR capriciously disregarded
competent evidence regarding several issues.
A capricious disregard of
evidence occurs where the fact finder willfully and deliberately disregards
competent and relevant evidence that one of ordinary intelligence could not
possibly have avoided in reaching a result. Spencer v. City of Reading
Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014). The Pennsylvania
Supreme Court has explained that review for capricious disregard of competent
evidence is an “appropriate component of appellate consideration in every case
in which such question is properly before the court.” Leon E. Wintermyer,
Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487
(Pa. 2002). In Wintermyer, the Supreme Court noted that where there is
substantial evidence to support the agency’s factual findings and those
findings support the legal conclusions, “it should remain a rare instance in
which an appellate court would disturb an adjudication based upon capricious
disregard.” Id. at 487 n.14. The standard announced in Wintermyer applies
whether one or both parties present evidence and, thus, overruled this Court’s
earlier-announced paradigm that appellate review for capricious disregard of
evidence was limited to the circumstance where the burdened party was the only
party to present evidence and did not prevail. See, e.g., Lautek
Corporation v. Unemployment Compensation Board of Review, 588 A.2d 1007,
1010 (Pa. Cmwlth. 1991).
Disturbing an agency’s
adjudication for a capricious disregard of evidence is appropriate only where
the factfinder has refused to resolve conflicts in the evidence, has not made
essential credibility determinations or has completely ignored overwhelming
evidence without comment. Hinkle v. City of Philadelphia, 881 A.2d 22,
27 (Pa. Cmwlth. 2005). In Hinkle, this Court, citing Wintermyer,
explained that:
“Capricious disregard” then is just another name for the
agency abusing its discretion and is an error of law when the agency fails to
give an indication that it has examined countervailing substantive testimony
that had to be considered at arriving at its decision.
The capricious disregard standard then is nothing more than a
shorthand way of referring to an amalgam of existing overlapping legal and
constitutional standards mentioned above that safeguard against arbitrariness
by state and local administrative agencies by requiring a meaningful
explanation of why the losing party’s overwhelming evidence was not accepted.
Id. (footnote omitted). An appellate court conducting a review
for capricious disregard of material, competent evidence may not reweigh the
evidence or make credibility determinations. Spencer, 97 A.3d at 842
(Pa. Cmwlth. 2014) (citing Wintermyer, 812 A.2d at 487-88).
Applying the above principles to the case, the court
held that the Board did not capriciously disregard competent and relevant
evidence. It did not ignore Claimant’s “overwhelming evidence” without comment.
Rather, the Board discussed and explained its decision on all relevant issues.
Voluntary quit
v. discharge
The court rejected claimant’s argument that she was fired and
did not voluntarily quit her job. Whether a claimant’s separation
from employment constitutes a voluntary resignation is a question of law
subject to this Court’s plenary review and will be determined from the totality
of the facts surrounding the cessation of employment. Middletown Township v.
UCBR, 40 A.3d 217, 224 (Pa. Cmwlth. 2012). A voluntary termination requires
a finding “that the claimant had a conscious intention to leave employment.” Procyson
v. UCBR, 4 A.3d 1124, 1127 (Pa. Cmwlth. 2012). A voluntary termination is
not limited to a formal or even an express resignation; it can be inferred from
the employee’s conduct. G.C. Murphy Co. v. UCBR, 471 A.2d 1295, 1297
(Pa. Cmwlth. 1984). An employee who leaves her employment without informing her
employer when or if she is planning to return may be held to have voluntarily
quit. Iaconelli v. UCBR, 892 A.2d 894, 896 (Pa. Cmwlth. 2006).
The
court agreed with the Board that the evidence show that claimant exhibited a
conscious intention to leave her employment by failing to respond to employer’s
offer of a position within the time specified, noting that there was a need for
a prompt decision by claimant, and that the employer tried to get in touch with
claimant numerous time and that claimant failed to respond.
_____________________________
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Tuesday, March 31, 2015
tax sale - reasonable efforts to locate taxpayer
777 L.L.P. v. Luzerne County TCB v. V. Mannino (Pa. Cmwlth March 30, 2015).
Judicial
tax sale vacated for failure to serve the taxpayer and failure to use
“reasonable efforts” to locate the taxpayer, where the tax claim bureau did not
conduct a search of current telephone directories, searched property records
only by property ID number, not the taxpayer’s name, and failed to thoroughly
review its own file to ascertain the taxpayer’s current address.
Tax sales - right to installment agreement - payment of at least 25% of taxes due
In Re: Sale by TCB of Bedford County of Tax Parcel G.14-0.00-007 - Appeal of Vignola (Pa. Cmwlth. March 30, 2015).
Where
an owner has paid at least 25% of the taxes due, the tax claim bureau has an
affirmative duty to inform the owner of the option to enter into an installment
agreement, and the failure to do so will invalidate a subsequent tax
sale. [citations omitted]
Sunday, March 22, 2015
UC - voluntary quit - firm offer of new job
Geraci v. UCBR – Cmwlth. Court – March 20, 2015 – unreported memorandum opinion - can be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code 69.414.
Claimant
who quit job to train for potential job held not eligible, since he had no firm
offer of employment.
The
court has consistently held that a firm offer of employment and its acceptance
constitutes a necessitous and compelling cause for quitting. Solar
Innovations, 38 A.3d at 1056. “‘The offer of employment . . . must
be definite’ . . . and ‘the claimant must act prudently with regard to
his employer.’” Id. (citations omitted). However, we have also
“consistently held that the mere possibility of obtaining another job, without
a firm offer of employment, is insufficient to establish that employment was
terminated for good cause.” Fernacz v. UCBR, 545 A.2d 995, 997 (Pa.
Cmwlth. 1988).
As a
matter of law, acceptance of a job that is contingent upon successful
completion of a training program for only the prospect of better employment, as
is the case here, does not constitute the requisite necessitous and compelling
cause to qualify for UC benefits under the Law. See Fernacz, 545 A.2d at
997. “[A]lthough ‘the claimant may have personal, economic, or career reasons
for making h[is] decision to leave the employer . . . that does not constitute
a necessitous and compelling cause for voluntarily quitting.’” Solar
Innovations, 38 A.3d at 1057 (citation omitted).
________________
This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/,
which is searchable and can be accessed without a password.
If the case is not recent, the link in this posting may not
work. In that event, search for the case by name and date on Westlaw,
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where the opinions of all state appellate courts can be found.
Friday, March 20, 2015
UC - self-employment not established
Isett
v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished memorandum opinion
Court
held that the claimant was not self-employe and thus continued to be eligible
for UC benefits.
Claimant
got benefits after being laid off from work when he returned after a disability
leave. Both before and after his leave
and layoff, claimant has done yard work for a neighboring child care
center. Claimant was initially granted
benefits, but the employer appealed and the referee and UCBR held that his
occasional work for the child care center made him self-employed, ineligible
for benefits, and subject to a non-fault overpayment. The Court reversed.
Burden of
proof on DOLI
Where
the Bureau initiates proceedings that result in a suspension of benefits based
on self-employment, as is the case herein, it is the Bureau, and not the
putative employer, who carries the burden of proof. Silver v. UCBR, 34
A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989
(Pa. Cmwlth. 1992). In such proceedings, where the claimant is already
receiving unemployment compensation benefits, the question is not whether the
work at issue would entitle the claimant to benefits, but whether the work at
issue disqualifies the claimant from further receipt of benefits he is
already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth.
2012) (emphasis added).
Self-employment
Pursuant
to Section 402(h), a claimant is ineligible for unemployment benefits in any
week “[i]n which he is engaged in self-employment.” While the
term “self-employment” is not
defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines
“employment,” in pertinent part, as:
Services performed by an individual for wages shall be deemed
to be employment subject to this act, unless and until it is shown to the
satisfaction of the department 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). This court has consistently held that before a claimant
will be declared to be self-employed, both elements of section 4(l)(2)(B) must
be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).
Claimant not
engaged in self-employment
It
is clear that Claimant was not customarily engaged in an independently
established trade, occupation or business.
He had cut the child care center law for years as a neighbor and that he
approached them to cut the lawn in order to rehabilitate his knee. Claimant
testified: He “was kind of feeling guilty to even get paid for [his services]
but [he] was trying to get a little bit of therapy for medical problem [knee . He thought by performing the services, this
is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas
or supplies, and used tools he acquired over the years from being in the
construction business when needed. Claimant testified that he never looked for
other mowing or landscaping jobs, never invested any money, did not advertise
or put out fliers, and did not try to solicit customers by word-of-mouth. He
testified: “My intention wasn’t to go into business, my intention was to get
[himself] a little bit in better physical shape and help out a little bit.” Claimant testified that he was available for
full-time employment and continued to look for work while he performed services
for Tiny Treasures and that the fact that he made an inquiry to obtain a quote
for liability insurance, in and of itself, is insufficient as a matter of law
to support the finding that he was customarily engaged in an independent trade,
occupation, profession or business. The
Court agreed.
The
evidence shows that Claimant did not advertise in any way, did not seek other
customers, did not invest any money nor purchase any equipment or supplies.
Claimant dutifully reported the sums he receive to the Bureau, consistent with
the Bureau’s own instructions in the regulations. Moreover, even where an
activity which generates a limited amount of income was not undertaken while
the claimant was still employed, such activity does not automatically make it
disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa.
Cmwlth. 1992). Claimant testified that the money he received for mowing was not
enough to either support himself or cover the cost of insurance, and that it
was never his intention to go into business for himself and that he continued
to look for full time employment.
The
evidence establishes only that Claimant’s work for the child care agency was on
the side to make extra money and not that of an individual customarily engaged
in a trade, occupation, profession or business. The Court has long recognized
the ability of an individual to accept occasional assignments of work. Thus,
“the fact that an unemployed person agrees to accept, and thereafter does
accept, an occasional offer of work is simply not enough to demonstrate that
said individual is customarily engaged in an independently established trade,
occupation, profession or business” that would disqualify him from receiving
unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth.
2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).
________________
The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
If the case is not recent, the link in this posting may not
work. In that event, search for the case by name and date on Westlaw,
Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/,
where the opinions of all state appellate courts can be found.
Tuesday, March 17, 2015
UC - willful misconduct - burden of proof - claimant testimony - duty of referee
Wagner
v. UCBR – Cmwlth. Court – March 11, 2015
This
claimant was hoisted by his own petard.
The
employer did not appear at the hearing, at which the issue was willful misconduct. Claimant did appear and testified. Some of the testimony was elicited by the
referee’s questions to claimant.
The
court rejected Claimant’s argument that the Referee should have adjourned the
hearing when Employer failed to appear and granted him unemployment
compensation. Claimant’s argument misconstrues both the assignment of the
burden of proof and the role of the Referee under the Law. A referee is charged with informing the
parties of their rights, the procedure to be followed, and with developing an
adequate record, which includes clearly establishing the allegations made and
the facts at issue to insure that compensation is paid in instances where a
claimant is eligible and that it is not paid where a claimant is ineligible
under the Law. Bennett v. UCBR, 445 A.2d 258, 259 (Pa. 1982); 1982); Hackler v. UCBR,
24 A.3d 1112, 1116 (Pa. Cmwth. 2011); Robinson v. UCBR, 431 A.2d 378,
379 (Pa. Cmwlth. 1981); see also 34 Pa. Code § 101.21.
The
referee is not required to “advise an uncounseled claimant on specific
evidentiary questions or points of law, nor need the referee show any greater
deference to an uncounseled claimant than that afforded a claimant with an
attorney.” Brennan v. UCBR, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (internal
citations omitted). In unemployment
compensation matters, “the assignment of the burden of proof to one or the
other party can only be understood as an indication of the quantum of evidence
required to sustain a result in a party’s favor. The question of the
sufficiency of the evidence must be examined against the complete record. The
effect of the claimant’s testimony remains the same whether presented before or
after an employer’s.” Vann v. UCBR, 494 A.2d at 1081, 1085 (Pa. 1985).
As this Court and our Supreme Court have repeatedly made clear, the referee is
not there to act as an advocate for the claimant and “any layperson choosing to
represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his
lack of expertise and legal training will prove his undoing.” Id. at
1086 (quoting Groch v. UCBR, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).
A claimant’s admissions are sufficient to carry an employer’s
burden. Sargent v. UCBR, 630 A.2d 534, 537 (Pa. Cmwlth. 1993) (“Employer
in this case did not present any evidence. Claimant, however, chose to testify
and [our] Supreme Court has made it clear that in such a situation a claimant’s
own testimony can be a basis to deny benefits.”); Robinson, 431 A.2d at
379 (“[claimant] himself admitted that he neither reported to work as
instructed on October 22 nor notified his employer of the reason for his
absence. It is, therefore readily apparent that claimant is guilty of willful
misconduct and that his employer has met its burden in that regard.”); Rodgers
v. UCBR, 397 A.2d 1286, 1288 (Pa. Cmwlth. 1979) (holding that the
claimant’s own testimony carried the employer’s burden of proof).
The evidence supporting the Board’s findings of fact consists
of documents submitted into the record by both Claimant and Employer, and
testimony offered by Claimant at the continued hearing and at the remand
hearing. Contrary to Claimant’s contention, Employer was not required to offer
testimony in order to carry its burden under the Law. Claimant had an
opportunity to object to the documentary evidence submitted by Employer and
declined to do so.
_________________________________
The opinion, though not
reported, may be cited "for its persuasive value, but not as binding
precedent." 210 Pa. Code 69.414.
If the case is not recent,
the link in this posting may not work. In that event, search for the case
by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/,
where the opinions of all state appellate courts can be found.
Monday, March 16, 2015
UC - 43 P.S. 829 - no collateral estoppel use of UC decision in later/separate case
Mathis v. Christian Plumbing and
Heating – ED Pa. – March 21, 2015
Plaintiff was not collaterally
estopped by an adverse result in a UC case, Mathis v. UCBR, 64 A.3d 293 (Pa.
Cmwlth. 2013), from suing former employer under Title VII of the Civil Rights
Act and the Pa. Human Relations Act for improperly terminating his employment
because of Plaintiff’s covering his work i.d. badge, which included language
that the company is a “ministry” and run “in a way most pleasing to the lord...”
The court held that the clear language of 43
P.S. sec. 829 precluded the application of collateral estoppel. Sec. 829 states that “[n]o finding of fact or
law, judgment, conclusion or final order made with respect to a claim for
unemployment compensation under this act may be deemed to be conclusive or
binding in any separate or subsequent action or proceeding in another forum.”
____________________
If the case is not recent, the link in this posting may not
work. In that event, search for the case by name and date on Westlaw,
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UC - willful misconduct - use of work phone/computer for personal business
Oyetayo
v. UCBR – March 4, 2015 – Cmwlth. Court
Claimant
disqualified for willful misconduct and violation of employer rule against
person use of work telephone and computer (email), after having receiving two
prior warnings about zero tolerance policy.
De minimis rule not applicable
after warning about strict enforcement.
While an
employee at Employer would normally be permitted to engage in the occasional
use of his work computer for personal email, Claimant was not a normal
employee; instead the Board found that Claimant had been issued written
warnings that directed him not to engage in any unauthorized use of
Employer’s resources for personal reasons. Claimant’s argument that his
personal email use fell within the de minimis exception therefore fails
because Employer had advised Claimant that his prior personal use of Employer’s
resources had exceeded what was allowed and any future use would be seen as a
violation of Employer’s rules.
Doing personal things at work
There is
no question that Claimant’s conduct was not merely negligent but rather of an
intentional and deliberate nature. Grieb v. UCBR, 827 A.2d 422, 426 (Pa.
2003). Moreover, this Court has on
numerous occasions determined that a claimant’s use of work time to engage in
personal affairs without authorization was willful misconduct even where not
prohibited by a specific work rule because it was contrary to reasonable
standards of behavior that an employer can expect from its employees. See,
e.g., Pettyjohn v. UCBR, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (holding that
access of internet for personal reasons during
working hours after being advised not to constituted willful misconduct); Baldauf
v. Unemployment Compensation Board of Review, 854 A.2d 689, 692 (Pa.
Cmwlth. 2004) (holding that the claimant engaged in willful misconduct by
accessing personal email and non-work related websites while being paid to
work); Wetzel v. UCBR, 370 A.2d
415, 417 (Pa. Cmwlth. 1977) (holding that the claimant, whose employment was
terminated for crocheting at work despite several warnings not to do so, had
engaged in willful misconduct). Furthermore, “[a] conclusion that the employee
has engaged in disqualifying willful misconduct is especially warranted
in...cases where...the employee has been warned and/or reprimanded for prior
similar conduct.” Ellis v. UCBR, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) ....Accordingly,
because Claimant knowingly violated Employer’s work rule and because Claimant
has not put forward any argument that he had good cause for violating the work
rule, we hold that the Board did not err in concluding that Claimant was
ineligible for benefits due to willful misconduct.
No duty to
provide copy of record absent request by Claimant
Claimant
cites no authority which imposes an affirmative duty on the Board to send a
claimant a copy of the record at the same time as it is sent to this Court. Instead, the applicable Board regulations
provide that “[i]n the event of an appeal from the decision of the Board to the
Commonwealth Court, a party may request a transcribed copy of the record
of the testimony, and it shall be furnished without charge.” 34 Pa. Code §
101.71 (emphasis added). The Board’s regulations further provide that: When an
interested party or his representative requests information from the
file of the Board in order to present and maintain the issues...in an appeal to
the Court, such information (including the hearing transcript, where the
record has been transcribed) shall be made available at a reasonable time to
the party and his representative, without charge,...for examination, copying
and making notations therefrom.
34
Pa. Code § 101.54(b) (emphasis added). As there is no allegation that either
Claimant or his attorney requested a copy of the record from the Board and the
Board denied such a request, the Board did not act inappropriately or deny
Claimant his due process rights by failing to send Claimant a copy of the
certified record.
_____________________
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password.
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tax sale - disputed facts - right to hearing - Battisti v. Tax Claim Bureau
Estate
of Filchner – Cmwlth. Court – March 9, 2015
Following
its decision in Battisti v. Tax Claim Bureau, 76 A.3d 111 (Pa. Cmwlth. 2013),
the court held that where a petition to set aside a tax sale raises disputed
issues of fact, the court must hold a hearing and take evidence, rather than
summarily resolving the facts on its own.
In
granting a party’s motion for judgment on the pleadings, the trial court denied
Taxpayer’s objections without an evidentiary hearing, and thereby denied
Taxpayer due process. Battisti, 76 A.3d at 116. Due process under the United
States and Pennsylvania Constitutions must be satisfied whenever the government
subjects a citizen’s property to forfeiture for nonpayment of taxes. Geier v.
Tax Claim Bureau of Schuylkill County, 588 A.2d 480 (Pa. 1991). Once Taxpayer
presents a prima facie challenge to the tax sale, the burden shifts to
the Tax Claim Bureau to prove strict compliance with the notice provisions of
the RETSL. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289-90
(Pa. Cmwlth. 1996). Where there is a factual dispute, a taxpayer is entitled to
an evidentiary hearing and remanded the case to the trial court.
___________________
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code 69.414.
If the case is not recent, the link in this posting may not
work. In that event, search for the case by name and date on Westlaw,
Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/
Wednesday, March 11, 2015
Therapeutic support services - medical necessity standard
C.M.
v. DPW – Cmwlth. Court – March 11, 2015 – unreported memorandum decision
TSS
services are medical services administered by the Department, not educational
services subject to administration by the State Board of Education or the
Department of Education and governed by regulations promulgated pursuant to the
IDEA. Therefore, the provision of TSS services is subject to the medical
necessity standard established in relation to the MAP program rather than the
IDEA’s least restrictive environment standard.
__________________
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code 69.414.
If the case is not recent, the link in this posting may not
work. In that case, search for the case by name and date on Westlaw,
Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/
Tuesday, March 10, 2015
UC - willful misconduct - ER-claimant agreement not an admission of wrongful conduct
Bennett
v. UCBR – Cmwlth. Court – March 4, 2015 – memorandum opinion – not reported
Private
agreement between employer and claimant to change job termination to 12-day
suspension is not an admission of the conduct that resulted in the suspension. It is merely a settlement between the parties. Without the agreement being admitted into
evidence and without testimony regarding the content of the agreement, the UCBR
cannot assume that claimant admitted violating the employer’s rules. There
was no testimony or other evidence in the record to support a finding that the
agreement constituted an admission of employer rules.
________________
If this case is not recent, the link in this posting may not
work. In that case, search for the case by name and date on Westlaw,
Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code 69.414.
Thursday, February 19, 2015
tax sale - partnership - notice to each partner/owner
Dwyer
v. Luzerne Co. Tax Claim Bureau – Cmwlth.Court – February 17, 2015
Commonwealth
Court affirmed lower court decision setting aside tax sale of partnership-owned
property where Partner/Owner B signed for certified mail notice sent to Partner/Owner
A – i.e., no notice delivered separately to non-signing partner A – and no
evidence in the record of authority of one to sign for certified mail for the
other.
The statutory
notice provision of the Law provides
that the Bureau shall give notice of the sale “[a]t least thirty (30) days
before the date of the sale, by United States certified mail, restricted
delivery, return receipt requested, postage prepaid, to each owner as defined
by this act.” 72 P.S. §5860.602(e)(1).
“Restricted delivery” is mail “delivered only
to the addressee or the person he specifically authorizes in writing to receive
his restricted delivery mail.” . . . Here, the receipt shows that the certified
mail addressed to Owner A was signed for by Owner B. “Even when a return receipt
is signed, the signature must belong to someone authorized by the owner to
accept certified mail.” . . . .There is nothing in the record evidencing Owner
B’s authority to sign for certified mail addressed to Owner A.
Because
Owner A did not sign for the certified mail addressed to him, in accordance
with section 607.1(a) of the Law, the Bureau was required to further
investigate his whereabouts. Specifically, section 607.1(a) of the Law requires
reasonable notification efforts when “mailed notification is either returned
without the required receipted personal signature of the addressee or under
other circumstances raising a significant doubt as to the actual receipt of
such notification by the named addressee . . . .” 72 P.S. §5860.607a(a).
Here,
the tax claim bureau conceded that although Owner A did not sign for the
certified mail addressed to him, the Bureau did not make any effort to discover
his whereabouts and notify him. Thus, the trial court properly concluded that
the Bureau failed to comply with the Law’s notice provision.
_____________________
If the case is not recent, the link in this posting may not
work. In that case, search for the case by name and date on Westlaw,
Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/
Wednesday, February 18, 2015
UC - willful misconduct - offensive language - de minimus conduct - provocation
Campbell
v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion
http://www.pacourts.us/assets/opinions/Commonwealth/out/369CD14_2-17-15.pdf?cb=1
One-time us of the word “bitch” toward a co-worker, in response to that employee’s threatening outburst, was de minimus and not disqualifying willful misconduct, even though use of abusive language violated ER rule.
Arnold v. UCBR,
703 A.2d 582 (Pa. Cmwlth. 1997), “offensive language directed by an employee to
an employer, if sufficiently provoked or de minimis, will not constitute
willful misconduct.” Id. at 584. Horace W. Longacre, Inc. v. UCBR, 316
A.2d 110 (Pa. Cmwlth. 1974), and Kowal v. UCBR, 512 A.2d 812 (Pa.
Cmwlth. 1986). Perez v. UCBR, 736
A.2d 737 (Pa. Cmwlth. 1999)
________________
If the case is not
recent, the link in this posting may not work. In that case, search for
the case by name and date on Westlaw, Lexis, Google Scholar, or the court
website http://www.pacourts.us/courts/supreme-court/court-opinions/
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code 69.414.
UC - willful misconduct - fighting
Gallo
v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion
http://www.pacourts.us/assets/opinions/Commonwealth/out/655CD14_2-17-15.pdf?cb=1
Physical altercation at work not willful misconduct where
* claimant acted in self-defense, after being pushed
* claimant was furthering ER’s interests by giving foreman’s instructions to co-worker
* incident lasted a matter of seconds
* claimant’s actions were reasonable under the circumstances
The court noted that the UCBR failed to analyze the reasonableness of claimant’s actions, and that the facts found by the UCBR did not support findings that claimant escalated the fight.
“[F]ighting is considered inimical to the best interests of the employer and, as such, willful misconduct.” Rivera v. UCBR, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). However, “[w]here an employee’s conduct is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it is not a willful disregard of standards of behavior that an employer has a right to expect.” Miller v. UCBR, 83 A.3d 484, 488 (Pa. Cmwlth. 2014). An employee’s actions may be reasonable under the circumstances where that employee acts in self-defense in response to another employee’s physical aggression against him. See Mula v. UCBR, 407 A.2d 477, 477 (Pa. Cmwlth. 1979) (recognizing that an employee has a right to defend himself).
Whether an employee’s actions are reasonable depends on the circumstances; our prior cases suggest such circumstances include the degree and duration of the employee’s actions. See Miller, 83 A.3d at 488 (holding that the claimant’s conduct was justified and reasonable where the entire physical altercation consisted of the other co-worker shoving the claimant and the claimant shoving the co-worker back); Peeples v. UCBR, 522 A.2d 680, 682-83 (Pa. Cmwlth. 1987) (holding that the claimant’s striking back at the employee who struck him was in self-defense, reasonable, and justified). Here, the circumstances suggest that Claimant’s actions were in self-defense and reasonable under the circumstances.
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