UC - voluntary quit - demotion

RIO Supply Inc. v. UCBR – Cmwlth. Court – September 18, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1939CD14_9-18-15.pdf?cb=1

 

Following Allegheny Vally School v. UCBR, 697 A.2d 243 (Pa. 1997) and Diversified Care Management v. UCBR, 885 A.2d 130 (Pa. Cmwlth. 2005) , the Court held that

 

- an unjustified demotion is a necessitous and compelling reason to quit a job

- hearsay evidence alone is not competent evidence to justify a demotion

- “substantial change” analysis does not apply to a demotion case

- requiring the employer to present evidence that the demotion was justified does not improperly shift the burden of proof

 

Generally, necessitous and compelling cause exists when there is real and substantial pressure to terminate one’s employment that would compel a reasonable person to do so under similar circumstances, Wert, and a claimant must show that he acted with ordinary common sense in quitting, made a reasonable effort to preserve his employment, and had no real choice but to leave his employment. Cowls v. UCBR, 427 A.2d 722, 723 (Pa. Cmwlth. 1981).  However, the Supreme Court made clear in Allegheny Valley School that a determination of necessitous and compelling cause in the case of a voluntary termination after a demotion does not consider the general factors set forth above but focuses solely on the justification for the demotion.

 

In light of this precedent, it is clear that a demotion premised on an employee’s inability to perform his job responsibilities is justified and does not constitute a necessitous and compelling reason to quit.  Conversely, a claimant will have necessitous and compelling reasons to voluntarily terminate employment if the demotion was unjustified.

 

A claimant bears the burden to demonstrate that his voluntary termination of employment was based upon a necessitous and compelling reason. Wise v. UCBR, 111 A.3d 1256, 1264 (Pa. Cmwlth. 2015). The Board specifically referenced this burden in its opinion. However, as the Board also noted, a claimant meets this burden in demotion cases by establishing that the demotion was not justified. Allegheny Valley School.

 

In the present case, Claimant testified that there was no reason, including any disciplinary reason, for his demotion. Employer sought to rebut Claimant’s testimony by offering testimony that Claimant’s demotion was premised on a conversation with a driver who was resigning.  This was the only evidence submitted by Employer relating to Claimant’s demotion.   The failed to present this driver as a witness or otherwise attempt to corroborate this statement by a third party. As a result, the Board characterized this testimony as hearsay.

 

The law is well settled that hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record. Stugart v. Unemployment Compensation Board of Review, 85 A.3d 606, 608 (Pa. Cmwlth. 2014) (citing Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). However, a finding of fact based solely upon hearsay will not stand. Borough of Grove City v. Unemployment Compensation Board of Review, 928 A.2d 371, 374 (Pa. Cmwlth. 2007).

 

 

 

 

 

schools - free transportation - two difft. parental residences w/in same district

Watts v. Manheim Twp. School District – Pa. Supreme Court – Augusut 26, 2015

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-25-2015mo%20-%201023370585289948.pdf?cb=1

 

We granted review to consider whether the Public School Code of 1949mandates that a school district provide free transportation to a student from two different

residences where the student’s parents share physical custody of the student and both parents reside within the school district. The Commonwealth Court held that the

Manheim Township School District (“the School District”) must provide transportation to both parents’ residences.

 

For the reasons set forth herein, we agree that the School District is required to provide free transportation to and from both parents’ residences in this case. Accordingly, we affirm the decision of the Commonwealth Court.

FMLA - deficient request - opportunity to cure

The petition for rehearing filed by appellee Lehigh Valley Hospital Network in the above-entitled case having been submitted to the judges who participated in the decision of this Court, it is hereby O R D E R E D that the petition for rehearing by the panel is granted. The opinion and judgment entered June 22, 2015 are hereby   V A C A T E D.1A subsequent opinion and judgment will be issued.


http://www2.ca3.uscourts.gov/opinarch/141772po.pdf

_______________________________________


Hansler v. Lehigh Valley Hospital Network – 3d Cir. – August 19, 2015

 

http://www2.ca3.uscourts.gov/opinarch/141772p1.pdf

 

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA” or the “Act”), 29 U.S.C. § 2601 et seq.1 Specifically, Hansler submitted a medical certification requesting leave for two days a week for approximately one month. As alleged in the complaint, the medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.

 

Lehigh Valley cited excessive absences and informed her that the request for leave had been denied. Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, by alleging that Lehigh Valley terminated her instead of affording her a chance to cure any deficiencies in her medical certification, Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.

 

 

UC - willful misconduct - progressive disciplinary system

Philadelphia Corp. for Aging v. UCBR – Cmwlth. Court – August 5, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/11CD15_8-5-15.pdf?cb=1

 

Employer did not satisfy its burden of proving willful misconduct where it did not follow its own progressive disciplinary policy (PDP) in terminating claimant’s employment.   The employer presented no evidence that its PDP permitted it to reinstate claimant’s probationary status, where claimant had completed probationary period and became regular employee subject to PDP.

 

“Where an employer has established a specific rule applicable to all employees, it must follow its own progressive discipline policy when disciplining specific employees.” Looney v. Unemployment Compensation Board of Review, 529 A.2d 612, 614 (Pa. Cmwlth. 1987.)

 

Employer is correct that it can legally terminate employment of an at-will employee without strictly adhering to its Disciplinary Actions Guide; however, Employer relies on wrongful termination cases, which do not discuss eligibility for UC benefits, in its attempt to extend that proposition to the instant UC case.  UC Law, on the other hand, examines whether an employer adheres to its established policy in disciplining or terminating an employee because “promulgation of specific rules puts employees on notice that the employer will not consider such conduct to be adverse to its interest until the requisite number of violations have been committed.” PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). If an employer does not follow its disciplinary policies when discharging a claimant, we have held that the employer has consequently not established, for purposes of UC Law, “that the discharge was for willful misconduct related to [the] [c]laimant’s work.” Id. In these circumstances, the claimant will not be deemed ineligible for UC benefits pursuant to Section 402(e) of the Law notwithstanding the employer’s prerogative to discharge at-will employees for any number of reasons.

 

Here, Employer does not address the Referee’s finding that, after Claimant successfully completed probation on December 22, 2013, she became a regular employee subject to the rights and protections set forth in Employer’s personnel handbook, including being disciplined in accordance with the Disciplinary Actions Guide. Employer has provided no record evidence of the disciplinary procedures, as provided for in its Disciplinary Actions Guide, or specified the basis upon which it could reinstate a 90-day probationary period for a regular employee who is tardy or absent in violation of Employer’s rules.6 Because Employer did not proffer the Disciplinary Actions Guide or any testimony of any other procedures it follows as record evidence, there was no evidence to support Employer’s argument that it could reinstate Claimant’s probation as it did. The Board, therefore, could consider Claimant as a regular, non-probationary employee for purposes of Employer’s disciplinary policy, and there was no evidence that the policy provided for termination under the facts found in this case.

____________________

 

This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414. – soon to be Rule 3716 ***

 

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/

 

 

 

UC - negligence v. willful misconduct - prior warnings - lack of findings - remand

Shadowfax Corp. v. UCBR – Auust 4, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2121CD14_8-4-15.pdf?cb=1

 

The court remanded the case for findings about the employer’s alleged prior warning to claimant about her job performance.   Claimant was an activities coordinator at a mental health facility.  She was fired after she forgot to take one of the residents on a field trip, claiming to have inadvertently/negligently left him behind.

 

Mere negligence or inadvertence on its own does not rise to the level of willful misconduct. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). Rather, willful misconduct requires “the additional element of an intentional disregard of the employer’s interests.” Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 626 n.3 (Pa. 1993). However, repeated conduct of an employee in the face of multiple warnings will support a finding of willful misconduct. Scott, 36 A.3d at 648.   

 

The employer  presented evidence that Claimant had been previously warned concerning issues with her supervision of individuals under Employer’s care.   The Board capriciously disregards evidence when it “willfully or deliberately ignore[s] evidence that any reasonable person would have considered to be important.” Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013). Although the Board is the ultimate fact-finder when it comes to resolving evidentiary conflicts and making credibility determinations, the Board may not willfully ignore evidence when making credibility determinations. Id. Here, the referee’s findings of fact, which the Board adopted and incorporated, make no mention of the repeated warnings. Although the referee found Claimant’s testimony credible that she inadvertently left the resident at Employer’s facility, neither the Board nor the referee expressly considered Claimant’s previous warnings regarding supervisory concerns in analyzing whether her actions constituted willful misconduct.

 

In unemployment cases, the Board is the ultimate fact-finder empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).    However, the Board in this case did not make any findings or determinations based on Claimant’s prior received warnings and did not make any credibility determinations concerning Employer’s witnesses. As reflected in Scott, supra, these findings are necessary to a determination of whether Claimant’s actions rise to the level of willful misconduct.   We reiterate that it is the Board’s duty and functional purpose to assign credibility and weight determinations to the evidence presented. See Wardlow v. Unemployment Compensation Board of Review, 387 A.2d 1356, 1357 (Pa. Cmwlth. 1978). The Board’s failure to do so impedes our ability to conduct meaningful appellate review and requires that the case be remanded for such findings.

 

___________________

 

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/

 

 

 

MERS - recorder of deeds v. MERS - 3d Cir.

Montgomery Co. Record of Deeds v. MERSCORP – 3d Cir. – August 3, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144315p.pdf

 

In 2011, Appellee Nancy J. Becker, the Recorder of Deeds for Montgomery County, Pennsylvania , brought this action on behalf of herself and other similarly situated county recorders of deeds in Pennsylvania against MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc., entities associated with the MERS System (“MERS”), a national electronic registry system for mortgage loans.  The Recorder sought to recover millions of dollars in unpaid recording fees, contending that the MERS entities have unlawfully failed to pay such fees in violation of Pennsylvania law, 21 Pa. Cons. Stat. Ann. § 351. Because we conclude that § 351 does not create a duty to record all land conveyances, a key premise on which the Recorder’s claims were and are based, we will reverse.

 

We will also deny the Recorder’s motion for certification of two issues to the Supreme Court of Pennsylvania. The answer to the issue of state law that decides this case, at least before us, is so clear that we would be abdicating our responsibilities by punting. We recognize, of course, that were the Supreme Court at some point to answer the question differently, that decision would control. Cf. County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947, 951 (8th Cir. 2014) (declining to certify issue to the state’s highest court); Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 735 (7th Cir. 2013) (same).

expungement - founded report

DM v. DPW – Cmwlth Court – August 3, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1463CD14_7-27-15.pdf?cb=1

 

The court upheld DPW’s dismissal of D.M.’s (Petitioner) appeal to expunge a founded report of child abuse maintained in the ChildLine Registry pursuant to the Child Protective Services Law (CPS Law). 

 

It rejected arguments that (i)the record from Petitioner’s criminal proceeding did contian sufficient facts to serve as the basis for a “founded” report of child abuse;  and (ii) that a report of suspected child abuse based upon court action must be reported as “unfounded” if it is not finalized within sixty (60) days of the date of criminal sentencing.

 

The subject child was seventeen years old at the time of the events at issue and a resident at a facility for adolescents.   Petitioner was employed at the residential facility and in his capacity as a staff member and supervisor was responsible for Child’s welfare.

 

Petitioner pleaded no content to a harassment charge.  The information filed by the District Attorney stated that the harassment charge was based upon the following:

with intent to harass, annoy, or alarm another person, [Petitioner] did communicate to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures, in that [Petitioner] did state to a seventeen (17) year old female victim “I bet you don’t shave your [p---y].” and/or did ask the victim what kind of underwear she was wearing and/or did grab his penis in front of the victim while stating “I bet you can’t handle this.”

disability - step 2 - severity

O’Keefe v. Colvin – ED Pa. -  July 20, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0633P.pdf

 

 The Court will sustain O’Keefe’s objection that the Administrative Law Judge erred in holding his mental impairment did not meet the standard of severity in step two of the five-step sequential evaluation process used to determine if an individual is disabled.   Accordingly, O’Keefe’s request for review will be granted, and this case will be remanded to the Commissioner for further review consistent with this Memorandum.

 

The ALJ found at step two of the analysis that O’Keefe’s obesity was a severe impairment and that his hypertension and fatty liver disease, when combined, were also severe impairments. The ALJ also concluded, however, that O’Keefe’s affective disorder was best described as depression, NOS (not otherwise specified), and was nonsevere.

 

O’Keefe asserts that impairment severity is a “de minimis” inquiry and an impairment must be found severe if it imposes anything more than a minimal effect on claimant’s ability to work. He argues the ALJ failed to properly assess and weigh the material health evidence, and the ALJ did not properly analyze the expected duration of O’Keefe’s mental impairments despite evidence that his medical condition steadily declined after he entered a formal mental health center. The Court agrees and finds the ALJ did not use the appropriate standard when finding O’Keefe’s mental impairment was not severe.

 

“The burden placed on an applicant at step two is not an exacting one,” and “an applicant need only demonstrate something beyond ‘a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing Soc. Sec. Admin. Program Policy Statement, SSR 85-28, 1985 WL 56856, at *3 (1985)); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (“If the evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process should continue.”). Further, “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant.” McCrea, 370 F.3d at 360 (citing Newell, 347 F.3d at 546-47).

 

In making his decision as to disability, the ALJ does not have discretion to reject a medical expert’s opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical evidence, and he cannot “supplant[] the opinions of [the claimant’s] treating and examining physicians with his personal observation and speculation.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ must give the opinions of a claimant’s treating physician “substantial and at times even controlling weight.” See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 (3d Cir. 2008) (citation omitted). If rejecting a treating physician’s opinion outright, he may only do so “on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317 (citations and internal quotation marks omitted). In other words, the ALJ may not substitute his lay opinion for the medical opinion of a treating physician, especially in cases involving mental disabilities. See Id. at 319; Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014).

 

If an ALJ believes that the submitted reports are conclusory or unclear, it is “incumbent upon the ALJ to secure additional evidence from another physician.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); see also Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (“[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.”). According to SSA policies, the ALJ “must obtain an updated medical opinion from a medical expert” when additional medical evidence is received that “may change the State Agency’s medical or psychological consultant’s findings.” SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996); Morales, 225 F.3d at 319-20; accord 20 C.F.R. § 416.912(e) (stating that an ALJ may ask claimant to attend a consultative exam if evidence from claimant’s own medical sources are insufficient or nonexistent); 20 C.F.R. § 404.1517 (explaining if a claimant’s medical sources cannot or will not provide sufficient medical evidence about claimant’s impairment, an ALJ may ask the claimant to have one or more physical or mental examinations).

 

consumer - negligent misrepresentation

Gongloff Contracting v.  Kimball & Associates – Pa. Super. – July 8, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A13018-15o%20-%201022769965009462.pdf?cb=1

 

 

The elements of a common law claim for negligent misrepresentation are:

 

“(1) a misrepresentation of a material fact; (2) made under circumstances in

which the misrepresenter ought to have known its falsity; (3) with an intent

to induce another to act on it; and (4) which results in injury to a party

acting in justifiable reliance on the misrepresentation.” Bilt-Rite, 866 A.2d

at 277 (quoting Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999)). Negligent

misrepresentation differs from intentional misrepresentation “in that the

misrepresentation must concern a material fact and the speaker need not

know his or her words are untrue, but must have failed to make a

reasonable investigation of the truth of these words.” Bortz, 729 A.2d at

561.

 

Pennsylvania law generally bars claims brought in negligence that

result solely in economic loss. David Pflumm Paving & Excavating, Inc.

v. Foundation Services Company, 816 A.2d 1164, 1168 (Pa. Super.

2003) (“This Court has consistently denied negligence claims that cause only

economic loss”). However, a narrow exception is found in Section 552 of the

Restatement (Second) of Torts entitled, “Information Negligently Supplied

for the Guidance of Others,” and provides:

 

(1) One who, in the course of his business, profession or

employment, or in any other transaction in which he has a

pecuniary interest, supplies false information for the guidance of

others in their business transactions, is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon

the information, if he fails to exercise reasonable care or

competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1).

 

 

In Bilt-Rite, the Pennsylvania Supreme Court adopted Section 552

and held that it applied in:

 

cases where information is negligently supplied by one in the

business of supplying information, such as an architect or design

professional, and where it is foreseeable that the information will

be used and relied upon by third persons, even if the third

parties have no direct contractual relationship with the supplier

of information.

 

866 A.2d at 287. The adoption of Section 552 was not meant to “supplant[]

the common law tort of negligent misrepresentation, but rather, [to] clarify[]

the contours of the tort as it applies to those in the business of providing

information to others.” Id.

 

debt collection - fdcpa - "materiality"

Jensen v. Pressler & Pressler – 3d Cir. – June 30, 2015

 

http://www2.ca3.uscourts.gov/opinarch/142808p.pdf

 

OPINION OF THE COURT

______________

McKEE, Chief Judge.

 

We are asked to decide whether a false statement in a communication from a debt collector to a debtor must be material in order to be actionable under a provision of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e. We conclude that materiality is required, as it is subsumed within the “least sophisticated debtor” standard that has traditionally governed FDCPA claims. Because we do not find the misstatement at issue in this case material, we will affirm the District Court’s grant of summary judgment to Pressler & Pressler and Midland Funding, LLC.

UC - willful misconduct - absences

Beck v. UCBR – Cmwlth. Court – unreported memorandum opinion – June 16, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2001CD14_6-26-15.pdf?cb=1

 

Absences alone, although possibly grounds for discharge, do not necessarily constitute willful misconduct. Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1051 (Pa. Cmwlth. 1985). At least one of the following elements must be present to justify the denial of benefits: (1) excessive absenteeism; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of an employer’s policy; or (5) disregard of warnings. Id. at 1052. “An employer has the right to expect [its] employee[s] to maintain regular working hours and to comply with office procedures.” Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976).

 

Once the employer meets its burden, the burden of proof shifts to the employee to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. 1976). Whether a claimant has good cause to violate a work policy is a question of law subject to our review and should be viewed in light

of all of the attendant circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).

_______________

 

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/

 

 

 

UC - vol. quit - substantial change in working conditions and compensation - retaliation

WFG Natl. Title Insurance Co. v. UCBR – Cmwlth. Court – June 25, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1268CD14_6-26-15.pdf?cb=1

 

Claimant worked as a vice president of agency sales. His compensation was an annual salary of $105,000, plus commission.   In September 2013, Employer advised Claimant that he would be working under the direction of a new supervisor. In light of problems involving harassment and profanity that he was experiencing with his former supervisor, however, Claimant deemed it time to “go on the record” and registered a formal complaint with Employer’s human resources department outlining the behavior of his former supervisor and how it had increased his anxiety and led to a higher dose of medication.  Although Employer conducted an investigation, it dismissed Claimant’s allegations and took no disciplinary action against the former supervisor.

 

In October, 2013, Claimant’s new supervisor presented him with an itemization of new goals and expectations for the fall of 2013.  Part of the new plan involved the exclusion of Claimant’s top two income producing clients, something that would would result in a pay decrease of approximately 15% - 20% yearly.”  Another part of the new plan included the expectation that Claimant would achieve an average of ten new agents per month, despite that fact that Employer, as a whole, “achieve[d] only slightly higher than ten new agents per month.”  Soon thereafter, Claimant met with both his former and current supervisors, expressing his dissatisfaction with the new plan. In response, they advised Claimant that there would be no changes and that “he would be expected to conform to the new expectations.”  Claimant believed that the new plan constituted retaliation for his formal complaint.  Claimant quit his job “due to his belief [that] the new goals and expectations represented a unilateral change to his job duties and contained unachievable expectations.”

 

A claimant bears the burden of proving necessitous and compelling cause for leaving his or her job.   In order to show such cause, the claimant must establish that: “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve [his] employment.”  While we recognize that cause of a necessitous and compelling nature may exist where an employer has instituted an unreasonable, unilateral change in the employment agreement, mere dissatisfaction with reasonable modifications in working conditions is not considered good cause for a voluntary quit. Kistler v. UCBR, 416 A.2d 594, 597 (Pa. Cmwlth. 1980). It is up to the claimant to establish that the change was so unreasonable and so burdensome that a reasonable person under like circumstances would have been compelled to quit. Unangst v. UCBR, 690 A.2d 1305, 1307-08 (Pa. Cmwlth. 1997).

 

Where an employer modifies the method by which it pays its employees, such as altering the basis for commissions, necessitous and compelling cause for a voluntary quit may be established. #1 Cochran, Inc. v. Unemployment Comp. Bd. of Review, 579 A.2d 1386, 1390 (Pa. Cmwlth. 1990). While a significant reduction in pay may constitute necessitous and compelling cause, Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 914 (Pa. Cmwlth. 1984), there is no talismanic percentage figure to denote a sufficiently substantial reduction in pay from one that is not. Each case must be decided on its own circumstances. Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).

 

In concluding that Claimant established necessitous and compelling cause for his voluntary quit, the Board weighed the evidence and found significance in both the combination and relatively quick succession of events. These events included Claimant’s reassignment to a new supervisor, Employer’s unwillingness to act on Claimant’s formal complaint, the substantial reduction in his compensation and presentation of the memo itemizing unachievable new goals and expectations. The proverbial “last straw” occurred at the supervisors’ meeting with Claimant when they refused to negotiate the unreasonable goals outlined in the memo. As the Board determined, it was not unreasonable for Claimant to conclude that Employer’s presentation of unattainable targets was retaliation for his recent complaint, which resulted in no action being taken by Employer. Accordingly, accepting Claimant’s version of the events and weighing the evidence, the Board concluded that Employer’s substantial and unilateral changes, done in the spirit of retaliation, constituted necessitous and compelling cause for Claimant’s voluntary quit. We agree.

 

_________________________

 

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/

 

 

 

UC - wages - sec. 401(a) and 404 - claimant must earn at least 49.5% of wages outside of highest quarter

Alla v. UCBR – Cmwlth. Court – Junbe 25, 2015 -

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2118CD14_6-25-15.pdf?cb=1

 

It is a claimant’s burden to prove that he is financially eligible for unemployment benefits. Devine, 101 A.3d at 1237; Pagliei v. UCBR, 37 A.3d 24, 26 (Pa. Cmwlth. 2007). To be financially eligible for benefits, a claimant must satisfy the earnings requirements of sections 401 and 404 of the Law for his base year. 43 P.S. §§801(a), 804. Claimant received a payout of accrued sick, annual, and personal leave upon his separation in the third quarter of 2013 in the amount of $30,728. This payment was properly characterized as wages, and, absent evidence that Employer generally makes accrued leave payments in a different manner, it was properly included in the quarter in which it was paid by Employer to calculate Claimant’s base year wages. Id.; 34 Pa. Code §61.3(a).   Claimant did not earn at least 49.5% of his earnings outside his highest quarter for the qualifying base year.   Thus, Claimant is financially ineligible for unemployment compensation benefits under sections 401(a) and 404 of the Law.

 

Pa. Constitution - legislative procedure - single subject, change of original purpose

Leach v. Commonwealth – Cmwlth. Court – June 25, 2015 – en banc 7-0

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/585MD14_6-25-15.pdf?cb=1

 

Held: Act 192 violates Pennsylvania Constitution Article III, Section 1 and Section 3, relating to original purpose and single subject.

 

Act No. 192 of 2014, which began as a two-page bill establishing criminal penalties for the theft of secondary metals.   In the final stages of enactment, it became an act that also created a civil cause of action for a broad class of individuals and organizations seeking to challenge municipal firearm legislation, and it authorized an award of attorney fees to successful challengers in the newly-created civil action.

 

FMLA - oppty. to cure insufficient medical certification - 3d Cir.

Hansler v. Lehigh Valley Hospital Network – 3d Cir. – June 22, 2015

 

http://www2.ca3.uscourts.gov/opinarch/141772p.pdf

 

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network, under the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. She submitted a medical certification requesting leave for two days a week for approximately one month.  The medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.  Lehigh Valley cited excessive absences and informed her that the request for leave had been denied.  Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.

 

The Department of Labor’s regulations govern how employers are to respond to perceived deficiencies in medical certifications. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). A certification is “incomplete” if the “employer receives a certification, but one or more of the applicable entries have not been completed.” Id. A certification is “insufficient” if the “employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” Id. If the employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.” Id.; see Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 837 (7th Cir. 2014) (“[T]he regulations do not authorize the employer to deny FMLA leave where the employee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.”).

 

Hansler does not argue on appeal that her certification established the “extended period of time” requirement under the FMLA, and we do not decide that issue here.   Instead, Hansler maintains she was entitled to the cure period set forth in the regulations because the certification was insufficient, rather than negative on its face. We agree.  When a certification submitted by an employee is “vague, ambiguous, or non-responsive” the employer must, under 29 C.F.R. § 825.305(c), provide the employee an opportunity to cure the deficiency within seven days.   Cf. cases discussing negative certifications.  Although the First, Sixth, and Seventh Circuits appear to agree that “employers have no responsibility to conduct further investigation when a certification is invalid on its face,” the cases discussing negative certifications do not apply where a court or employer are considering an ambiguous or non-responsive certification. Hoffman, 394 F.3d at 418-19.

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admin. law - barbers - license - criminal conviction

Kirkpatrick v. Bureau of Prof. and Occup. Affairs – Cmwlth. Court – June 10, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1059CD14_6-10-15.pdf?cb=1

 

Barber’s license was improperly revoked based on his plea of nolo contendere to misdemeanor indecent assault, where the crime bore no relationship to his practice of barbering and the relevant statute referred only generally to engaging in “unethical or dishonest practice or conduct....” 

 

The General Assembly could have easily shown its intention to make a barber subject to discipline by indicating, as it had in other statutes, that a conviction would have that effect.  Without such indication of legislative intent, the Board would have complete discretion, unrestricted by any standards.

 

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admin. law - late appeal - non-negligent circumstances

In re J.K. – Cmwlth. Court – June 10, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2022CD14_6-10-15.pdf?cb=1

 

On appeal from finding of indicated report of child abuse, unrebutted testimony of claimant’s attorney about inability to perfect appeal within applicable time because of medical emergency was sufficient to establish non-negligent circumstances permitting late appeal, under Bass v. Cmwlth, 401 A.2d 1133 (Pa. 1979) and its progency.

 

DPW erred in requiring attorney to present other evidence to support his testimony, when that testimony was neither challenged nor discredited

 

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admin. law - evidence - when silence is an admission

Lancaster EMS Assn. v. UCBR – June 4, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1749CD14_6-4-15.pdf?cb=1

 

 

Board decision in favor of claimant affirmed.  Employer appeal dismissed

 

silence as admission

“Silence is considered an admission, only when the circumstances are such that one ought to speak and does not.” McIntyre v. Unemployment Comp. Bd. of Review, 687 A.2d 416, 418 (Pa. Cmwlth. 1997). We define these circumstances in the context of the events surrounding discharge, such as when the person presenting the information is a supervisor with an ability to terminate an employee, and the employee refused to deny the accusation. Id.   We declined to find an admission by silence when a claimant is testifying at a UC hearing. See Carson v. Unemployment Comp. Bd. of Review, 711 A.2d 582 (Pa. Cmwlth. 1998).  This Court holds the law on implied admissions does not lessen an employer’s burden of proof in a willful misconduct case. Id.; see also Snyder v.  Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 104 C.D. 2013, filed August 27, 2013) (unreported), 2013 WL 4530950, *5 (distinguishing claimant’s statement in UC hearing with statement to employer at the time she was confronted with misconduct). We reasoned “it is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with [the] employer.” Carson, 711 A.2d at 584; Snyder 2013 WL 4530950, *5 (holding employer is required to “present independent, competent testimony corroborating an accusation of misconduct before the Court may make an adverse inference from a claimant’s silence.”).

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

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UC - vol. quit - repeated late payment of wages

Weavertown Transp. Leasing v. UCBR – Cmwlth. Court – June 8,2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1506CD14_6-8-15.pdf?cb=1

 

Court affirmed UCBR decision holding that claimant had good cause to quit his job, where  employer repeatedly failed to pay claimant proper wages at the time they were due.

 

Even though Employer issued supplemental checks to resolve some of the alleged payroll discrepancies and, therefore, did not technically refuse to pay Claimant, it is undisputed that Employer repeatedly failed to pay Claimant the proper amount owed to him when it was due.

 

Moreover, to hold that Claimant is ineligible for UC benefits because he would not accept being repeatedly, untimely paid the full amount for his work efforts would be contrary to this Court’s precedent and Section 3(a) of the Wage Law, which requires that “employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer.” 43 P.S. § 260.3(a)  (emphasis added). This Court has previously stated that “[a] contrary view would permit an employer to require a worker to submit to denial of a [timely] day’s pay under pain of loss of unemployment benefits. As the scriptural admonition states, the laborer is worthy of his hire.” LaTruffe, 453 A.2d at 48 (holding that a claimant had a necessitous and compelling reason to quit his employment where the employer wrongfully refused to pay him for one day’s work).

 

The court has held that the “failure to make timely payment for services rendered creates a real and substantial pressure upon an employee to terminate employment” and “repeat occurrences [of such failures] would cause a reasonable person to terminate employment.” Shupp v. Unemployment Compensation Board of Review, 18 A.3d 462, 465 (Pa. Cmwlth. 2011). The “underpayment of wages over a period of time [is] also sufficient cause to quit.” LaTruffe v. Unemployment Compensation Board of Review, 453 A.2d 47, 47 (Pa. Cmwlth. 1982) (citing Frey v. Unemployment Compensation Board of Review, 383 A.2d 1326, 1327 (Pa. Cmwlth. 1978)). A claimant will not be ineligible for UC benefits as long as the claimant “take[s] ‘common sense’ action that would have given the employer an opportunity to understand the nature of [his] objections and to take prudent steps to resolve the problem.” Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996) (citing Tedesco Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 552 A.2d 754, 756 (Pa. Cmwlth. 1989)); Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109, 1110 (Pa. Cmwlth. 1987).

 

Pursuant to Section 3(a) of the Wage Payment and Collection Law (Wage Law),4 which is implicated whenever a claimant asserts that he quit due to an employer’s failure to properly pay wages, [e]very employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer. Overtime wages may be considered as wages earned and payable in the next succeeding pay period. All wages . . . earned in any pay period shall be due and payable within the number of days after the expiration of said pay period as provided in a written contract of employment . . . . 43 P.S. § 260.3(a) (emphasis added); Shupp, 18 A.3d at 464. Applying Section 3(a) of the Wage Law, this Court has held that “employees are well within their rights to demand timely payment for work performed” and that “payment as agreed for services rendered is the very essence of an employment relationship, such that no employee can be compelled to work without payment.” Shupp, 18 A.3d at 464 (emphasis omitted).

 

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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/

admin. law - Statutory Construction Act applies to agency regulations

Quest Diagnostics Venture LLC v. Commonwealth – Cmwlth. Court – June 9, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/782FR12_6-9-15.pdf?cb=1

 

The statutory construction rules apply to the interpretation of an agency's regulations. Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 937 (Pa. Cmwlth. 2009).

 

For example,where the words of the regulations are clear and free from all ambiguity, they may not be disregarded under the pretext of pursuing its spirit.   Statutory Construction Act, 1 Pa. C.S. § 1921(b); Pacella v. Washington Cnty. Tax Claim Bureau, 10 A.3d 422, 427 (Pa. Cmwlth, 2010).   In addition, the regulations must be construed, if possible, to give effect to all of its provisions. 1 Pa. C.S. § 1921(a); Wheeling-Pittsburgh Steel, 979 A.2d at 937.