consumer - insurance - bad faith denial of claim

Rancosky v. Washington National Insurance Company –Superior Court – December 16, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A19039-15o.pdf?cb=2

 

In the course of holding against an insurance company on a claim by its insured, the court said the following:

 

Insurance bad faith actions are governed by 42 Pa.C.S.A. § 8371, which provides as follows:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

 

The Pennsylvania legislature did not provide a definition of bad faith, as that term is used in section 8371, nor did it set forth the manner in which an

insured must prove bad faith. While our Supreme Court has not yet addressed these issues, this Court has ruled that, to succeed on a bad faith

claim, the insured must present clear and convincing evidence to satisfy a two part test: (1) the insurer did not have a reasonable basis for denying

benefits under the policy, and (2) the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim. Terletsky,

649 A.2d at 688.

 

“There is a requisite level of culpability associated with a finding of bad faith. Merely negligent conduct, however harmful to the

interests of the insured, is recognized by Pennsylvania courts to be categorically below the threshold required for a showing of bad faith.”

Greene, 936 A.2d at 1189. Bad faith claims are fact specific and depend on the conduct of the insurer vis à vis the insured. Condio v. Erie Ins.

Exchange, 899 A.2d 1136, 1143 (Pa. Super. 2006). The fact-finder must consider “all of the evidence available” to determine whether the insurer’s

conduct was “objective and intelligent under the circumstances.” Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164, 1179 (Pa. Super. 2012)

 

A “dishonest purpose” or “motive of self-interest or ill will” is not a third element required for a finding of bad faith. Greene, 936 A.2d at 1191; see

also Nordi v. Keystone Health Plan West Inc., 989 A.2d 376, 385 (Pa.Super. 2010). A “motive of self-interest or ill will” may be considered in

determining the second prong of the test for bad faith, i.e., whether an insurer knowingly or recklessly disregarded its lack of a reasonable basis for

denying a claim. Greene, 936 A.2d at 1190.

 

There is a heightened duty of good faith was imposed on the insurer in a first-party claim because of the special relationship between the insurer and its insured, and the very nature of the insurance contract. See Romano v. Nationwide Mut. Fire Ins. Co., 646 A.2d 1228, 1231 (Pa. Super. 1994) (holding that an insurer must act with the “utmost good faith” toward its insured).

 

Individuals expect that their insurers will treat them fairly

and properly evaluate any claim they may make. A claim must

be evaluated on its merits alone, by examining the particular

situation and the injury for which recovery is sought. An

insurance company may not look to its own economic

considerations, seek to limit its potential liability, and operate in

a fashion designed to “send a message.” Rather, it has a duty to

compensate its insureds for the fair value of their injuries.

Individuals make payments to insurance carriers to be insured in

the event coverage is needed. It is the responsibility of insurers

to treat their insureds fairly and provide just compensation for

covered claims based on the actual damages suffered. Insurers

do a terrible disservice to their insureds when they fail to

evaluate each individual case in terms of the situation presented

and the individual affected.

Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 382 (Pa.

Super. 2002).

 

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disability - remand - ALJ failure to cite/discuss relevant evidence - GAF scores

https://www.paed.uscourts.gov/documents/opinions/15D1023P.pdf

 

Serrano v. Colvin – ED Pa. – December 9, 2015

 

The court upheld that magistrate’s conclusion that the  ALJ’s failure to cite to Serrano’s GAF scores warranted remand.

 

GAF scores assess an individual’s “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Boston v. Chater, No. CIV.A. 94-5781,

1995 WL 708552, at *4 (E.D. Pa. Nov. 28, 1995) (quoting Diagnostic and Statistical Manual ofMental Disorders 32 (4th ed. 1994)). “The GAF scale, designed by the American Psychiatric

Association, ranges from 1 to 100, with a score of 1 being the lowest and 100 being the highest.” Christian v. Comm'r of Soc. Sec., No. CIV.A. 13-584, 2014 WL 4925032, at *3 (W.D. Pa. Sept. 30, 2014) (quoting West v. Astrue, 2010 WL 1659712, at *4 (E.D. Pa. Apr. 26, 2010)). Thougha GAF score alone does not necessarily indicate an impairment, it constitutes “relevant medicalevidence that ‘must be addressed by an ALJ in making a determination regarding a claimant’s disability.’” Packard v. Astrue, No. CIV.A. 11-7323, 2012 WL 4717890, at *2 (E.D. Pa. Oct. 4, 2012) (quoting Colon v. Barnhart, 424 F. Supp.2d 805, 812 (E.D. Pa. 2006)).

 

At step four in the disability analysis, an ALJ determines whether a claimant has the requisite residual functional capacity to perform her past relevant work. In making this decision,

the ALJ must consider all evidence before her and indicate why she accepts or rejects certain evidence. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994). Given this requirement, an

argument in favor of remand based on a failure to discuss GAF scores “will fail if, either: (1) the doctors who issued the GAF scores did not “express any opinions regarding [her] specific limitations,” or (2) if the ALJ provided a clear and satisfactory explanation of the basis uponwhich he dismissed the probative weight of the omitted GAF scores. Packard, No. CIV. A. 11-7323, 2012 WL 4717890 at *3.

 

In her Report, the magistrate judge reviewed the record and concluded that claimant “was assigned a GAF score of 45 on twenty-one separate treatment visits over a period of nearly

two years.” ....The ALJ made reference to only one of the at least twenty-one GAF scores—a GAF score of 50 provided by the agency examiner.  She provided no explanation for her decision to ignore the  others.  The magistrate judge reasoned that, “[t]hough remand may not be necessary where an ALJ fails to discuss one or two GAF scores of 50 or below, the Court finds that there is clear basis for remand where an ALJ ignores twenty-one such scores.”

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civil rights - sec. 1983 - under color of state law - private actor

PRBA Corp. a/k/a Bare Exposure v. HMS Host Toll Roads, Inc. – 3d Cir. – December 10, 2015

 

http://www2.ca3.uscourts.gov/opinarch/151538p.pdf

 

Private company that operates service plazas on New Jersey highways did not act “under color of any statute, ordinance, regulation, custom, or usage, of any State,”  42 U.S.C. § 1983, when it removed brochures belonging to a “gentleman’s club” from the common areas of its service plazas.  “The absence of any direct involvement by the state authorities either in the decision to remove the brochures or in the general, day-to-day operations of the service plazas compels this conclusion.”

 

The touchstone for analysis of all state action claims is Brentwood v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), in which the Supreme Court held that “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 295; see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights)

 

The Brentwood Court also gave additional structure to several tests that lower courts had previously been using to determine whether a private party satisfied the “close nexus” requirement necessary to be considered a state actor. One of these tests is called the “entwinement test,” which asks whether “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and [thus] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Brentwood, 531 U.S. at 298.  This case thus shows that the entwinement test focuses on the overlap or merger of public and private entities as a result of their shared leadership or other attributes that make it hard to separate their public functions from their private ones.

 

The court also relied heavily on

            - Gannett Satellite Information Network, Inc. v. Berger, 894 F.2d 61, 67 (3d Cir. 1990), hodling that the concessionaires that leased property in the Newark Airport and decided not to distribute certain newspapers were simply “private entities pursuing private ends” because there was no “explicit governmental involvement” in the decisions of the concessionaires and thus their conduct “may not fairly be attributed to the Port Authority.” 894 F.2d 61, 67 (3d Cir. 1990), which took no part in the distribution decision.  The analysis focused on evidence of explicit involvement of the governmental authority in the specific action the plaintiffs challenge.

             - Marie v. American Red Cross, elaborating a “high bar necessary for a finding of impermissible entwinement.” 771 F.3d 344 (6th Cir. 2014).   “[M]ere cooperation simply does not rise to the level of merger required for a finding of state action.” Id. at 364. Instead, there must be “pervasive entwinement of public institutions and public officials in [the private entity’s] composition and workings [such that] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Id. (emphasis added).

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default judgment - striking - failure to strictly follow Rule 237.5 - notice of intent to take default

Americhoice Federal Credit Union v. Ross – Superior Court – December 7, 2015

 

Majority                                 http://www.pacourts.us/assets/opinions/Superior/out/J-S63017-15o%20-%201024610755788899.pdf?cb=1

 

Concurrence/dissent            http://www.pacourts.us/assets/opinions/Superior/out/J-S63017-15cds%20-%201024610755788901.pdf?cb=1

 

Default judgment stricken due to Plaintiff’s failure to strictly follow Pa. R.C.P.  237.1(a(2) and 237.5 – Notice of Intent to Take Default Judgment (Important Notice)

 

Plaintiff’s notice said “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE.”  By contrast, the rules require the notice to state “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED O ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE

COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU.”

 

The court held that under Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super. 2013) and and City of Philadelphia v. David J. Lane Adver., Inc., 33 A.3d 674, 679 (Pa. Commw. 2011), the plaintiff had to give “specific reasons” as to what defendant had failed to do and why defendant was in default, rather than just the general statement (“you have failed to take action”) required under the previous rule.  The Commonwealth Court examined the above legislative and judicial history in the context of its holding in Township of Chester v. Steuber, [] 456 A.2d 669 ([Pa. Commw.] 1983) and subsequentamendments to Rule 237.5. Id. at 678–80.   The court held that the amendments to Rule 237.5 “impose an additional notice requirement on a [AmeriChoice] who wishes to obtain a judgment by default ... the [AmeriChoice] must now include in the [Ten]–Day Notice specific reasons why the defendant is in default.” David J. Lane Advertising, 33 A.3d at 679 (emphasis in original).Oswald, 80 A.3d at 795-96.

 

The law is clear that generally, default judgments are disfavored. Attix v. Lehman, 925 A.2d 864, 866 (Pa. Super. 2007).  AmeriChoice failed to provide any indication on the face of the Notice of precisely why default judgment would be entered against Homeowners. This constitutes a failure to comply with the format contained in Pa.R.C.P. 237.5, and thus constitutes a violation of Pa.R.C.P. 237.1(a)(2). ... “It is well[]established that a record which reflects a failure to comply with Pa.R.C.P. 237.1 is facially defective and cannot support a default judgment.” Oswald, 80 A.3d at 796 (citationomitted). “Furthermore, since the prothonotary lacks authority to enter judgment under these circumstances, the default judgment would be void ab initio.” Id. at 797 (citation and italicization omitted). A default judgment that is void ab initio “must be stricken without regard to the passage of time.”

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UC - voluntary quit - discharge not imminent

Line v. UCBR – Cmwlth. Court – November 25, 2015 – unreported* memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/731CD15_11-25-15.pdf?cb=1

 

Benefits denied since claimant quit without discharge being imminent, only a future possibility if he did not perform his job properly.

 

Where a claimant resigns in order to avoid an imminent discharge, the Board may properly treat the claimant’s separation from employment as a discharge and analyze the claimant’s eligibility for unemployment benefits under section 402(e) of the Law, 43 P.S. §802(e). Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994).

 

However, a claimant who resigns under circumstances indicating only a possibility of a discharge is considered to have voluntarily resigned. Id. Whether a claimant was discharged or voluntarily resigned is a question of law to be determined based on the facts found by the Board. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). The claimant bears the burden of proving that the separation was a discharge and not a voluntary resignation. Id.

In this case, the facts as found by the Board are similar to those before the Court in Fishel v. Unemployment Compensation Board of Review, 674 A.2d 770 (Pa. Cmwlth. 1996), and Rizzitano v. Unemployment Compensation Board of Review, 377 A.2d 1060 (Pa. Cmwlth. 1977).

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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admin. law - findings and reasons

State Police v. Brandon – Cmwlth. Court – November 24, 2015 – unreported* memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/841CD15_11-24-15.pdf?cb=1

 

The court vacated an ALJ decision concerning respondent’s right to possess a firearm, because the decision did not contain proper findings and reasons, as required by the Administrative Agency Law, 2 Pa. C.S. 507, which states that  “All adjudications of a Commonwealth agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.” 2 Pa. C.S. §507. 

 

Section 507 of the AAL requires that adjudications contain findings of fact that are “sufficiently specific to enable [a reviewing] court … to pass upon  questions of law.” In re: Petition for Formation of Independent Sch. Dist., 962 A.2d 24, 28 (Pa. Cmwlth. 2008) (quoting Henderson v. Office of Budget, 537 A.2d 85, 86 (Pa. Cmwlth. 1988)). Further, adjudications stating only that a party “failed to present evidence” to meet its burden do not comply with Section 507 of the AAL.

 

Where a decision contains no specific findings regarding the evidence, but rather merely set forth conclusory findings, a remand is necessary for adjudication that complies with 2 Pa. C.S. §507).  Independent Sch. Dist., supra.; see also Turner v. Civil Serv. Comm’n, 462 A.2d 306 (Pa. Cmwlth. 1983) (where commission’s decision merely concluded that police officer’s dismissal was for just cause without any findings as to which testimony was found credible, which charges against the officer were substantiated by the evidence, or what facts constituted just cause for dismissal from employment, remand was necessary for findings of fact consistent with Section 555 of the Local Agency Law, 2 Pa. C.S. §555), which is similar to 2 Pa. C.S. 507.

 

 

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - willful misconduct - employer sick leave policy not applicable to claimant out on FMLA leave

Phila. Parking Authority v. UCBR – Cmwlth. Court – November 17, 2015 – unreported memorandum opinion

.

http://www.pacourts.us/assets/opinions/Commonwealth/out/609CD15_11-17-15.pdf?cb=1

 

Not reasonable or proper to apply employer’s sick leave policy to a claimant who was out on FMLA leave, re claimant’s failure to call employer sick line to let ER know she was leaving the house for brief period.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - voluntary quit - factual matrix at time of separation

Life Pittsburgh v. UCBR – Cmwlth. Court – November 20, 2015 – unpublished memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/230CD15_11-20-15.pdf?cb=1

 Certified Nursing Assistant (CNA) had good cause to quit her job after a series of incidents at work that caused her to have a reasonable fear for her health and safety.

 Factual matrix at time of separation cannot be arbitrarily restricted –  The factual matrix at the time of separation determines whether claimant had good cause to quit.  in this case, that  included not only the last incident but several in the month prior to claimant’s voluntary quit, all of which she had addressed with the employer.  Cf., Hussey Copper Ltd. v. UCBR, 718 A.2d 894 (Pa. Cmwlth. 1998).   The events leading to claimant’s resignation took place over a relatively short period of time, and claimant did seek to remedy the problems through available channels. Cf., Umedman v. UCBR, 52 A.3d 558, 564 (Pa. Cmwlth. 2012). 


The last incident was not by itself the precipitating event for her resignation, but the culmination of a pattern of events that produced real and substantial pressure upon Claimant and which Employer failed to address. Collier Stone Co. v. UCBR, 876 A.2d 481, 485 (Pa. Cmwlth. 2005).  The claimant need not notify the employer of each and every incident so long as a claimant has given the employer the opportunity to understand the problem and take steps to resolve it.  Moreover, the Board’s consideration of recent events, not just the last one, goes directly to the claimant’s burden to demonstrate that she made a reasonable effort to maintain employment by advising Employer of the conditions of her employment putting her at risk, that she provided Employer with the opportunity to resolve the problems, and that Employer failed to do so.

The purpose of the rule that the Board restrict itself to the “factual matrix at the time of separation,” is to prohibit both parties from introducing into the Board’s inquiry events, facts or issues from the entirety of the employment relationship regardless of how irrelevant or removed from the time of separation. Hussey, 718 A.2d at 900; Lehigh County Community College v. UCBR, 473 A.2d 727, 729-730 (Pa. Cmwlth. 1984).  Under Employer’s interpretation of the rule, which would focus only on the events immediately preceding termination from employment, claimants and employers would be severely inhibited in their ability to satisfy or rebut their respective evidentiary burdens by an arbitrarily restrictive temporal window. Employer’s interpretation would also bar claimants from receiving unemployment compensation who have a necessitous and compelling cause to leave employment based upon a pattern of harassment. [citations omitted]

Substantial evidence supported Board’s findings that claimant had good cause to quit

The facts found by the Board show that claimant was threatened, attempted to seek assistance from employer to address the threats, and that employer failed to provide adequate assistance or support to Claimant. Each fact is supported by substantial evidence in the form of claimant’s credible testimony, which was unrebutted by the employer. 

Claimant’s belief that her working conditions were unsafe was not speculative. Compare Green Tree School, 982 A.2d at 578 (subjective fear that autistic students may become unruly with a reduced behavioral management staff was insufficient to establish real, objective safety fears); Hoy, 391 A.2d at 1145 (claimants’ concern for their safety was real and substantial where employer failed to institute adequate safety measures at convenience store following string of robbery-homicides at similar businesses in the area); Rapid Pallet v. UCBR, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (faulty condition of employer’s truck constituted safety concerns that created real and substantial pressure to resign from employment). The Board did not err in concluding that Claimant satisfied her burden to demonstrate cause of a necessitous and compelling nature to voluntarily resign her employment.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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FDCPA - debt collector v. creditor - initial communication

McDermott v. Nationstar Mortgage –  EDPa. – November 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0959P.pdf

 

Defendant’s motion to dismiss Plaintiff’s FDCPA action denied, because

 

            - defendant acquired loan while it was in default, therefore it was a debt collector

 

            - defendant’s initial communication did not identify itself as a debt collector attempting to collect a debt.

 

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name change - child - best interest - burden of proof

T.W. v.  D.A. – Superior Court – November 10, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A23026-15o%20-%201024312285635577.pdf?cb=1

 

The statute pertaining to name changes provides: “The court of common pleas of any county may by order change the name of any person resident in the county.” 54 Pa.C.S.A. § 702(a). Other than providing for the granting of a petition in the absence of any lawful objection, the statute sets forth no standards for the court’s exercise of its discretion. Our Supreme Court has directed the lower courts to exercise their discretion, in name change cases, in such a way as to “comport with good sense, common decency and fairness to all concerned and to the public.” Petition of Falcucci, 50 A.2d 200, 202 (Pa. 1947).

 

best interest of child

When considering a contested petition to change the name of a minor child, the best interest of the child is the standard by which a trial court exercises its

discretion. See Grimes, 609 A.2d at 161 (Pa. 1992) (citing comprehensive list of jurisdictions that apply best interest of child standard).  In adopting

the “best interests of the child” standard, our Supreme Court stated:

 

The statutory scheme sets forth no criteria for the court toconsider when exercising its discretion upon a petition for

change of name. The only prohibition within the statute appears at § 705: “Any person violating the provisions of

this chapter for purpose of avoiding payment of taxes or other debts commits a summary offense.” . . . Specific

guidelines [for a child’s best interests] are difficult to  establish, for the circumstances in each case will be

unique, as each child has individual physical, intellectual,moral, social and spiritual needs. However, general

considerations should include the natural bonds between parent and child, the social stigma or respect afforded a

particular name within the community, and, where the child is of sufficient age, whether the child intellectually

and rationally understands the significance of changing his or her name.

 

Id. at 160, 161 (emphasis added). The Court further stated: “Beyond requiring compliance with the notice provisions, the statute provides no additional guidance for courts considering petitions for change of name.” Id. at 160 (quoting Petition of Falcucci, supra at 202. See also In re Change of Name of E.M.L. to E.M.S., 19 A.3d 1068 (Pa. Super. 2011).

 

burden of proof

In In re: C.R.C., 819 A.2d 558 (Pa. Super. 2003), the court stated that the party petitioning for the minor child’s change of name has the burden of coming forward with evidence that the name change would be in the child’s best interest. Id. at 560. Further, where a petition to change a child’s name is contested, the court must carefully evaluate all of the

relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interest. Id.; see also Petition of Christjohn, 428 A.2d 597 (Pa. Super. 1981).

 

In this case, the trial court concluded that Father did not meet his burden of showing that the proposed name change was in the child’s best interests. Instead, the court determined that Father sought to change the child’s name to further his own interest in the survival of his surname. Those findings are amply supported by the evidence.

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UC - fault overpayment - # penalty weeks - discretion - mitigating circumstances

Williams v. UCBR – Cmwlth. Court – November 10, 2015 – unreported memorandum opinion*

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/383CD15_11-10-15.pdf?cb=1

 

Claimant admittedly filed false claims for benefits, but later herself brought that matter to the Department’s attention.

 

Claimant’s admission of wrongdoing does not excuse a fault overpayment

The fact that Claimant brought the improper benefits to the Department’s attention after the fact on her own initiative, however, does not alter the fact that the overpayment was obtained by misrepresentation and is not a ground for reversing a fault overpayment. McKean v. UCBR, 94 A.3d 1110, 1114-15 (Pa. Cmwlth. 2014) (upholding fault overpayment despite fact that claimant notified Department of unreported income one month after the last overpayment).

 

15% penalty v. penalty weeks

In addition to fault overpayment, under Section 801 of the Law, a claimant who “makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase compensation” is subject to penalty weeks disqualifying her from receiving future benefits and a penalty of 15% of the overpaid benefits that she received. 43 P.S. § 871(b),(c);4 Chishko, 934 A.2d at 178.

 

The Board’s findings that Claimant’s conduct constituted knowing misrepresentation and that it was done to obtain benefits that she was not eligible to receive and that she obtained the benefits by fraud satisfy the requirements for imposition of these penalties. Castello, 86 A.3d at 299; Chishko, 934 A.2d at 178.  The Board therefore did not err in affirming the 15% penalty imposed by the Department. Section 801(c) provides that the 15% penalty is mandatory where the Board has found that a claimant knowingly made a false representation concerning her eligibility or knowingly failed to disclose such information to obtain benefits. 43 P.S. § 871(c) (“Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase compensation … and as a result receives compensation to which he is not entitled shall be liable to pay to the Unemployment Compensation Fund a sum equal to fifteen per centum (15%) of the amount of the compensation”)

 

Penalty weeks, however, are not automatic upon a finding of conduct sufficient to support a penalty. Section 801(b) provides that a claimant who has made knowing misrepresentations or omissions to obtain benefits “may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment.” 43 P.S. § 871(b).  (emphasis added) Here, the Board found that Claimant reported the fraudulent claims to the Department in 2011, and Department records showed that Claimant expressed a willingness to repay the benefits in 2011, but was told to await an overpayment letter that the Department did not send.  

While self-reporting does not preclude the imposition of penalty weeks, McKean, 94 A.3d at 1114-15, these facts are relevant to the seriousness of Claimant’s misconduct and therefore can bear on the discretionary determination as to whether penalty weeks are appropriate and whether the number of penalty weeks imposed should be less than maximum permitted by Section 801(b). [emphasis added]

 

The Department imposed and the Board upheld the maximum number of penalty weeks permitted for this 11-week overpayment, 13 penalty weeks, with no consideration of the unusual mitigating circumstances in this case. The only reason given by the Department for its imposition of the maximum penalty weeks was that Claimant knew that she was ineligible when she filed for benefits and was therefore subject to penalty weeks.  The referee and the Board held only that “penalty weeks” were “appropriate,” and did not discuss their finding that Claimant reported the fraud to the Department in 2011 or rule on the issue whether imposition of the maximum penalty weeks was appropriate.

 

Because the Board did not consider relevant facts established by both its findings and the record, and did not address the issue of whether the maximum penalty weeks were properly imposed, the Board’s affirmance of the imposition of 13 penalty weeks must be vacated and the issue of penalty weeks must be remanded to the Board. See Dorn v. UCBR, 866 A.2d 497, 501-02 (Pa. Cmwlth. 2005) (remand required where Board failed to make necessary findings or failed to address evidence); Kowal v. UCBR, 465 A.2d 1322, 1323 (Pa. Cmwlth. 1983) (remand required where Board failed to address issue and make necessary findings).

 

The court thus affirmed the Board’s order on ineligibility, the fault overpayment and the imposition of a 15% penalty, but remanded the issue of penalty weeks to the Board to consider whether and how many penalty weeks are appropriate.

 

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*An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a); Pa. R.A.P.  3716 [45 Pa.B. 3975; July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

employment - wrongful termination - public policy - health care worker - excessive overtime

Roman v. McGuire Memorial – Superior Court – November 9, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-S55021-15o%20-%201024298355629999.pdf?cb=1

 

Held:  An employee fired for not working mandatory overtime in a health care context has an implied right of action for wrongful termination, even though the relevant statute, Prohibition of Excessive Overtinme in Health Care Act, 43 P.S. 932.1 et seq.  (Act 102), does not provide a statutory remedy and there are no final regulations.    Act 102 establishes a clear public policy protecting health care workers from the kind of action the employer is alleged to have taken in this case.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - representation by suspended attorney

Powell v. UCBR – Cmwlth. Court – November 6, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1704CD14_11-6-15.pdf?cb=2

 

Claimant was represented by an attorney whose license to practice law had been suspended.   At the hearing on the merits, the referee refused to let the attorney take part, only observe, after which the referee entered a decision denying benefits, later affirmed by the Board. 

 

Citing Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), and In the Matter of David Louis Bargeron, 130 DB 2005 (Pa. July 27, 2011)  the court reversed and remanded for a new hearing.  The court said that the question in the case was not whether the suspended attorneys should be sanctioned as a matter of  discipline by the Pennsylvania Supreme Court for violating Disciplinary Rule 217(j). The question is whether the Board or referee may enforce Disciplinary Rule 217(j) to deprive a claimant of his right to representation of his choice under Section 214 of the Law, which does not preclude a “suspended attorney” from serving as a claimant representative.  The court held that the referee and Board could not do so.

 

The court noted that “the jurisdiction of the Disciplinary Board and the Supreme Court to prosecute and enforce the Disciplinary Rules is “exclusive.” Pa. R.D.E. 201(a). As Bargeron illustrates, both have taken steps to discipline lawyers who violate Rule 217(j) by representing clients in unemployment compensation matters. Here, the Board ignored its own governing statute and attempted to step into the shoes of the Disciplinary Board and the Supreme Court, effectively sanctioning Claimant for Mr. Ostrowski’s violation of the Disciplinary Rules by denying Claimant representation at the second hearing.

 

Should this situation arise again, it would be more appropriate, and consistent with both Disciplinary Rule 217(j) and Section 214 of the Law, for the referee and the Board to advise the suspended attorney that the suspended attorney’s representation of the claimant would be a violation of Disciplinary Rule 217(j). If the suspended attorney chooses, nonetheless, to continue the representation, the referee and Board must allow it under Section 214 of the Law, but they may refer the suspended attorney to the Disciplinary Board for further action consistent with Bargeron. If the suspended attorney chooses to withdraw, then the referee and the Board should afford the claimant an opportunity to find alternative representation.

 

The court vacted the order of the Board and remanded the case to the Board for a new hearing.

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If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

UC - appeal - collateral attack by employer via request for relief from charges

Narducci v. UCBR – Cmwlth. Court – November 4, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/104CD15_11-4-15.pdf?cb=1

 

This case was remanded to the Board, to allow it to find the necessary facts needed to decide the case, but there is extensive and important discussion about wthe employer requested for relief from charges filed beyond the time for an appeal, and if so, whether that is an impermissible collateral attack on the initial determination of claimant eligibility.

 

The UCSC process in this case was less than desirable, and the referee and UCBR failed to find critical facts, leaving the court without the fact findings it needed to decide the case

What is clear is that a) the Claimant got UC benefits starting in October 2013, b) the employer did not file an appeal, c) the employer later filed an request for relief from charges (RRFC), and d) the UCSC made findings in August 2014 that claimant was not eligible for those benefits and was subject to a fault overpayment. 

 

Claimant appealed and at the hearing, his counsel argued that a) the UCSC determinations were untimely and violated claimant’s rights, b) the UC authorities did not have the power to re-open the 2013 UC claim in 2014; c) the employer did not appeal the October 2013 determination or challenge it in any way until July 2014.

 

Again, because critical fact-finding was missing, the Court ordered a remand.  However, it engaged in an extended discussion of the issues surrounding the UCSC determination process and the possibility that the employer’s RRFC was an impermissible collateral attack on the initial determination of claimant eligibility.

 

Here is the court’s discussion of these issues –

 

Section 501(a) of the Law provides that, upon receiving an application for UC benefits, the Department must

 

promptly examine each application for benefits and on the basis of the facts found by it shall determine whether or not the application is valid. Notice shall be given by the department in writing to the claimant and each base-year employer of the claimant, stating whether or not the claimant is eligible under section four hundred and one (a),[6] and, if declared eligible thereunder, the weekly benefit rate and the maximum amount of compensation payable. . .

 

43 P.S. § 821(a) (emphasis added). Notice that an application for UC benefits has been filed must also be given to the claimant’s last employer. Section 501(b) of the Law, 43 P.S. § 821(b). Under Section 501(c)(1) of the Law, the Department is required to “promptly examine each claim . . . for compensation and on the basis of the facts found by it shall determine whether or not the claim is valid.” 43 P.S. § 821(c)(1). The Department is required to provide notice to the claimant if his or her claim is determined to be invalid and to provide notice to the employer if the employer provided information in writing to the Department raising a question regarding the claimant’s eligibility for any reason other than his or her failure to comply with Section 401(a) of the Law. Section 501(c)(2), (3) of the Law, 43 P.S. § 821(c)(2), (3). Pursuant to Section 501(e), an employer or a claimant may appeal the initial notice of determination regarding the claimant’s eligibility for UC benefits within fifteen days of receiving the notice from the Department. 43 P.S. § 821(e).7 Should the Department issue a revised notice of determination without an  appeal being taken, such revision must occur within the fifteen day appeal period. Garza v. UCBR, 669 A.2d 445, 447 (Pa. Cmwlth. 1995). Section 509 of the Law provides that “[a]ny decision made by the department or any referee or the board shall not be subject to collateral attack as to any application claim or claims covered thereby or otherwise be disturbed, unless appealed from.” 43 P.S. § 829. Thus, if no revision occurs and no appeals are taken within fifteen days of the determination of eligibility, “the determination becomes final and the Board loses jurisdiction to consider the matter.” Pennsylvania Turnpike Commission v. UCBR, 991 A.2d 971, 974 (Pa. Cmwlth. 2009).

 

 

Editor’s note:   I think it is significant that the Court chose to included the above in its opinion.  It certainly didnt have to, in order to decide the case. 

________________

 

An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)