UC - willful misconduct - delib. violation of ER policy - WM v. rule violation

Good Samaritan Hospital v. UCBR – Cmwlth. Court – July 28, 2016 – unreported* memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/1224CD15_7-28-16.pdf?cb=1

Employee’s deliberate decision to flout ER email policy on internal mass mailings constituted willful misconduct, despite ER policy for discipline short of discharge, where ER policy gave it discretion to impose greater sanction, and it chose to do so.

When Claimant’s application for religious exemption to ER mandatory flu vaccination was denied, he sent out a series of 13 mini-mass mailings to co-workers, after he was unable to send out single mass mailing because of lack of permission.

The evidence reflects Claimant’s acknowledgement of Employer’s e-mail policies and his deliberate decision to flout Employer’s prohibition against mass e-mails by circumventing the restrictions on the distribution list and sending thirteen e-mails.   Accordingly, we conclude that Claimant’s actions constituted willful misconduct. Furthermore, the fact that Employer’s policies provide for discipline short of discharge does not negate Claimant’s termination for willful misconduct where its policies clearly afford it discretion to impose a different and greater sanction for his actions and it chose to do so. See Johnson v. UCBR, 744 A.2d 817, 821 (Pa. Cmwlth. 2000); Seton Co. v. UCBR, 663 A.2d 296, 299 (Pa. Cmwlth. 1995).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

tax sales - RETSL - right to installment plan - stay - "default"

Barker v. Chester Co. Tax Claim Bureau – Cmwlth. Court – July 27, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1384CD15_7-27-16.pdf?cb=1

The court set aside the sale and reversed the lower court, holding that

            - Taxpayers did not default under a 2010 installment agreement under sec. 603 where, although they were late with some intermediate installment payments, they made the final payment within the applicable period – “when due.”  Therefore, there was no “default” of the agreement, and the taxpayers were not disqualified from eligibility for a 2013 installment agreement under sec. 603, which bars eligibility if there was default on agreement within prior three years.

            - Sale also set aside because, even assuming there was a default,  the TCB’s admitted failure to give the taxpayers notice of such violated the notice requirement under sec. 603.

There was a lot of good language in the opinion, including the following:

            - notice of right to installment agreement must be given by TCB upon payment of 25% of the taxes due -  An upset sale must be stayed where a taxpayer pays 25% of the taxes due and agrees to an installment plan for the remainder. Further, where a taxpayer makes a payment of 25% or more, “the tax claim bureau must advise the taxpayer of the Section 603 option because its failure to do so ‘would deprive the owner of his or her property without due process of law.’” In In Re Consolidated Return of the Tax Claim Bureau of the County of Beaver from the August 16, 2011 Upset Sale for Delinquent Taxes, 105 A.3d 76 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 121 A.3d 497 (Pa. 2015),   Id. at 82 (emphasis added) (quoting Darden, 629 A.2d at 323).

            - purpose of RETSL is collection of taxes, not taking of taxpayer’s property -  The statute was not enacted to deprive citizens of their property or to create investment opportunities for those who attend tax sales but, rather, to assist the collection of taxes. Stanford–Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa. Cmwlth. 2003). The United States Supreme Court has held that due process is implicated in any taking of property for the collection of taxes, stating that “[p]eople must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.  Jones v. Flowers, 547 U.S. 220, 234 (2006). Because of these due process concerns, this Court has explained that

the focus is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the Bureau comply with the requirements of the statute.  Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth. 2003). A failure by a tax claim bureau to comply with each and every statutory requirement will nullify a sale. Id. at 1252.

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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)

criminal history record - expungement - summary conviction - "five years following"

Commonwealth v. Giulian – July 19, 2016 – Pa. Supreme Court

Majority         http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016mo%20-%201027386528379439.pdf?cb=1

Concurring    http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016co%20-%201027386528379441.pdf?cb=1

Concurring    http://www.pacourts.us/assets/opinions/Supreme/out/J-49-2016co1%20-%201027386528379462.pdf?cb=1

We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and conclude the lower courts erred in holding expungement unavailable as a matter of law in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18 Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time, appellant was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S. §5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking, 18 Pa.C.S. §6308(a), to which she pleaded guilty.   Appellant was then arrested on September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18 Pa.C.S. §3304.  

Appellant has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her criminal history record under Section 9122(b)(3), which provides: (b) Generally.--Criminal history record information may be expunged when: * * * (3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense. (ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense. 18 Pa.C.S. §9122(b)(3).

The Court agreed with appellant that the Superior Court incorrectly read into the statute a requirement that the five arrest-free years be “immediately” following the conviction sought to be expunged, when the actual text of the statute does not include that qualifier.

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UC - late appeal - non-negligent conduct of claimant

Claimant allowed to appeal nunc pro tunc from decision that she had received fault overpayments where --

            - Claimant received benefits between 11-16-13 and 5-24-14

            - On May 15, 2015, the Dept. issued an overpayment notice, charging fault OP

            - Claimant had moved from her old address, at which she received benefits, about a year before the OP notice was sent

            - CL eventually learned of OP notice and filed appeal, beyond appeal date

            - Claimant had not provided forwarding address to USPS because she was being hounded by creditors

Court held that under applicable late appeal jurisprudence, e.g., Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008), the “non-negligent conduct of the claimant” exception should be applied.  Nothing that CL did was negligent.  She had moved more than a year after her benefits had ended and had no duty or reason to let UC authorities know of this.   The testimony showed that CL had an unstable housing situation and moved to avoid creditors, but not that she was in any way negligent.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

civil procedure - complaint - right to amend - PaRCP 1033

Blackwood, Inc. v. Reading Blue Mtn. and Norther Railroad Col – Superior Court – July 15, 2016

http://www.pacourts.us/assets/opinions/Superior/out/J-E01005-16o%20-%201027344078347919.pdf?cb=1

Under Pa.R.C.P. 1033, a party can amend his pleading either with the consent of the other party or with the court’s permission. “Leave to amend lies within the sound discretion of the trial court and the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.” Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996)).

Under the pertinent rule: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa.R.C.P. 1033. However, amendment is not permitted to present a new cause of action where the statute of limitations has expired. See Phillips v. Lock, 86 A.3d 906 (Pa.Super. 2014).

Generally, an abuse of discretion occurs if a complaint is dismissed without leave to amend. Hill, supra. “There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. However, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” Id. at 557 (citation and emphasis omitted).

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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)

housing - service/support animal - reasonable accommodation

Kennedy House v. Phila.  Commission on Human Relations – Cmwlth. Court – June 11, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1263CD15_7-11-16.pdf?cb=1 (32 pp.)

Held, that refusal to allow woman to have her dog live with her, in residence with no-dog policy, did not violate city fair housing ordinance or federal Fair Housing Act, 42 USC 3604(f).  There is an extensive discussion of federal fair housing statutes and regs.   Potential tenant did not establish the nexus between her disability and the assistance provided by her dog.

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UC - accident - negligence v. willful misconduct

General Pipe Cleaning and Sewer v. UCBR – Cmwlth. Court – July 7, 2016 – unpublished* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/2526CD15_7-7-16.pdf?cb=1

The court affirmed the UCBR decision that claimant truck-driver had not committed willful misconduct as a result of his negligence in causing an accident, which caused $100,000 damage.  Substantial evidence supported the Board’s findings that

            a)  claimant was discharged because of the accident, and not a violation of ER rules.

            b) claimant did not deliberately cause the accident – cf. Heitczman v. UCBR, 638 A.2d 461 (claimant knowingly violated ER rule)

Claimant’s actions in causing the accident and the damage to the employer’s vehicle, were clearly negligent. Negligence, however, is not willful. Therefore, as repeatedly held by the courts benefits cannot be denied under Section 402(e) of the Law. See Myers [v. Unemployment Comp. Bd. of Review, 625 A.2d 622 (Pa. 1997)]; Navickas [v. Unemployment Comp. Bd. of Review, 787 A.2d 284 (Pa. 2001)]; Grieb [v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002).

The courts have repeatedly held that for a rule violation to constitute willful misconduct, the violation must be done knowingly and deliberately. Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943 (Pa. Cmwlth. 2004); BK Foods, Inc. v. Unemployment Comp. Bd. of Review, 547 A.2d 873 (Pa. Cmwlth. 1988); Kriebel v. Unemployment Comp. Bd. of Review, 426 A.2d 1240 (Pa. Cmwlth. 1981); Frazier v. Unemployment Comp. Bd. of Review, 411 A.2d 580 (Pa. Cmwlth. 1980); Holomshek v. Unemployment Comp. Bd. of Review, 395 A.2d 708 (Pa. Cmwlth. 1979). Claimant’s inadvertent conduct here does not amount to willful misconduct.

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* An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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 - statute v. regulation - registration requirement - exceptions - recall to work

Dept. of Labor & Industry v. UCBR – Cmwlth. Court – June 8, 2016 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1085CD15_6-8-16.pdf?cb=1

The Court upheld that Board’s decision, which found that claimant was exempt from the registration requirement of 401(b)(1)(l), 43 P.S. 801(b)(1)(l), because she had been recalled to work.  The court rejected the Dept.’s argument that its regulation, 34 Pa. Code 65,11(g)(2), which required a recall date in writing, prevailed of the statute, 43 P.S. 801(b)(5), which did not.  The employer notice of recall in this case was oral, not written.

Section 401(b)(6) authorizes the Board to “waive or alter” the registration requirement where “compliance with such requirements would be oppressive or ... would be inconsistent with the purposes of this act.” 43 P.S. §801(b)(6). Stated otherwise, an untimely registration is not “a per se violation that automatically disqualifies a claimant from unemployment.” Department of Labor and Industry, 131 A.3d at 600.   The court agrees with the “the Board’s case-by-case approach to evaluating whether a claimant had good cause for failing to timely register for employment search services under Section 401(b)(1)(i) of the Law” and to exercise its judgment accordingly. Id. at 602.

The Board’s discretion to “waive or alter” the registration requirement “is aligned with the remedial and humanitarian objectives of the Law, as set out in 43 P.S. 752.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

IFP - denial - reasons

Lynch v. Gittelmacher – Cmwlth. Court – Kjune 8, 2016 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/2467CD15_6-8-16.pdf?cb=1

The lower court erred when it denied an IFP petition without giving reasons.  Pa. R.C.P. No. 240 (c)(3) requires that , “ If the petition is denied, in whole or in part, the court shall briefly state its reasons.”

An order denying in forma pauperis status in a civil case is a final and appealable order because “[a] litigant who is denied the ability to bring a cause of action due to his true inability to pay the costs is effectively put out of court.” Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005).

“A trial court’s belated 1925(a) opinion does not cure this problem, since the brief statement of reasons enables the party to correct any defects in the petition and the 1925(a) opinion does not.” Goldstein v. Haband Company, Inc., 814 A.2d 1214, 1215 (Pa. Super. 2002).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

drivers license - suspension - delay in reporting conviction

Capizzi v. DOT – Cmwlth. Court – June 23, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/315CD15_6-23-16.pdf?cb=1

As a general rule, delays in reporting driving convictions to DOT do not negate a license suspension, unless a) the delays are chargeable to DOT and b) the delay results in prejudice to the driver.  However, a suspension can be negated where the delay is extraordinarily long (e.g. seven or eight years) and results in prejudice, even if the delay is attributable to the clerk of courts, rather than DOT.  See, Gingrich v. Department of Transp., Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016).

custody - relocation

D.K.D. v. A.L.C. – Superior Court – June 15, 2016

http://www.pacourts.us/assets/opinions/Superior/out/J-A07008-16o%20-%201026969847323707.pdf?cb=1

The Court reversed the grant of mother’s relocation motion (Florida), where she had already moved with the child, and ordered the return of the child to Pennsylvania, in custody of father.

The court held that “the record will not sustain the trial court’s consideration of the § 5337(h) relocation factors. Specifically, the trial court erred in (1) finding that Mother would not further thwart Father’s relationship with L.D. following relocation; (2) ignoring that Mother’s principal motivation was to return to her native state of Florida and her concern for L.D.’s developmental condition was secondary; (3) accepting as adequate, Mother’s chiefly symbolic search for employment opportunities in Pennsylvania; and (4) concluding that Mother’s financial condition was so strained that relocation to Florida was unavoidable. “

These errors implicated five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and warranted reversing the trial court’s decision to grant Mother’s petition for relocation.   As the trial court's conclusions are unreasonable as shown by the evidence of record, the court could “....not accept the court’s conclusion that relocation is in L.D.’s best interest.”

The Court reversed the grant of mother’s relocation motion (Florida), where she had already moved with the child, and ordered the return of the child to Pennsylvania, in custody of father.

The court held that “the record will not sustain the trial court’s consideration of the § 5337(h) relocation factors. Specifically, the trial court erred in (1) finding that Mother would not further thwart Father’s relationship with L.D. following relocation; (2) ignoring that Mother’s principal motivation was to return to her native state of Florida and her concern for L.D.’s developmental condition was secondary; (3) accepting as adequate, Mother’s chiefly symbolic search for employment opportunities in Pennsylvania; and (4) concluding that Mother’s financial condition was so strained that relocation to Florida was unavoidable. “

These errors implicated five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and warranted reversing the trial court’s decision to grant Mother’s petition for relocation.   As the trial court's conclusions are unreasonable as shown by the evidence of record, the court could “....not accept the court’s conclusion that relocation is in L.D.’s best interest.”

appeals - per curiam affirmances - how to interpret

Brentwood Borough School District v. Held – Pa. Supreme Court – June 20, 2016

concurrence by Justice Dougherty  http://www.pacourts.us/assets/opinions/Supreme/out/J-50-2016-cs1.pdf?cb=1

There are two kinds of per curiam affirmances (PCAs):

            - PCAs adopting the opinion below --  thereby signaling the Court’s approval of the mandate and adoption of the reasoning of the court below, see, e.g., Commonwealth v. Greene, 81 A.3d 829 (Pa. 2013), and

            - PCAs affirming only the order below.  In these cases, the Court offers neither approval nor disapproval of the reasoning below; the Court either agrees with the mandate, or at a minimum, is unconvinced the appellant has made a sufficient showing to disturb that result. See Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (when Court issues per curiam affirmance, “[u]nless we indicate that the opinion of the lower tribunal is affirmed per curiam, our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition”) (emphasis in original). 

admin. law - Chevron deference - procedure for adoption of regs - reasons for change of regs

Encino Motorcars v. Navarro – US SCt – June 20, 2016 (6-2)

http://www.supremecourt.gov/opinions/15pdf/15-415_mlho.pdf

1.  Chevron deference is not warranted where a regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.

A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme. . . .  When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that “relatively formal administrative procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev­ron should apply. . . But Chevron deference is not warranted where the regulationis “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.

2.  One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. Where the agency has failed to provide even a minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. Agencies are free to change their existing policies, but in explaining its changed position, an agency must be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.”  Here, the regulation in question, which involved a change of position, was issued without a reasoned explanation.

One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the factsfound and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). That requirement is satisfied when the agency’s explanation is clear enough that its “path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974). But where the agency has failed to provide even that minimal level ofanalysis, its action is arbitrary and capricious and so cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43.

Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. . . . .Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” . . . . But the agency must at least “display awareness that it is changing position” and “show that there are good reasons for the new policy.” . . . .“In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” . . . .It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” . . . An arbitrary and capricious regulation of this sort is itself unlawful and receives no Chevron deference.

UC - willful misconduct - lateness - car problems

Shiloh Home Care v. UCBR – Cmwlth. Court – May 18, 2016 – unreported memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/1964CD15_5-18-16.pdf?cb=1

Claimant not guilty of willful misconduct for violating employer’s lateness policy.  Her car had broken down.  She could not afford to buy another car.  Her alternate means of transportation (family and friends) was not reliable.  The Court relied on Bell Socialization Services v. UCBR, 74 A.3d 1146 (Pa. Cmwlth. 2013).

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An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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)

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This is Gerry Studzinski’s case, MPLS-York.

foreclosure - lockout of owner - damage to property - insurance -

Davis v. Wells Fargo Bank – 3d Cir. – May  27, 2016

http://www2.ca3.uscourts.gov/opinarch/152658p.pdf

In this federal follow-up to a foreclosure case, Michael Earl Davis is pursuing a variety of claims against an entity 3 that he calls “Wells Fargo U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust, 2005-11.” It is the purported holder of Davis’s mortgage, and we will refer to it as “Wells Fargo” or “the bank.”1 Davis has also sued Assurant, Inc., believing it to be the provider of insurance on his home. His claims against both Wells Fargo and Assurant arise from damage that occurred to his house after Wells Fargo had locked him out of it, damage that went unrepaired and worsened into severe structural problems.

The United States District Court for the Eastern District of Pennsylvania dismissed Davis’s claims against Wells Fargo, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that claim preclusion and a statute of limitations barred recovery. We will affirm that portion of the District Court’s order.

The District Court also dismissed all of Davis’s claims against Assurant, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. The Court reasoned that Davis lacked standing to bring those claims because he sued the wrong corporate entity, namely Assurant, when he should have sued Assurant’s wholly-owned subsidiary, American Security Insurance Company (“ASIC”). That conclusion about standing was in error.

Standing is indeed a jurisdictional predicate, but, rightly understood, this case is not about standing at all.   An analysis of standing generally focuses on whether the plaintiff is the right party to bring particular claims, not on whether the plaintiff has sued the right party. The latter question goes not to standing and jurisdiction but to the merits of the claims themselves. Therefore, the District Court erred in considering the claims against Assurant under Rule 12(b)(1) rather than Rule 12(b)(6). That difference has important consequences here. In the end, the difference between those rules of procedure dictates that we vacate that portion of the District Court’s order dismissing Davis’s breach of contract claim against Assurant and remand for further proceedings.

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disability - ADA - charging admission for personal care attendants of disabled persons

Anderson et al. v. The Franklin Institute – E.D. Pa. – May 6, 2016

https://www.paed.uscourts.gov/documents/opinions/16D0367P.pdf

Held:  FI’s policy of charging separate admission fees for the government-funded personal care attendants (PCA) of people with disabilities violated the Americans with Disabilities Act, 42 USC 12181 et seq., and corresponding regulations, 28 CFR 36.101 et seq.  FI’s policy effectively doubled the cost of admission for the class of disabled persons who need PCAs to help with aspects of daily living.

In 1990, Congress enacted the ADA “to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’ ” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001). 11 Title III of the ADA and its implementing regulations prohibit “public accommodations,” including museums, theaters, stadiums, and other places “of exhibit entertainment,” from discriminating against people with disabilities. 42 U.S.C. § 12181(7)(C)&(H). Specifically, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination under the ADA includes failure to afford an individual or class of individuals the equal opportunity to participate in or benefit from a good, service, or facility as able-bodied individuals on the basis of disability. 42 U.S.C. § 12182(b)(1)(A)(ii); see generally 42 U.S.C. § 12101. An entity can also be held liable for ADA discrimination for failing to reasonably modify its policies and practices to accommodate individuals with disabilities absent proof “that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, a “public accommodation may not impose a surcharge on [disabled persons] to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide [those individuals] with the nondiscriminatory treatment required by the Act or this part.” 28 C.F.R. § 36.301(c).

The above statutory requirements and definitions have been condensed by the case law into a three part test: “[t]o state a claim of disability discrimination under Title III of the ADA, a plaintiff must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor or operator.” See, e.g., Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011) (internal citations omitted); Dempsey v. Pistol Pete's Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009).   The court held that that plaintiffs satisfied this test, concentrating its analysis on part two: the right to full and equal enjoyment of goods and services.

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UC - willful misconduct - rule violation - good cause for non-compliance - circumstances

Bell v. UCBR – Cmwlth. Court – April 26, 2016 – unpublished memorandum opinion*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1324CD15_4-26-16.pdf?cb=1

“The fact that the claimant knew the employer rules and did not strictly comply with it does not necessarily require a finding of willful misconduct.”  Circumstances may provide good cause for lack of compliance.

In this case, claimant had a very minor accident (knocked over a mailbox).  Employer rules required the immediate reporting of accidents.  Claimant didnt report until he returned to the office.  Circumstances included that: the accident was very minor; claimant’s cell phone did not work, nor did his partner’s; his partner, who was senior to him, advised that it was ok not to report until returning to the office; claimant reported immediately upon return to the office.

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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UC - willful misconduct - entry into ARD not proof of WM

Reading Water Authority v. UCBR – Cmwlth. Court – April 21, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1177CD15_4-21-16.pdf?cb=1

Held:  Where a claimant is fired for a criminal act, such as theft, subsequent acceptance into an ARD program is not sufficient proof of willful misconduct.  Bruce v. UCBR, 2 A.3d 667 (Pa. Cmwlth), app. denied, 12 A.3D 753 (Pa. 2010); UCBR v. Vereen, 379 A.2d 1228 (Pa. Cmwlt. 1977).

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UC - overpayment - non-fraud - partial v. total liability for benefits received

Stock v. UCBR – Cmwlth. Court – April 8, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/415CD15_4-8-16.pdf?cb=1

UCBR found that claimant made an “honest mistake” in failing to report part-time (PT) earnings over a period during which he received UC benefits.  Board also found that claimant “did not knowingly or intentionally” give false information or withhold information in order to obtain benefits, and that there was no fraud involved.

Under those circumstances, the Board erred in making a finding of “total ineligibility” and requiring claimant to reimburse the Dept. for all of the benefits that he had received.  Rather, claimant should be permitted to settle the overpayment by reimbursing the difference between the amount that he received and the amount that he should have received had his part-time wages been properly reported.

The Board erred in disqualifying him as to all benefits that he received while employed part-time. Instead, the Board should have calculated the non-fraud overpayment by first

            - determining the amount of benefits that Claimant would have received had he properly reported his PT earnings, and then

            - subtracting that amount from the amount Claimant actually received.

The difference between these sums would equal the amount of the non-fraud overpayment.

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federal courts - class action - unaccepted offer of judgment to indiv. plaintiff under FRCivP 68 does not moot class action

Weitzner v. Sanofi Pasteur Inc. – 3d Cir. April 6, 2016

http://www2.ca3.uscourts.gov/opinarch/143423p.pdf

Putative class action under Telephone Consumer Protection Act, 47 USC 227, not mooted by defendant’s unaccepted offer of judgment to individual plaintiff under FRCiv P 68, made before plaintiff filed motion for class certification, under Campbell-Eward v. Gomez, 136 S.Ct. 663  (2016), which overrules prior 3d Cir. precedent, Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004).

legislative standing

Markham et al. v.Wolf et al. – Pa. Supreme Court – March 29, 2016

majority     http://www.pacourts.us/assets/opinions/Supreme/out/J-22A_B-2016mo.pdf?cb=1

concurring http://www.pacourts.us/assets/opinions/Supreme/out/J-22A_B-2016co.pdf?cb=1

concurring http://www.pacourts.us/assets/opinions/Supreme/out/J-22A_B-2016co1.pdf?cb=1

dissent        http://www.pacourts.us/assets/opinions/Supreme/out/J-22A_B-2016do.pdf?cb=1

Held:  Legislators do not have standing to intervene in a case challenging the governor’s issuance of an executive order concerning direct care health workers.    The legislators’ interests purportedly impacted by the executive order do not involve unique legislative prerogatives, but, rather, are interests common to the general citizenry, which only remotely impact the legislators’ right to act as legislators.

UC - indpt. contractor - side business - necessity of findings on key issues

Spencer v. UCBR – Cmwlth. Court – April 1, 2016 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1318CD15_4-1-16.pdf?cb=1

Held:  Case remanded failure of UCBR to make findings about whether claimant was “customarily engaged in an independent trade or business,” as required under Section 4(l)(2)(B) of the Law, which  sets forth a presumption that one who performs services for wages is an employee — and thus not ineligible for benefits under section 402(h) — as opposed to an independent contractor — who is ineligible for benefits under section 402(h). Stage Road Poultry Catchers v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 34 A.3d 876, 889 (Pa. Cmwlth. 2011).

The presumption in favor of employee status is overcome and the claimant will be considered an independent contractor if the putative employer establishes that: (1) the claimant was free from control and direction in performing the services; and (2) the services are of a type customarily performed in an independent trade or business. CE Credits Online v. Unemployment Compensation Board of Review, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). The issue of whether an individual is an employee or independent contractor under section 4(l)(2)(B) of the Law is a question of law, subject to this Court’s review. Stage Road Poultry Catchers, 34 A.3d at 888.

First prong - The existence of an independent contractor agreement is not dispositive, although it is a significant factor to be considered. Stage Road Poultry Catchers, 34 A.3d at 889. Other factors include: whether there is a fixed rate of remuneration; whether taxes are withheld from the individual’s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the individual was expected to attend. Id.

Second prong - The following three factors generally guide our inquiry: (1) whether the claimant is able to work for more than one entity; (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services; and (3) whether the claimant worked on a job-by-job basis and was free to accept or reject assignments. Danielle Viktor, Ltd. v. Department of Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 797-98, 801-02 (Pa. 2006); Gill v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 26 A.3d 567, 570 (Pa. Cmwlth. 2011). Where the employee is free to accept or reject an assignment, or has sole control over the days in which he/she will work, the individual is generally not considered to look to a single employer for the continuation of such services. Danielle Viktor, 892 A.2d at 801.

Moreover, as part of the second prong, the putative employer must also demonstrate “that the claimant [was] customarily engaged in such trade or business in order to be considered self-employed.” Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc) (emphasis in original).   However, and most significantly, the Board failed to make any findings or legal determination as to whether Claimant was “customarily engaged” in the business of selling insurance. See Minelli, 39 A.3d at 598. Indeed, in its brief to this Court, the Board overlooks the “customarily engaged” analysis altogether.   We have repeatedly noted that in proceedings such as these, where the claimant is already receiving benefits, the question presented is not whether the work at issue would entitle the claimant to benefits, but, rather, whether it disqualifies the claimant from further receipt of benefits he is already receiving. Minelli, 39 A.3d at 598 n.7. On this reasoning, this Court has determined that the Law requires the putative employer to demonstrate “an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed.” Id. at 598 (emphasis in original)

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* An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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UC - employee v. indpt. contractor

PSU KnowHow v. UCBR – Cmwlth. Court – unreported* memorandum opinion – March 31, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1711CD15_3-31-16.pdf?cb=1  (36 pp.)

Held:    Some 300 tutors for private tutoring company held to be “employees” rather than independent contractors, resulting in affirmance of Department of Labor & Industry assessment of UC contributions against company. 

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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legislative power -improper delegation - lack of standards

West Philadelphia Achievement Charter School v. School District of Philadelphia – Feb. 16, 2016 - Pa. Supreme Court

majority (3)    http://www.pacourts.us/assets/opinions/Supreme/out/J-1-2016mo%20-%201025472856152411.pdf?cb=1

dissent (2)      http://www.pacourts.us/assets/opinions/Supreme/out/J-1-2016do%20-%201025472856152420.pdf?cb=1

Held: Sec. 696 of School Distress Law, 24 P.S. 6-691(c), violated Article II, sec. 1 (legislative power vested in General Assembly), because it gave power to a non-legislative body, without establishing adequate standards of restraint on the use of that power.

Article II, sec. 1 – legislative power – non-delegation

Article II, Section 1 of the Pennsylvania Constitution states that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, §1.  The nondelegation

rule has been described as a “natural corollary” to this text. . . . . The precept, which has its origins in the separation-of-powers doctrine . . . is of early lineage, see Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (Marshall, C.J.), and was expressed by political theorists who influenced the framers of the Constitution. See, e.g., JOHN LOCKE, SECOND TREATISE OF GOVERNMENT §141 (1690) (observing that legislative power “consists of the power to make laws, not to make legislators,” and indicating, moreover, that the legislature is not free to transfer its lawmaking powers to any other body because such power was delegated to the legislature by the people); cf. 1 WILLIAM BLACKSTONE,  COMMENTARIES ON THE LAWS OF ENGLAND *168 (1753) (remarking that a member of the House of Commons could not delegate his vote to a proxy “as he himself is but a proxy for a multitude of other people”). See generally BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS XI:6 (1748) (suggesting that political liberty requires a separation of legislative, executive, and judicial powers), quoted in THE FEDERALIST NO. 47 (James Madison).

Lack of standards – adequately defined standards

Legislative power may be delegated, so long as there has been a legislative establishment of primary objectives or standards and the entrustment to another entity to “fill up the details under the general [legislative] provisions[.]” . . . . So long as adequately-defined standards andmethodologies are provided by the Legislature, the administrative action involved may be as narrow as the grant or denial of a license, see, e.g., Casino Free Phila. v. Pa. Gaming Control Bd., 594 Pa. 202, 934 A.2d 1249 (2007), or as broad as the setting and adjustment of minimum and maximum wholesale and retail prices of a commodity to ensure fairness to producers and consumers and to regulate the supply of that commodity. See, e.g., Rohrer v. Milk Control Bd., 322 Pa. 257, 186 A. 336 (1936)

In the instant case,  the legislature had a salutary goal, but the means it chose to effectuate it were overly broad, basically carte blanche powers to suspend virtually any combination of provisions of the School Code – a statute covering a broad range of topics.  The Court’s decisions addressing the non-delegation rule have never deemed such an unconstrained grant of authority to be constitutionally valid.    The Distress Law also lacks any mechanism to limit the SRC’s actions so as to “protect[] against administrative arbitrariness and caprice.” Tosto v. Pa. Nursing Home Loan Agency, 460 Pa. 1, 12, 331 A.2d 198, 203 (1975); William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) (plurality);  Holgate Bros., 331 Pa. at 260, 200 A. at 675; Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 583 Pa. 275, 331, 877 A.2d 383, 417 (2005) (“PAGE”); Blackwell v. State Ethics Comm’n, 523 Pa. 347, 359, 567 A.2d 630, 636 (1989));  Bell Tel.v. Driscoll, 343 Pa. 109, 116, 21 A.2d 912, 915-16 (1941)).

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UC - voluntary quit - temporary refusal to return to full-time work after childbirth

Havrilchak v. UCBR – Cmwlth. Court – December 14, 2015 – reported by order of February 14, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1054cd15_2-18-16.pdf#search=%22havrilchak%22

Woman returning to work after pregnancy held to have quit her job without good cause when her request for a limited period of part-time work was refused and she rejected employer’s offer of full-time work.  The employer was Physician’s Health Alliance.

The court saw claimant’s request as one to “unilaterially change the terms of her employment from full-time to part-time,” Senkinc v. UCBR, 601 A.2d 418, 420 (Pa. Cmwlth. 1991).   Because Employer offered Claimant full-time employment, which she refused, the totality of the circumstances reflect a voluntary quit, not a termination. Id.; see Andrevich v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 658 C.D. 2010, filed March 7, 2011) (unreported), 2011 WL 10843696 (claimant’s refusal to return to work full-time after maternity leave constitutes a voluntary quit). As a consequence, Claimant is ineligible for benefits unless she can establish a necessitous and compelling reason for leaving her employment.

No good cause to have refused employer offer - Claimant asserted that a medical condition precluded her from returning to work full-time but didn't present evidence of that.  In her questionnaire, Claimant stated she left Employer for health reasons -- “post-partum depression anxiety.   A claimant has the burden to establish a medical condition as a compelling reason to leave work. Genetin v. UCBR, 451 A.2d 1353 (Pa. 1982).   Part of that burden involves submitting documentation substantiating a claimant’s medical condition to her employer. Bonanni v. UCBR, 519 A.2d 532 (Pa. Cmwlth. 1986).   Here, the record contains no indication that Claimant was unable to return to work full-time based on medical necessity.  Claimant admitted her doctor released her to return to work.

Claimant gave birth on October 18, was released to return to FT work on January 3, and was given an extra three weeks to recuperate.   Based on a “totality of circumstances,” the court rejected her argument that she had been fired, or that she had good cause to refuse the employer offer of full-time work.

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N.B.  This opinion was not initially reported.   It was later reported on motion of the UCBR.  Claimant was pro se.

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UC - appeal - elec. transmission - timeliness - Board recorded receipt w/in appeal period

Chartiers Community Mental Health & Retardation Center v. UCBR – Cmwlth. Court – March 10, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1677CD15_3-10-16.pdf?cb=1

Court affirmed UCBR decision that claimant’s appeal was timely under 34 Pa. Code 101.82(b) where the UCBR recorded receipt of the email appeal within required period, even though the Board was unable to open the secure message box in the email.    On the date it received the appeal, the Board emailed claimant’s counsel that:  a) it couldn’t open the secure message box; b) claimant should provide the information as an attachment or in the body of an email.  “The Board did not provide a deadline” foe doing any of this.

Citing  Mountain Home Beagle Media v. UCBR, 955 A.2d 484 (Pa. Cmwlth. 2008), Roman-Hutchinson v. UCBR, 972 A.2d 1286 (Pa. Cmwlth. 2009), and McClean v. UCBR, 908 A.2d 956 (Pa. Cwmlth. 2006), the Board and Court held that the appeal was timely under 34 Pa. Code 101.82(b), because the Board recorded receipt of the appeal within the required time. 

Even though an appellant who uses electronic transmission accepts the risk of non-receipt, “a risk...is not a certainty.  As long as the electronic transmission is received prior to the expiration of the appeal period, the regulation affords the Board discretion to instruct the employer or claimant on how to proceed if there is an issue with readability. This is not unlike this Court’s own internal operating procedures, which direct the Chief Clerk to time-stamp written communication that evidences an intention to appeal with the date of receipt and to advise the party by letter of  the procedures necessary to perfect an appeal, as well as the time within which the party must file a fully conforming petition for review in order to preserve the date of receipt of the original non-conforming request to appeal. See Commonwealth Court Internal Operating Procedure No. 211, 210 Pa. Code. § 69.211 (Petition for Review; Clarification). The Board acted fully within its discretion in directing Claimant to resend the unreadable segments of her email once it had received her appeal.

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UC - willful misconduct - reporting absence - reasonable steps

Health Care Stat, Inc. v. UCBR – Cmwlth. Court – March 2, 2016 – unreported memorandum opinion*

http://www.pacourts.us/assets/opinions/Commonwealth/out/906CD15_3-2-16.pdf?cb=1

No willful misconduct where claimant reported her absence in a reasonable way, even though not strictly in accordance with the employer rule.

An employer has not established willful misconduct if an employee has reported an absence in a reasonable manner, even if the manner is not in accord with the employer’s rule. Buscemi v. UCBR, 485 A.2d 1238 (Pa. Cmwlth. 1985). Here, substantial evidence exists to support the Board’s conclusion that Claimant made a reasonable effort to notify Employer that she would not be present on a particular day. . . .Further, Employer failed to present evidence that an established policy regarding call off procedures dictated that only notification to a supervisor or the Director would suffice.

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* An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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