Tax sales - notice - "additional notification efforts"

Delaney v. Montgomery County Tax Claim Bureau – Cmwlth. Court – August 27, 2019 – unreported memorandum decision**

Held:  Tax sale set aside because of failure of TCB to make proper “additional notification efforts”  concerning tax sale, as required by RETSL sec. 607.1, 72 P.S. sec. 5860.607a(a), when mailed notification is returned w/o signed return receipt or “under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee.”

Burden of proof – filing exceptions overcomes presumption of regularity – strict construction – due process

“It is the taxing authority’s burden to prove compliance with the statutory notice provisions. Casanta v. Clearfield County Tax Claim Bureau, [435 A.2d 681, 683 (Pa. Cmwlth. 1981)]. In Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)], our Supreme Court established that a prima facie presumption of regularity in a tax sale exists until the contrary is shown. In Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, [557 A.2d 38 (Pa. Cmwlth. 1989)], this Court, harmonizing Casanta with Hughes, held that the filing of exceptions overcomes the presumption of regularity in the tax sale; accordingly, the filing of exceptions requires a bureau to prove that it has complied with the statutory notice requirements. Strict compliance with those requirements is required in order to ensure due process, and the burden to show strict compliance lies exclusively with the tax claim bureau. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289 (Pa. Cmwlth. 1996).” In re Tax Sale of Real Property Situate in Paint Township, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).  (emphasia added)  It is well settled that the statutory notice provisions in the Tax Sale Law “must be strictly construed lest a person be deprived of property without due process.” Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013). The tax claim bureau has the burden of proving its compliance with the notice provisions. Id.

Significant doubt about actual receipt of notice – additional notice requirements – Sec. 607.1 – 72 P.S. sec. 5860.607a(a)

When there is “significant doubt” about actual receipt of notice of a tax sale, the tax claim bureau must undertake additional efforts to give notice

[B]efore the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.  72 P.S. §5860.607a(a) (emphasis added). 

In this case, the TCB admittedly did none of those extra things, which the court called “the mandatory minimum search required” by RETSL.

Newspaper notice – fact of notice v. content of notice

The TCB presented evidence that notices had been placed in the local newspapers and legal journal.  However, the it not provide evidence of the content of those notices.  “[A]bsent any evidence concerning the content of the newspaper advertisements, the trial court erred in holding that the Bureau established compliance with the publication requirement of Section 602(a) of the Tax Sale Law.

Focus of RETSL on TCB compliance with each and every element of the statutory requirements

It is well settled that a failure by a tax claim bureau to comply with each and every statutory requirement will nullify a tax sale. Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003). Additionally, we have repeatedly explained that where notice is at issue, the proper 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. Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099 (Pa. Cmwlth. 2010).

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

Pennsylvania Bulletin of August 31, 2019

Table of contents   https://www.pabulletin.com/secure/data/vol49/49-35/index.html

Entire issue             https://www.pabulletin.com/secure/data/vol49/49-35/49-35.pdf

Attorneys – discrimination, bias, prejudice – proposed rule of professional conduct – comments due by September 30, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1309.html

The Disciplinary Board of the Supreme Court of Pennsylvania plans to recommend to the Court that it adopt amendments to Pennsylvania Rule of Professional Conduct  8.4 relating to misconduct, as set forth in Annex A. This proposed rule amendment is intended to make it professional misconduct for a lawyer, in the practice of law, to intentionally manifest bias or prejudice, or engage in harassment or discrimination.

Expungements – disciplinary records - professional licenses – IRRC approval of proposed regulation

https://www.pabulletin.com/secure/data/vol49/49-35/1336.html

Consumer – unfair market trade practices – proposed OAG regulations – comments due in 30 days – public hearing September 11, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1320.html

child abuse - expungement - continuance of hearing

M.W. v DHS– Commonwealth Court – Auguset 23, 2019 – reported, precedential opinion

Held:  DHS “misapplied the law and entered a manifestly unreasonable order” by denying the request for a continuance of the hearing by an incarcerated parent.   Parent failed to request a waiver of a timely hearing, but there is no statute or other law requiring an accused parent to file such a waiver.   The case was remanded for a new hearing in the merits “at a time mutually convenient to” the parent and CYS.

DHS was mandated to but did not “make reasonable efforts to coordinate the hearing date,” as required by 23 Pa. C.S. 6341(c.2), which requires a hearing within 90 days from the date of the scheduling order “unless all parties have agreed to a continuance.”  Id.

From the opinion:

Section 6341(c.2) of the Child Protective Service Law does not mandate the filing of a waiver of timeliness in order for a continuance to be granted. Section 6341(c.2) states that the Department “shall make reasonable efforts to coordinate the hearing date[.]” 23 Pa. C.S. §6341(c.2)(2). Once that is done, the Department will begin the hearing “within 90 days” of the scheduling order unless the parties agree to a continuance. 23 Pa. C.S. §6341(c.2)(3). 

There is no evidence that the Department made reasonable efforts to coordinate the hearing date with Mother and CYS, as required in Section 6341(c.2). The ALJ waited until the day of the hearing to inquire into CYS’s position on the continuance request. Had this inquiry been made earlier, CYS may have agreed. 

The indicated report would have simply remained on the ChildLine Registry until a hearing on Mother’s appeal could be held at a time when Mother could attend. It was Mother, not CYS, that bore the consequence of a hearing postponement. 

The Bureau cited Section 6341(c.2)(3) of the Child Protective Services Law to support its conclusion that Mother’s waiver of timeliness was required. However, this was error. 

There is no “waiver of timeliness” required from either party in order for a continuance to be granted. Although CYS could have agreed to a continuance, its acquiescence was not necessary. The ALJ still had discretion to grant Mother’s continuance request. Luzerne County, 203 A.3d at 398. Mother’s waiver was unnecessary and redundant because she, the alleged perpetrator, was the party requesting the continuance. Her act of making the request in itself waived the 90-day requirement. 

We hold that the Bureau misapplied the law and entered a manifestly unreasonable order by denying Mother’s continuance request for the sole reason that she did not file a waiver of timeliness. Accordingly, the adjudication of the Bureau is reversed and the matter is remanded to the Bureau for a new hearing on the merits of Mother’s appeal at a time mutually convenient to Mother and CYS. 

Findlaw - statutory and case law - Pennsylvania et al.

The General Assembly used to have a link to a Westlaw site that had an unofficial compilation of  the complete Pennsylvania statutes.  It used to be here, in the right-hand column under “additional resources.”  No longer.  Not sure when that happened, but it’s not there, so it’s cumbersome to find statutes at times, especially “unconsolidated statutes.”

I’m glad to say that I stumbled across Findlaw, where you can easily find and access all state statutes, consolidated and unconsolidated. 

It also provides case law.   

Here’s what it says.

FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system. For more detailed codes research information, including annotations and citations, please visit Westlaw.

FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs.

UC - UCBR findings - substantial evidence - court review

Spradlin v. UCBR – Cmwlth. Court – unreported* memorandum opinion – August 16, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/159CD19_8-16-19.pdf?cb=1

Finding of overpayment reversed.  UCBR finding not supported by substantial record evidence.

Notwithstanding that the UCBR is “the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence[,]” the record evidence does not support the UCBR’s findings and conclusions in this case. Sipps, 181 A.3d at 484 (quoting Ductmate Indus., 949 A.2d at 342); see Goldman v. UCBR (Pa. Cmwlth. No. 2392 C.D. 2014, filed September 25, 2015); see also VanKersen v. UCBR (Pa. Cmwlth. No. 1771 C.D. 2014, filed April 21, 2015).8 

As substantial record evidence does not support the UCBR’s findings.... the UCBR erred by concluding that Claimant was ineligible for....benefits.... [and was overpaid].

8 This Court acknowledges that its unreported memorandum opinions may only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Goldmanand VanKersen are cited herein for their persuasive value. 

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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

UC - jurisdiction of UCBR to consider merits when ER asks only for relief from charges

Martin v. UCBR – Cmwlth. Court – JULY 25, 2019 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/1354CD18_7-25-19.pdf?cb=1

Held:   Employer letter requesting only relief from charges does not act as an appeal on the merits on the case, even where filed within the applicable appeal period.

This Court has repeatedly held that “the filing of an appeal from an eligibility determination is separate and distinct from the filing of a request for relief from charges.” See Ruffner v. UCBR, 172 A.3d 91 (Pa. Cmwlth. 2017) (quoting First Nat’l Bank of Bath v. UCBR, 619 A.2d 801 (Pa. Cmwlth. 1992)); see also Myers v. UCBR (Pa. Cmwlth., Nos. 1856 & 1857 C.D. 2012, filed June 6, 2013), 2013 WL 3156565 (unreported).11 Stated otherwise, a request for relief from charges will not serve as an appeal from an eligibility determination. 

Here, the UC Service Center determined Claimant was not ineligible for UC benefits under Section 402(b) of the UC Law on the basis she had a necessitous and compelling reason to resign her employment. The notice of determination indicated that the final day to timely appeal that determination was March 12, 2018, and that the determination would become final absent the filing of an appeal by that date.

The record reveals that Employer initiated this matter by mailing a letter to the Employer Charge Unit within the 15-day appeal period, which explicitly stated, “[w]e respectfully request a relief of charges” and “this is not a request for an appeal; it is a request for a noncharge.” (bold and underline emphasis added).

Despite that express language, the Employer Charge Unit apparently assumed the letter was an appeal and transferred the letter to the UC Service Center, which then transferred the letter to the referee office, and a hearing ensued before the referee on eligibility. In reversing the UC Service Center’s determination and concluding that Claimant was ineligible for benefits under Section 402(b), the referee and the Board also treated Employer’s explicit request for relief from charges as an appeal from the UC Service Center’s eligibility determination. The referee and the Board erred in doing so because Employer was not appealing that determination.

In short, because Employer expressly did not appeal the UC Service Center’s determination finding Claimant not ineligible for benefits, that determination became final and binding on the parties and, consequently, deprived the referee and the Board of jurisdiction to issue the subsequent decisions reversing the UC Service Center’s determination and finding Claimant to be ineligible for benefits. See Section 501(e) of the UC Law, 43 P.S. §821(e); see also Section 302.1(e)(1) of the UC Law,12 43 P.S. §782.1(e)(1) (pertaining to relief from charges and providing that where a party’s eligibility is finally determined under Section 501(e), such determination shall not be subject to collateral attack in proceedings under Section 302.1). We therefore hold that the Board erred in concluding that Claimant was ineligible for benefits under Section 402(b) of the UC Law.

Editor’s note:  I suggest that someone move for publication of this opinion, which I think could be helpful and important in the frequent case (I think) where the UCBR reaches the merits of cases on ER request for relief from charges long after the time for appeal has passed.  What do others think?

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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

MDJ courts - execution on $ judgment outside of county of entry - MDJ Rule 402

Rules             http://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%2010407321169206194.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010407321169206208.pdf?cb=1

Final report  http://www.pacourts.us/assets/opinions/Supreme/out/report%20-%2010407321169206198.pdf?cb=1

(2) The magisterial district judge in whose office the judgment was rendered or entered shall accept all timely requests for an order of execution on that judgment, including when the location of the property to be levied upon is located outside the county of the magisterial district where the judgment was rendered or entered. 

UC - willful misconduct - inconsistent enforcement v. disparate treatment

Gordon Terminal Service Co. v. UCBR – Cmwlth. Court – Juine 3, 2019 – reported, precedential

http://www.pacourts.us/assets/opinions/Commonwealth/out/1603CD18_6-3-19.pdf?cb=1

Held:  Where the evidence showed that the employer’s enforcement of a rule against use of cell phone at work was inconsistent, the employer did not establish the existence of a rule that would support a finding of willful misconduct.

Although Employer may have had a written policy prohibiting the use of cell phones without special approval, in reality the Board found that, if Employer had such a policy, Employer engaged in “inconsistent enforcement” of it. (Id. at 123a.) As such, Employer did not establish the existence of a rule that could support a finding of willful misconduct.

See Great Valley Publ’g., 136 A.3d at 537 (holding that where employer admittedly tolerated violations of its policy governing employees’ internet use, employer failed to establish that claimant’s use of internet amounted to willful misconduct); Penn Photomounts, Inc. v. UCBR, 417 A.2d 1311, 1314-15 (Pa. Cmwlth. 1980) (holding that although employer had formal policy for reporting absences and employer was aware that its employees followed less formal practice to report absences and tolerated less formal reporting practice, use of less formal practice did not constitute willful misconduct). Thus, Employer failed to meet its burden to prove that Claimant violated Employer’s work rule

Inconsistent enforcement v. disparate treatment

The Board did not determine that Employer engaged in disparate treatment but rather that Employer did not meet its burden to establish willful misconduct due to its inconsistent enforcement of a work rule. The Board, in support of its decision, wrote:  The Board is unable to substantiate any error in the Referee’s willful misconduct analysis. The employer contends that the claimant’s testimony is insufficient to establish disparate treatment regarding cell phone usage in the workplace. Nonetheless, the claimant’s testimony was more than sufficient to establish inconsistent enforcement of an alleged work rule stating that cell phone use is not permissible without special approval. (Id. at 123a.) 

The distinction between the two concepts—i.e., disparate treatment and inconsistent enforcement of an alleged work rule—is nuanced and subtle. Disparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. In situations of inconsistent enforcement, an employer cannot prove the “deliberate violation” required by Grieb necessary for a determination of willful misconduct. See Grieb, 827 A.2d at 425 (identifying “deliberate violation of an employer’s rules” as a form of willful misconduct). Here, the Board concluded that Employer failed to establish a violation of Employer’s rules due to Employer’s inconsistent enforcement of its cell phone prohibition and, therefore, failed to prove willful misconduct. As a result, the affirmative defense of “disparate treatment” is inapplicable.

PFA - temporary custody - best interest analysis not required to award temporary custody in PFA case

C.H.L. v. W.D.L. – Superior Court – July 8, 2019 – published, precedential

http://www.pacourts.us/assets/opinions/Superior/out/J-A09012-19o%20-%2010405511568203428.pdf?cb=1

Held:  Lower court’s “meticulous” opinion in PFA case involving award of temporary custody to wife upheld on appeal.  The opinion detailed the “very calculated, complex, web of domestic violence, control and intimidation by Husband against Wife.”  The specific and important language was that: 

Absent guidance from our Legislature or our Supreme Court, we conclude that a PFA court need not conduct a best interests custody analysis to award temporarycustody as form of relief under section 6108 of the Protection From Abuse Act. 

The purpose of the Protection From Abuse Act is to protect victims of domestic violence from the perpetrators of that type of abuse and to prevent domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013)(citation omitted). It is well-settled that trial courts have the authority to enter protection from abuse orders that conflict with custody orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). 

The PFA Act allows the court to award temporary custody or establish temporary visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4). Where the court finds after a hearing that the defendant has inflicted serious abuse, the court may deny the defendant custodial access to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodial rights, the court shall consider, and may impose on a pre-existing custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).  

Custody wise, a PFA order is not designed to impose anything but emergency relief. See Dye for McCoy, supra, 621 A.2d at 145. To understand this, look no further than the PFA Act: “Nothing in this paragraph [relating to temporary custody as a form of relief] shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). 

But while the domestic violence emergency is still pending, a PFA order may alter a pre- existing custody order and remand for clarification to avoid conflict. See Dye for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence.” Id. 

Moreover, the PFA Act does not require a child to be physically struck before a court can award temporary sole custody to a plaintiff. The court may do so even though the defendant has inflicted serious abuse upon the plaintiff alone. See § 6108(a)(4)(iii)(B). 

UC - late appeal - nunc pro tunc allowed - postal authorities

Bankers Like & Casualty v. UCBR – reported, precedential opinion – June 27, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1590CD18_6-27-19.pdf?cb=1

Held:  Employer permitted to appeal nunc pro tunc where there was an administrative breakdown by postal authorities, and:

• Envelope containing employer appeal had illegible postmark
• Appellant’s attorney testified w/o contravention that appeal was timely mailed
• Appeal was returned, mistakenly marked undeliverable and unable to forward
• Attorney then promptly filed another petition for appeal to the Board

The court relied on Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) and Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) in granting a nunc pro tunc appeal, holding that “[w]e must conclude that Attorney Weissman’s uncontroverted testimony, along with the documentation which he produced, while insufficient under the law to prove timely mailing, did establish that an administrative breakdown by the postal service caused the untimely appeal, and satisfies all the necessary elements to permit the filing of the appeal nunc pro tunc.”

admin. law - duty of hearing officer - pro se litigant

Frederick Mutual Insurance Co. v. Insurance Department – precedential, reported – June 21, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1528CD18_6-21-19.pdf?cb=1

Duty to conduct fair and impartial hearing   

The General Rules of Administrative Practice and Procedure (GRAPP). See Section 56.1 of the Pennsylvania Code, 31 Pa. Code § 56.1. Section 35.189 of GRAPP specifies: “It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order.” 1 Pa. Code § 35.189.

Pro se litigants

This Court has declared relative to Department hearings: The Pennsylvania Supreme Court has long held that ‘any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.’ Vann v. UCBR . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)).

Referee must be “unusually cautious” with pro se litigant – make sure all issues fully and fairly  examined

More recently, this Court clarified that, ‘referees should reasonably assist pro se This Court has also concluded “that where a person proceeding before an administrative agency is not represented by counsel, the hearing officer must be unusually cautious to insure that all issues are fully examined.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992). To that end, an administrative tribunal[] has the power to ask questions to clarify matters and to elicit relevant information not presented by counsel. Dayoub v. State Dental Council [&] Examining B[d., 453 A.2d 751, 753 (Pa. Cmwlth. 1982)]. [It] will have overstepped its bound only when it heatedly questions and argues with [a party] and [his/her] witnesses ‘in such a manner that [the presiding officer’s] behavior . . . [is] much more in line with that of a prosecuting attorney than of a neutrally detached and impartial decision-maker.’ [Id.]. Shah v. State Bd. of Med., 589 A.2d 783, 797 (Pa. Cmwlth. 1991).  

In the instant matter, the Presiding Officer “reasonably assist[ed] the litigant to elicit facts that [were] probative for [her] case[,]” Hackler, 24 A.3d at 1115, to ensure that both parties had the opportunity to fully present their cases. There is no evidence that the Presiding Officer impermissibly advocated for the litigant, assisted her in a manner that biased the proceedings, or gave the appearance of impropriety. Rather, it is clear from the record that the Presiding Officer was ensuring that all relevant facts were available for the Commissioner’s review. Accordingly, the Presiding Officer did not irreparably bias the proceedings or give the appearance of impropriety.

mailbox rule - presumption of receipt requires adequate proof of mailing - regular place of mailing

Pinnacle Health v. UCBR – Cmwlth. Court – reported opinion – May 31, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1025CD18_5-31-19.pdf?cb=1

Employer held to have “proper cause” for failure to attend UC hearing, due to non-receipt of hearing notice.    No presumption of receipt of notice of hearing, since there was inadequate proof of mailing. 

The “presumption of receipt is ‘inapplicable’ in the absence of proof that the notice was mailed. ‘[U]ntil there is proof that a letter was mailed, there can be no presumption that it was received.’” Id. (quoting Leight v. UCBR, 410 A.2d 1307, 1309 (Pa. Cmwlth. 1980) (alteration in original)). Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016).

The fact that there was a rule requiring hearing notice to be mailed does not show that it was mailed.   “[T]he mere existence of a rule requiring an act to be performed by a public official is not sufficient to raise a presumption that the act was in fact performed, i.e., the mailing of the notice.” Blaset v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1993).  Instead, “The presumption only comes into play when there is on record some other indication that the act in question had been performed such as a notation to that effect made by a local bureau official that the letter had been deposited in the mail.” Id.

That said, proof of actual mailing is not required unless there is a rule or regulation that specifies otherwise.  C.E. v. DPW, 97 A.3d 828, 833 (Pa. Cmwlth. 2014).  Rather, “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Department of Transportation v. Brayman Construction Co.—Bracken Construction Co., 513 A.2d 562, 566 (Pa. Cmwlth. 1986) (quoting Christie v. Open Pantry Marts, 352 A.2d 165, 166-67 (Pa. Super. 1975)). “It is well settled that the presumption in the mailbox rule is not nullified by testimony denying receipt of the item mailed.” Brayman Construction Co., 513 A.2d at 566.

There was no proof of mailing in this case.   Clerk in referee office testified that she prepared the notice and put it in a basket on her desk, after which it was retrieved by a person from the mail room.  But there was no testimony about postage being affixed or how notices are actually mnailed.  The fact that the notice contained a “date of mailing” does not, without more, establish proof of mailing. See Douglas, 151 A.3d at 1193. 

Regular place of mailing –  Reading Blast, 645 A.2d at 449 (using “in the mail”), and Brayman, 513 A.2d at 566 (using “regular place of mailing” and “usual place of mail”), and  Douglas, 151 A.3d at 1191 (using “in the mail”) together, the Court here held that “the regular place of mailing is the place where the properly addressed letter, with postage affixed, enters the U.S. Mail, whether that be a mailbox, a post office, mail room, or other location where a mail carrier retrieves the mail. Accordingly, in order for the Board to utilize the presumption of regularity in order to invoke the presumption of receipt, it must present evidence regarding how properly addressed items, with proper postage affixed, customarily enter the mail or, alternatively, show “some other indication that the act in question had been performed” such as a notation in the record indicating that “the letter had been deposited in the mail.” Blast, 645 A.2d at 449.

There was not such evidence in this case.  The referee clerk “could not and did not address how and when the notices she prepares enter the mail or whether the notices receive the proper postage prior to their mailing, as she only places mail in a basket on her desk, which must then be picked up and further processed. Indeed, the clerk acknowledged that the basket on her desk was not the place where the notices customarily entered the U.S. Mail. Accordingly, the court remanded to the Board “for consideration of the evidence Employer submitted regarding the merits of Claimant’s appeal.”

Housing - Sec. 8 - termination - conduct in immediate vicinity

Cox v. Johnstown Housing Authority – Cmwlth. Court – reported decision – June 5, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/1329CD18_6-5-19.pdf?cb=1

Held:  Public drunkenness conviction based on conduct that took place 1.9 miles from sec. 8 residence could not support termination of sec. 8 assistance, where the HA “failed to present one scintilla of evidence” that the resident’s conduct “made other residences of the premises” where he lived, “or persons in the immediate vicinity of those premises, feel insecure or anxious for tehir health, safetly or peaceful enjoyment.”  Thus, there was “no statutory or regulatory basis on which to terminate” the resident’s sec. 8 benefits.  A decision to terminated “may not be based on mere speculation that the residents or persons in the immediate vicinity. . .could or may be threatened at sime point in the future.”

From the opinion –

This Court has recognized:   The relevant provisions of the Housing Act and its associated regulations, which apply throughout the country, provide particularized standards and criteria that all public housing authorities must consider and follow when reviewing an application for public housing. These criteria assure that housing authorities will use only those factors deemed permissible for consideration by the Housing Act and its associated regulations when reviewing applications for public housing and limit the discretion that a public housing authority may exercise in deciding whether to deny applications for public housing. Because a public housing authority’s decision to grant or deny applications must be in accordance with the statutory and regulatory criteria, the public housing authority’s discretion is certainly not ‘unfettered’ and, therefore, should not be ‘unassailable.’ Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth. 2013)]. Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc)

           

Congress did not state in Section 8 of the Housing Act that any and all criminal activity, wherever it occurs, is grounds to terminate Section 8 Program benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that Cox signed place him on notice that any and all criminal activity and/or alcohol abuse no matter where it takes place constitute grounds upon which the Authority could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act and applicable HUD Regulations, the Authority must prove, and the court must find that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such activity threatens the health, safety, or right to peaceful enjoyment of residents and/or persons in the immediate vicinity thereof. The second element demands proof of a threat to the health, safety or right to peaceful enjoyment of residents and/or persons  in the immediate vicinity on or near the Section 8 Program leased premises. 14 Thus, it is not the occurrence of the criminal and/or alcohol-related act that is needed to jeopardize Cox’s assistance or the possibility that it could occur, but there must also be proof that the health, safety or peaceful enjoyment rights of those who reside in the “immediate vicinity” of Cox’s premises was “threatened” by that act. 24 C.F.R. § 982.551 [emphais deleted).

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UC - off-duty misconduct not willful misconduct unless it affects ability to perform job

County of Allegheny v.  UCBR – Cmwlth. Court – May31, 2019

Claimant convicted of off-duty DUI was not disqualified under sec.  3 (off-duty misconduct)  or sec.  402(e)(job-related willful misconduct), even where Employer code of conduct authorized termination of employment for criminal conviction, even when off-duty or unrelated to employment.

From the opinion –

Willful misconduct -402(e) -  Employer argued that Claimant’s off-duty DUI was willful misconduct under sec.402(e), because it violated the employer code of conduct. The court rejected this argument,  noting that a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with this work.[”]  Palladino v. UCBR, 81 A.3d at 1103.   The fact that Claimant could be discharged for unlawful conduct does not make the misconduct work-connected for purposes of Section  402(e). See Palladino, 81 A.3d at 1103 (citing Robinson, 546 A.2d at 753).  “Off-duty misconduct will not support a finding of willful misconduct under Section 402(e) unless it extends to performance on the job[.]” Palladino, 81 A.3d at 1101 (quoting Burger, 801 A.2d at 491) (brackets omitted); see also Webb v. Unemployment Comp. Bd. of Review, 670 A.2d 1212, 1216 (Pa. Cmwlth. 1996)  There is a critical distinction between the employer’s right to terminate employment and the state’s right to deny unemployment benefits.’ ” Id. (quoting Blake v. Unemployment Comp. Bd. of Review, ... 425 A.2d 43, 45 ( [Pa. Cmwlth.] 1981).

Sec.3 –off-duty misconduct –  The Court affirmed the Board holding that Claimant was not ineligible under sec. 3.   Under Section 3 of the Law, the employer bears the burden to prove “(1) that the claimant’s conduct was contrary to acceptable standards of behavior and (2) that the claimant’s unacceptable conduct directly affects or reflects upon the claimant’s ability to perform his assigned duties.” Palladino, 81 A.3d at 1101 (quoting Frazier, 833 A.2d at 1184–85). Both prongs of the test must be satisfied. Gillins, 633 A.2d at 1154. Notably, Employer does not claim that the unacceptable conduct, i.e., the criminal DUI conviction, affected Claimant’s ability to perform his job duties as a project coordinator⁷ and does not challenge the Board’s determination that the conviction did not affect Claimant’s ability to perform his job. As such, because Employer did not establish one of the two necessary prongs, ineligibility for benefits under Section 3 cannot be established.

UC - sec. 402.6 - incarcerated person - weekends only - held eligible

Harmon v. UCBR – Pa. Supreme Court – April 26, 2019

majority – http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656612847.pdf?cb=1

We granted discretionary review to determine whether the Commonwealth Court erred in holding appellant Daniel Harmon was disqualified from receiving unemployment compensation benefits pursuant to Section 402.6 of the Unemployment Compensation Law (the Law), 43 P.S. §802.6(a) (“[a]n employe shall not be eligible for payment of unemployment compensation benefits for any weeks of unemployment during which the employe is incarcerated after a conviction”). We hold appellant, who was serving a sentence of incarceration on weekends only, was not disqualified from receiving unemployment compensation benefits, and we therefore reverse the order of the Commonwealth Court.  (24 pps)

Saylor – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656613908.pdf?cb=1

Donohue – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656614403.pdf?cb=1

Wecht – concurring

http://www.pacourts.us/assets/opinions/Supreme/out/Concurring%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656615044.pdf?cb=1

Mundy – dissenting

http://www.pacourts.us/assets/opinions/Supreme/out/Dissenting%20Opinion%20%20Reversed,%20Remanded,%20Jurisdiction%20Relinquished%20%2010396908656615182.pdf?cb=1

nurses - licensing - suspension - misdemeanor disorderly conduct not a crime of moral turpitude

Dunagan v. Bureau of Prof. & Occup. Affairs – Cmwlth. Court – unreported* memorandum opinion – April 10, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/546CD18_4-10-19.pdf?cb=1

One who commits disorderly conduct by, for example, persisting in making “an unreasonable noise,” 18 Pa.C.S. §5503(a)(2), or using “obscene language,” id. §5503(a)(3), has not committed a crime of moral turpitude with the requisite reprehensible state of mind under 63 P.S. §666(a)(5).  Moreover, disorderly conduct, even graded as a third degree misdemeanor, is wholly unlike the crimes which this Court has previously deemed crimes of moral turpitude, such as mail fraud, theft by deception, conspiracy to possess and distribute controlled substances, etc. See Krystal Jeep; Foose; Startzel; Yurick. Thus, because there are numerous iterations of disorderly conduct wherein the actor cannot be said to have committed a crime of moral turpitude, the Board erred in suspending Petitioner’s practical nursing license for six months based upon her nolo contendere plea to disorderly conduct. Accordingly, the order of the Board is reversed

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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