custody - 3d party standing - amended rules

Rules              http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104495259107069630.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20-%20104495259107069274.pdf?cb=1

Comment — 2020

Act of May 4, 2018, P.L. 112, No. 21, amended 23 Pa.C.S. § 5324 by adding a new class of third-party standing for individuals seeking custody of a child whose parents do not have care and control of the child. The individual seeking custody may or may not be related to the child. 

Subject to Section 5324(5), the newly added standing provision requires that: (1) the individual has assumed or is willing to assume responsibility for the child; (2) the individual has a sustained, substantial, and sincere interest in the child’s welfare; and (3) the child’s parents do not have care and control of the child. A plaintiff proceeding under Section 5324(4) shall satisfy the requirements of that provision by clear and convincing evidence. Additionally, if a juvenile dependency proceeding has been initiated, or is ongoing, or there is an order for permanent legal custody, Section 5324(5) provides that an individual cannot assert standing under Section 5324(4). 

Consistent with the Act 21 of 2018 statutory changes, subdivision (e) has been revised to include a third party seeking custody of a child under 23 Pa.C.S. § 5324(4). The subdivision has been reorganized to sequentially follow the statutory provisions in 23 Pa.C.S. §§ 5324(2)-(4) and 5325. Similarly, the Complaint for Custody Paragraph 9 in Pa.R.C.P. No. 1915.15(a) has been reorganized to sequentially follow the statutory provisions and rules sequence, as well. See Pa.R.C.P. No. 1915.15(a). 

Rule 1915.5. Question of Jurisdiction, Venue, or Standing. [No Responsive Pleading by Defendant Required.] Counterclaim. Discovery. No Responsive Pleading by Defendant Required 

[(a) A party must raise any question of jurisdiction of the person or venue, and may raise any question of standing, by preliminary objection filed within twenty days of service of the pleading to which objection is made or at the time of hearing, whichever first occurs. No other pleading shall be required, but if one is filed it shall not delay the hearing.] 

(a) Question of Jurisdiction, Venue, or Standing. 

1. (1)  A party shall raise jurisdiction of the person or venue by 

preliminary objection. 

2. (2)  A party may raise standing by preliminary objection or at a custody hearing or trial. 
3. (3)  The court may raise standing sua sponte. 
4. (4)  In a third-party plaintiff custody action in which standing has not been resolved by preliminary objection, the court shall address the third-party plaintiff’s standing and include its standing decision in a written opinion or order. 
5. 
   

Note: The court may raise at any time a question of (1) jurisdiction over the subject matter of the action or (2) the exercise of its jurisdiction pursuant to [§]Section 5426 of the Uniform Child Custody Jurisdiction and Enforcement Act, relating to simultaneous proceedings in other courts, [§]Section 5427, relating to inconvenient forum, and [§]Section 5428, relating to jurisdiction declined by reason of conduct. The Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. § 5407, provides that, upon request of a party, an action in which a question of the existence or exercise of jurisdiction is raised shall be given calendar priority and handled expeditiously. 

(b) A party may file a counterclaim asserting the right of physical or legal custody within [twenty]20 days of service of the complaint upon that party or at the time of hearing, whichever first occurs. The claim shall be in the same form as a complaint as required by [Rule]Pa.R.C.P. No. 1915.3.

(c) There shall be no discovery unless authorized by special order of court. 

Note: The rule relating to discovery in domestic relations matters generally is [Rule]Pa.R.C.P. No. 1930.5. 

(d) Except as set forth in subdivisions (a) and (b), a responsive pleading shall not be required. If a party files a responsive pleading, it shall not delay a hearing or trial. 

consumer - student loans - affirmative misrepresentations - no pre-emption by federal law

Commonwealth of Pa. v. Navient Corp. – 3d Cirl – July 27, 2020

We decide two issues in this appeal: first, whether the Commonwealth of Pennsylvania may bring a parallel enforcement action against Navient Corporation and Navient Solutions, LLC  under the [federal] Consumer Financial Protection Act of 2010. . . .after the Consumer Financial Protection Bureau has filed suit.

And second, whether and to what extent the federal Higher Education Act of 1965. . . .preempts the Commonwealth’s loan- servicing claims under its Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. §§ 201-1 to 201-9.3. 

We hold that the plain language of the Consumer Protection Act permits the Commonwealth’s concurrent action. And we follow our sister Circuits in holding that although the preemption provision of the Education Act preempts claims based on failures to disclose information as required by the statute, it does not preempt claims based on affirmative misrepresentations. 

As the Commonwealth’s claims under the PA Protection Law based on affirmative misrepresentations and misconduct are not preempted, we affirm the District Court’s denial of Navient’s motion to dismiss. 

admin. law - agency interpretation of clear, unambiguous statute not entitled to deference

Crown Castle v. PUC – Pa. SCt – July 21, 2020

http://www.pacourts.us/assets/opinions/Supreme/out/J-81-2019mo%20-%20104488664105730827.pdf?cb=1

Held: An agency’s interpretation of a clear and unambiguous statute is not entitled to deference. A court does not defer to an administrative agency’s interpretation of the plain meaning of an unambiguous statute because statutory interpretation is a question of law for the court.

Legislative rule-making - There is a well-recognized distinction in the law of administrative agencies between the authority of a rule adopted by an agency pursuant to what is denominated by the text-writers as legislative rule-making power and the authority of a rule adopted pursuant to interpretativerule-making power. The former type of rule ‘is the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the Legislative body,’ and ‘is valid and is as binding upon a court as a statute if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable.’ K. C. Davis, 1 Administrative Law Treatise s 5.03, at 299 (1958). A court, in reviewing such a regulation, ‘is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action . . . involved, it is not enough that the prescribed system of accounts shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be ‘so entirely at odds with fundamental principles . . . as to be the expression of a whim rather than an exercise of judgment.[’] 

Interpretive rule -making An interpretative rule on the other hand depends for its validity not upon a law-making grant of power, but rather upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets. While courts traditionally accord the interpretation of the agency charged with administration of the act some deference, the meaning of a statute is essentially a question of law for the court, and, when convinced that the interpretative regulation adopted by an administrative agency is unwise or violative of legislative intent, courts disregard the regulation. Pa. Human Relations Comm’n v. Uniontown Area Sch. Dist., 313 A.2d 156, 169 (Pa. 1973) (parallel citations omitted).
“While an agency’s interpretation of an ambiguous statute it is charged with enforcing is entitled to deference, courts’ deference never comes into play when the statute is clear.”

Pa. Const. Law - separation of powers - state human relations act cannot be applied to judicial branch

Renner v. Court of Common Pleas of Lehigh Co. – Pa. SCt – July 21, 2020

Majority - http://www.pacourts.us/assets/opinions/Supreme/out/J-110-2019mo%20-%20104488471105718744.pdf?cb=1

Concurring - http://www.pacourts.us/assets/opinions/Supreme/out/J-110-2019co%20-%20104488471105755702.pdf?cb=1

Held:  Application of the Pennsylvania Human Relations Act  to the judicial branch of Pennsylvania’s tripartite form of government violates separation of powers principles.. 

From the opinion

The separation of powers doctrine is essential to our tripartite governmental framework and is the cornerstone of judicial independence. It is inherent in the Pennsylvania Constitution and makes manifest that the three branches of government are co-equal and independent, and divides power accordingly. The governing structure of our Commonwealth, like the federal government, is divided into three equal branches, the legislative, see Pa. Const. art II, § 1 (“The legislative power of this Commonwealth shall be vested in a General Assembly . . . .”); the executive, see Pa. Const. art. IV, § 2 (“The supreme executive power shall be vested in the Governor . . . .”); and the judicial, see Pa. Const. art. V, § 1 (“The judicial power of the Commonwealth shall be vested in a unified judicial system . . . .”). 

The rationale underlying this separation of powers is that it prevents one branch of government from exercising, infringing upon, or usurping the powers of the other two branches. Thus, to “avert the danger inherent in the concentration of power in any single branch or body,” no branch may exercise the functions delegated to another branch. . . . The prohibition on one branch of government encroaching upon a sister branch’s powers is, in turn, related to the system of checks and balances, which prevents one branch from acting unchecked.  . . . For checks and balances to properly work, each branch must be kept from controlling or coercing the other. Insuring that each branch is co-equal and independent is the foundation of the separation of powers doctrine, and the avoidance of the concentration of governmental powers in one branch is essential to our freedom and liberty. 

In our Commonwealth, the roots of the separation of powers doctrine run deep. The delineation of the three branches of government, each with distinct and independent powers, has been inherent in the structure of Pennsylvania’s government since its genesis ― the constitutional convention of 1776. Indeed for most of our Commonwealth’s history, our Court has vigorously maintained separation of the powers of the branches, primarily relying on Article V, Section 1.

Article V, Section 10(a) provides: The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace, including authority to temporarily assign judges and justices of the peace from one court or district to another as it deems appropriate. 

In the 1968 Constitution, Article V, Section 10(a) was added, granting to the Supreme Court general supervisory and administrative authority over the judicial branch. It provides that the “Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions. . . . ”

UC - arrest - imprisonment - non pros of criminal case - no vol. quit - no fault

Gosner, Sr. v. UCBR – June 30, 2020 – reported opinion

Claimant a) did not voluntarily quit his job, nor b) was he at fault where

-he was arrested in 2-18 and incarcerated until 11-18

-his criminal case was non prossed

-he attempted to return to work upon his release

-everyone at his job had been laid off in the interim because of loss of a contract

From the opinion:

There was no substantial evidence to support finding that claimant voluntarily quit his job

Claimant intended to return to work upon his release from prison. He did not voluntarily quit his employment.  “When an employee is absent from work without permission, such absenteeism may constitute just cause for his dismissal, but it does not constitute ‘voluntarily leaving work’ under Section 402(b)[] of the Law.” Hutt v. UCBR 367 A.2d 390, 391 (Pa. Cmwlth. 1976). 

The phrase ‘voluntarily leaving work’ in Section 402(b)[] [of the Law] means that ‘he left of his own motion; he was not discharged. It is the opposite of a discharge, dismissal or layoff by the employer or other [a]ction by the employer severing relations with [its] employees . . . .’ Dept. of Labor & Industry v. UCBR, . . . 3 A.2d 211, 213 ([Pa. Super.] 1938). . . . Hutt, 367 A.2d at 391.  

Case law has established ‘a finding of voluntary termination is essentially precluded unless the claimant had a conscious intention to leave his employment.’ . . . Roberts v. UCBR, . . . 432 A.2d 646[, 648] ([Pa. Cmwlth.] 1981). Leaving the premises is not enough to determine intent to voluntarily terminate employment. However, where an employee without any action of the employer resigns, leaves or quits employment that action amounts to a voluntary leaving. In all cases the totality of the circumstances surrounding the incident must be considered when determining the intent to quit.  Monaco v. UCBR, 565 A.2d 127, 129 (Pa. 1989) (emphasis added; citations omitted). 

Here, Employer did not appear at the hearing, there was no evidence to counter claimant’s testimony that he had no intention of leaving work. Moreover, contrary to the Supreme Court’s directive in Monaco, the UCBR made no finding that Claimant had a conscious intention to leave his employment. Consequently, there is no record evidence to support the UCBR’s conclusion that Claimant voluntarily left his employment. 

There was no evidence of “fault” on claimant’s part -  A nolle pros of the criminal case negated “fault” on part of claimant – Citing Gonzalez v. UCBR, 510 A.2d 864 (Pa. Cmwlth. 1986), the court noted that while a claimant may not qualify where his unavailability is due to incarceration through his own fault, Smith v. UCBR, . . . 370 A.2d 822 ([Pa. Cmwlth.] 1977), a nolle pros negates such a finding, since it “is a favorable outcome” and thus negates any finding of fault under sec. 3 of the UC Law.

UC - voluntary quit - no express quit - absence due to ink-patient drug/alcohol treatment

Spivey v. UCBR – Cmwlth. Court – July 6, 2020 – reported opinion

Claimant held to have voluntarily quit his job when

• On parole, he failed a drug test – alcohol, cocaine, marijuana
• As a result, he was held in detox
• After detox, he entered into an in-patient substance abuse treatment program from 12-11-18 to 1-25-19
• Contacted ER upon release – informed no work for him

From the opinion:

Voluntary quit – burden of proof - Section 402(b) of the Law states that an employee shall be ineligible for compensation for any week “[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature[.]” 43 P.S. § 802(b).  Aclaimant seeking benefits bears the burden of establishing either that (1) his separation from employment was involuntary or (2) his separation was voluntary but he had cause of a necessitous or compelling nature that led him to discontinue the relationship. Greenray Indus. v. UCBR, 135 A.3d 1140, 1143 (Pa. Cmwlth. 2016) (quoting Watkins v. UCBR, 65 A.3d 999, 1004 (Pa. Cmwlth. 2013)). 

Express resignation not required - When examining whether a claimant has ‘voluntarily’ left employment, an express resignation is not necessary to make this determination and ‘conduct which is tantamount to a voluntary termination of employment is sufficient.’ Greenray Indus[.] . . . , 135 A.3d [at] 1143 . . . ([quoting] Shrum v. UCBR, 690 A.2d 796, 799-800 (Pa. Cmwlth. 1997)). 

Totality of circumstances - When making a determination of whether a person voluntarily left his employment, we must examine the totality of the facts surrounding the cessation of employment. An employee’s failure to take all necessary and reasonable steps to preserve his employment will result in a voluntary termination of employment. Thiessen v. UCBR, 178 A.3d 255, 260 (Pa. Cmwlth. 2018) (emphasis added; citations omitted). 

Leaving w/o action by employer is a voluntary quit - The courts have defined ‘voluntary’ as leaving on one’s own motion, stating: ‘Where the employee, without action by the employer, resigns, leaves or quits his employment, his action amounts to ‘voluntarily leaving work. . . .’’ Labor [&] Industry Dep[’t] v. UCBR, . . . 3 A.2d 211[, 214] ([Pa. Super.] 1938). Roberts v. UCBR, 432 A.2d 646, 648 (Pa. Cmwlth. 1981). Claimant left w/o any action by his employer, under the undisputed facts found by the UCBR.

Sec. 3 – “through no fault of his own” - Having determined that Claimant voluntarily left his employment, this Court must now rule on whether Claimant is eligible for UC benefits under Section 402(b) of the Law. Pursuant to Section 3 of the Law, the purpose of the Law is to provide UC benefits for “persons unemployed through no fault of their own.” 43 P.S. § 752 (emphasis added). Although the UCBR did not rely on Section 3 of the Law in reaching its decision in this case, this Court has determined that it is a valid interpretive aid when analyzing Section 402(b) of the Law. See Kawa v. UCBR, 573 A.2d 252 (Pa. Cmwlth. 1990); see also Bostic v. UCBR (Pa. Cmwlth. No. 1531 C.D. 2009, filed February 16, 2010). 

No express quit, but -- "In determining fault, this Court has historically and consistently concluded that an employee is responsible for the consequences of his alcohol and drug use. Here, claimant’s own testimony was substantial evidence for UCBR finding that his absence from work due to in-patient drug program was the result of claimant’s alcohol and drug use. “Therefore, although Claimant did not expressly quit his job, his conscious disregard to consume alcohol and drugs despite being fully aware of the potential consequences was sufficient for the UCBR to conclude that he was voluntarily unemployed without a necessitous and compelling reason.”

admin. law - hearsay - exceptions - applicability of Pa. Rules of Evidence

Lancaster Co,. CYS v. DHS – Cmwlth. Court – July 1, 2020 – reported decision

Held: Police officer’s testimony--to which alleged abuser mother did not object at admin. hearing--about the unobjected-to statement of father to police at scene of alleged child abuse was admissible as an excited utterance—an exception to the hearsay rule--to prove that the mother was alone in her car when she overdosed on heroin.

DHS found that the CYS had not proved its case, because, inter alia, it was based on uncorroborated hearsay—the testimony about what the police officer said at the scene. CYS appealed, arguing that DHS erred in excluding it from consideration as hearsay because: (1) corroborating evidence [to support the unobjected-to hearsay] existed in the form of Officer Ayers’ first-hand observations of the scene; and (2) the Father’s statements constituted an “excited utterance” and, therefore, are subject to a hearsay exception.  The court reversed the DHS decision on the basis of (1).

From the opinion:

Hearsay is a statement, other than the one made by a declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted in the statement. Pa. R.E. 801(c). Generally, hearsay is not admissible under the Pennsylvania Rules of Evidence. Pa. R.E. 802. We recognize, however, that “Commonwealth agencies [are] not . . . bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.” A.Y. v. Dep’t of Pub. Welfare, Allegheny Cty. Children & Youth Servs., 641 A.2d 1148, 1150 (Pa. 1994) (citing 2 Pa. C.S. § 505). 

We have consistently applied the following standard, referred to as the Walker Rule, to determine whether hearsay evidence is admissible at administrative proceedings: 

(1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of [an agency][;] 

(2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of [an agency], [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand. 

Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 915 (Pa. 2002) (citing Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). The Walker Rule “need not be considered if evidence is admissible under an exception to the hearsay rule.” Estate of Fells by Boulding v. UCBR, 635 A.2d 666, 669 (Pa. Cmwlth. 1993), appeal denied, 647 A.2d 905 (Pa. 1994). 

One of the more well-established exceptions to the inadmissibility of hearsay evidence is commonly referred to as the “excited utterance exception,” and it is set forth among other hearsay exceptions in Pennsylvania Rule of Evidence 803. Specifically, Rule 803(2) defines an “excited utterance” as: 

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the startling event or condition. 

Pa. R.E. 803(2). 

The court held that the father’s statement satisfied the requirements of Pa. R.E. 803(2) and where thus admissible to help prove abuse by the mother. The court also noted that mother did not object the father’s hearsay statement. For some reason, the court did not then go on to determine if it was supported by some other competent evidence in the record, as per the Walker rule.

In addition, there is a reasonable argument that the court improperly considered the Pa. Rules of Evidence.Rule 101 – scope and citation of rules, says that the rules “shall govern proceedings in all courts of the Commonwealth.” The Comment to the Rules clarifies that this means that the rules “are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication” and—more important—that the rules “are applicable only to courts. . . . They are not applicable to other tribunals, such as administrative agencies and arbitration panels, except as provided by law or unless the tribunal chooses to apply them.” [emphasis added]

In this writer’s opinion, the court’s consideration of hearsay exceptions has the potential of poking a big hold in the Walker rule.

UC - wages - wages used to get benefits in other state cannot subsequently used in PA

George v. UCBR – Commonwealth Court – April 13, 2020 – order to be reported June 23, 2020

Held: Claimant not eligible for UC benefits in Pennsylvania based on same wages used in prior North Carolina receipt of UC benefits.

Claimant filed a UC application in North Carolina in May 2018, establishing a base year for his North Carolina claim of January 1, 2017 through December 31, 2017. . . .The unemployment authorities determined that, under North Carolina law, Claimant was entitled to UC benefits in the amount of $350 per week for a maximum of 12 weeks.  

After exhausting his N.C. benefits, claimant applied for Pa. UC benefit. Under 34 Pa. Code § 65.132(a), Claimant would be permitted to file a subsequent UC claim in Pennsylvania but only if he had “available benefit credits” in Pennsylvania. The Board found that, under 34 Pa. Code § 65.133(a), because North Carolina had used all of Claimant’s wages from 2017, including those earned in Pennsylvania, to determine his financial eligibility in North Carolina, and because Claimant exhausted his benefit credits in North Carolina, “[C]laimant had no available credits left . . . that could be used in calculating his financial eligibility in Pennsylvania.”

North Carolina used Claimant’s wages from 3Q and 4Q 2017 to determine his eligibility for UC benefits in that state, and those two quarters also fell within Claimant’s base year for his Pennsylvania claim. Under Pennsylvania law, when a claimant’s quarterly wages are used to determine his or her eligibility for UC benefits in a prior base year, they “cannot be used again to calculate [the c]laimant’s eligibility in [a] subsequent application for UC benefits.” Logan v. UCBR, 103 A.2d 451, 453 (Pa. Cmwlth. 2014); see Lewis v. UCBR, 454 A.2d 1191, 1193 (Pa. Cmwlth. 1983) (“[W]e would doubt that the legislature intended a claimant to be entitled to use the same quarter’s wages twice – i.e.[,] for two successive benefit years.”). 

Consequently, because North Carolina used Claimant’s wages from 3Q and 4Q 2017 to establish his financial eligibility for UC benefits in that state, we conclude that Claimant could not use those same quarterly wages to establish his financial eligibility in Pennsylvania. 

See also, federal combined benefits regulations, relevant but not used as a basis for the UCBR decision. See 20 C.F.R. § 616.1, et seq.

UC - indpt. contractor - claimant's individual circumstances

Begovic v. UCBR – Cmwlth. Court – June 23, 2020 – reported decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/682CD19_6-23-20.pdf?cb=1

Held: Claimant’s wages for two separate employers were earned in “employment.” Neither employer sustained its burden under  the independent contractor/self-employment exemption is set forth in section 4(l)(2)(B) of the Law, 43 P.S. §753(l)(2)(B), which provides, in pertinent part: 

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the [local service center] that—(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 

This provision presumes that an individual is an employee, as opposed to  an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of her service and that, as to such service, was customarily engaged in an independent trade or business. Beacon Flag Car Co. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee. York Newspaper Company v. UCBR, 635 A.2d 251 (Pa. Cmwlth. 1993), appeal denied, 647 A.2d 906 (Pa. 1994); Electrolux Corporation v. Department of Labor & Industry, Bureau of Employment Tax Operations, 705 A.2d 1357, 1360 (Pa. Cmwlth. 1998). 

Neither employer satisfied the second prong of the statutory test, i.e., that Claimant was actually in the business of a) canvassing public opinion or b) acting as a language interpreter for a number of health care organizations in the Pittsburgh area. 

Our Supreme Court recognized that “a worker can be considered an independent contractor only if he or she is in business for himself or herself.” Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 798 (Pa. 2006) (emphasis added). Our Supreme Court in Danielle Viktor, Ltd. established a three-part test for determining whether a putative employee is engaged in “an independently established trade, occupation, profession or business” under this second prong. 

Specifically, under Danielle Viktor, Ltd., we look at the following factors: (1) whether the individuals are able to work for more than one entity; (2) whether the individuals depended on the existence of the presumed employer for ongoing work; and (3) whether the individuals were hired on a job-to-job basis and could refuse any assignment. 892 A.2d at 801-02. Moreover, as part of the second prong, we must analyze whether “the claimant [was] customarily engaged in such trade or business in order to be considered self-employed.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc) (emphasis in original). 

Recently, in A Special Touch v. Department of Labor and Industry, __ A.3d __ (Pa., No. 30 MAP 2019, filed April 22, 2020, slip op. at *22-23), 2020 WL 1932622 at *10, our Supreme Court clarified that the meaning of the phrase “customarily engaged” requires an individual to be “usually,” “habitually,” or “regularly” “employed” or “involved” in activity; or “employed” or “involved” in activity “according to the customs,” “general practice,” or “usual order of things.” 

The Supreme Court has instructed a putative employer must show that an individual is actually involved in an independent trade, occupation, profession, or business in order to establish that the individual is self-employed under the second prong of subsection (4)(l)(2)(B). Id. [emphasis added]  The UCBR and courts are obligated to examine “such individual[’s]” unique set of circumstances. . .  .The proper approach is to focus the inquiry on the conduct of the individual claimant. Thus, the appropriate inquiry is whether the claimant, was, in fact, customarily engaged in a trade, occupation, profession or business that was independently established. See A Special Touch. See also Glatfelter Barber Shop v. UCBR, 957 A.2d 786 (Pa. Cmwlth. 2008). 

Here, there is no indication that Claimant held herself out as being in the business of either a canvasser or interpreter for hire.

employment - non-compete agreements - Pa. SCt.

Rullex Co. v. Tel-Steam Inc. – Pa. Supreme Court – June 17, 2020

Restrictive covenants are generally disfavored in Pennsylvania as they constitute a restraint on trade that also undercuts a former employee’s ability to earn a living. . . .[citations omitted] That principle is tempered to some degree by the recognition that, in the modern business environment, such covenants can be “important business tools” which prevent individuals from “‘learning [employers’] trade secrets, befriending their customers and then moving into competition with them.’” . . . .

To be enforceable, a restrictive covenant must be incident to an employment relationship between the parties and supported by consideration; also, its restrictions must be reasonably necessary for the protection of the employer’s legitimate interests and reasonably limited in duration and geographic extent. [citations omitted] . . . .

A bright-line rule such as that utilized by the Superior Court [concerning the necessity of new consideration] could subvert the expectations of parties who fully anticipate and intend the restriction to be ancillary to the taking of employment, but the employee, for whatever reason, signs the covenant shortly after the first day. Alternatively, such an approach might unnecessarily delay an employee’s ability to begin earning income if he or she is not in a position to sign the agreement until a reasonably short period after work begins. 

Hence, the test for whether new consideration is required has not ordinarily centered on whether the employee physically executed the agreement precisely on (or before) the first day of employment. Rather, and as explained, restrictive covenants have been deemed enforceable absent fresh consideration in situations where the parties contemplated and intended that, incident to the employment relationship, the employee would be bound by its substantive terms – and the employee ultimately signed it shortly after the first day. 

This is in contrast with circumstances where a non-compete agreement is imposed on an employee essentially as a belated addition to the employment relationship. See generally Jordan Leibman & Richard Nathan, The Enforceability of Post-Employment Noncompetition Agreements Formed After At-Will Employment Has Commenced: The “Afterthought” Agreement, 60 S. CAL. L.REV. 1465, 1472 (1987) (referring to these as “afterthought agreements”). In Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974), for example, this Court found a non-compete clause unenforceable where it was not in the original, oral employment contract, but appeared when the contract was reduced to writing the next year and was unsupported by new consideration. See id. at 330, 314 A.2d at 281. 

From the foregoing it should be evident that, for a restrictive covenant executed after the first day of employment to be enforceable absent new consideration, the parties must have agreed to its essential provisions as of the beginning of the employment relationship. Only in that circumstance will the covenant in substance be “ancillary to taking employment[.]” Pulse Techs., Inc. v. Notaro, 620 Pa. 322, 327, 67 A.3d 778, 781 (2013) (quoting Beneficial Finance, 422 Pa. at 534, 222 A.2d at 875). 

In this respect, [the employee] argues that, as with other types of agreements, there must be a meeting of the minds on the terms of [the] restrictive covenant. Thus, before preliminary negotiations ripen into contractual obligations, there must be evidence of mutual assent to the terms of a bargain. If “the parties themselves contemplate that their agreement cannot be considered complete, and its terms assented to, before it is reduced to writing, no contract exists until the execution of the writing.”  . . . . In making an assessment along these lines, it may not be necessary to prove an actual, subjective “meeting of the minds,” as objective manifestations of assent and/or an intent to be bound by the covenant’s substance can suffice. 

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

UC - credibility - Board ultimate finder if substantial evidence

Casey Ball Supports Corporation v. UCBR – June 9, 2020 – Cmwlth. Court – unreported memorandum opinion **

We turn first to the Board’s issuance of its own decision. Contrary to Employer’s suggestion, the Board is the ultimate finder of fact in unemployment compensation cases with the power to determine credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985); Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). The Board’s findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence supporting those findings. Oliver, 5 A.3d at 438. Additionally, although Employer challenged the legality of the Board’s issuance of findings of fact, Employer failed to make specific challenges to any of those findings. Accordingly, the findings are conclusive on appeal. Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997). 

Where, as here, both parties submitted evidence, there was no need for the Board to specify why it deviated from the referee’s findings of fact and conclusions of law. Peak, 501 A.2d at 1386-87; Hasely v. Unemployment Comp. Bd. of Review, 553 A.2d 482, 487 (Pa. Cmwlth. 1989). Consequently, the fact that the referee personally observed the witnesses is of no moment. 

Finally, as long as there is substantial evidence for the Board’s findings, “[t]he fact that Employer may have produced witnesses who gave a different version of the events, or that Employer might view the testimony differently than the Board, is not grounds for reversal . . . .” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Here, the Board credited Claimant’s testimony and we cannot overturn that credibility determination on appeal. 

Fitzpatrick v. Unemployment Comp. Bd. of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). We are bound to view the evidence in the light most favorable to Claimant, as the party who prevailed before the Board, and give her the benefit of all inferences that can logically and reasonably be drawn from the testimony. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). 

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This case is also reported in the PLAN Legal Update  

http://planupdate.blogspot.com/ , which is searchable and can be accessed without a password.

**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 - voluntary quit - safety concerns - objective evidence

Morgan v. UCBR – Cmwlth. Court – May 29, 2020 – unreported* memorandum opinion

Claimant that it was necessary for him to quit his job out of fear for the safety of the children served by Employer and “concern” for his own professional reputation if he continued to work for Employer under circumstances involving alleged child neglect. 

. . . The Board and Employer7 argue that Claimant failed to meet his burden, because he did not sufficiently describe any reasons for his concerns or fears before the Referee but instead made nonspecific, conclusory statements that conditions were unacceptable. The Board also emphasizes Claimant’s admission that he spoke only to his friends—not to Employer—about his concerns, and that he did not discuss his concerns with anyone until the day before he voluntarily quit. 

We agree with the Board and Employer that Claimant failed to establish a necessitous and compelling reason to quit. Although safety concerns may give rise to such reasons, the claimant must “demonstrate[] by objective evidence” that the workplace is actually unsafe, and “‘fears’ alone do not constitute a compelling reason to resign.” Green Tree Sch. v. Unemployment Comp. Bd. of Review, 982 A.2d 573, 578 (Pa. Cmwlth. 2009). Here, Claimant offered no objective evidence that the conditions of his employment were unsafe, either for himself or for the children served by Employer. Accordingly, Claimant failed to demonstrate circumstances that exerted real and substantial pressure on him to terminate his employment. 

Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 661 (Pa. Cmwlth. 2006). A claimant who voluntarily terminates his employment “bears the burden of proving that necessitous and compelling reasons motivated that decision.” Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126, 1129 (Pa. Cmwlth. 1998), appeal denied, 794 A.2d 364 (Pa. 1999). To establish cause of a necessitous and compelling nature, a claimant must establish: (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like circumstances would compel a reasonable person to act in the same manner, (3) the claimant acted with ordinary common sense, and (4) the claimant made a reasonable effort to preserve his employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008) (en banc). 

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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