res judicata (claim preclusion) and collateral estoppel (issue preclusion)

In re Coatesville Area School District – Pa. S.Ct. – January 19,2021 

http://www.pacourts.us/assets/opinions/Supreme/out/J-72-2020mo%20-%20104664752125446022.pdf?cb=1

 

This is a tax assessment case, not really relevant to legal aid practice, but it contains a nice summary of the doctrine of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

 

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Res judicata – literally, a thing adjudicated – is a judicially-created doctrine. See Estate of Bell, 463 Pa. 109, 113, 343 A.2d 679, 681 (1975). It bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could have been raised in that action. See R/S Financial Corp. v. Kovalchick, 552 Pa. 584, 588, 716 A.2d 1228, 1230 (1998); Balent v. City of Wilkes-Barre, 542 Pa. 555, 563, 669 A.2d 309, 313 (1995). This Court has explained that 

[r]es judicata, or claim preclusion, prohibits parties involved in prior, concluded litigation from subsequently asserting claims in a later action that were raised, or could have been raised, in the previous adjudication. The doctrine of res judicata developed to shield parties from the burden of re-litigating a claim with the same parties, or a party in privity with an original litigant, and to protect the judiciary from the corresponding inefficiency and confusion that re-litigation of a claim would breed. 

Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 587 Pa. 590, 607, 902 A.2d 366, 376 (2006) (citation omitted); see also R/S Financial, 552 Pa. at 588, 716 A.2d at 1230 (“The purposes of the rule are the protection of the litigant from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation.” (quoting Foster v. Mut. Fire, Marine & Inland Ins. Co., 544 Pa. 387, 404, 676 A.2d 652, 661 (1996))).

Four elements common to both actions, sometimes termed the “four identities,” see, e.g., Estate of Tower, 463 Pa. 93, 100, 343 A.2d 671, 674 (1975), must be present for res judicata to apply: “an identity of issues, an identity of causes of action, identity of persons and parties to the action, and identity of the quality or capacity of the parties suing or being sued.” In re Iulo, 564 Pa. 205, 210, 766 A.2d 335, 337 (2001) (citing Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)). 

Collateral estoppel is similar in that it bars re-litigation of an issue that was decided in a prior action, although it does not require that the claim as such be the same. For example, if, in a breach of contract action, the defendant asserts that the contract is invalid because of fraud, but the contract is ruled valid and the defendant is found liable, in a future lawsuit against the same party alleging a separate breach of the same contract the defendant is precluded from asserting the invalidity of the contract based on fraud. SeeRESTATEMENT (SECOND) OF JUDGMENTS §27, cmt. a, illus. 2 (1982). 

Collateral estoppel will only apply where: the issue is the same as in the prior litigation; the prior action resulted in a final judgment on the merits; the party against whom the doctrine is asserted was a party or in privity with a party to the prior action; and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior action. See Rue v. K-Mart Corp., 552 Pa. 13, 17, 713 A.2d 82, 84 (1998). In some renditions, courts add a fifth element, namely, that resolution of the issue in the prior proceeding was essential to the judgment. See, e.g., Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 484, 889 A.2d 47, 50-51 (2005). 

Collateral estoppel is premised on practical considerations that overlap substantially with those of res judicata. These include avoiding the “cost and vexation” of repetitive litigation, conserving judicial resources, “and, by preventing inconsistent decisions, encourage[ing] reliance on adjudication.” Id. at 484, 889 A.2d at 51. 

civil procedure - I.D. of parties - pseudonyms - federal court

Doe v. Moravian College – ED Pa. – January 8,2021

 

https://www.paed.uscourts.gov/documents/opinions/21D0044P.pdf

 

Plaintiff allowed to proceed with pseudonym is case involving sexual assault under F.R. Civ. P. 10 (a)

 

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n. 1-  Plaintiff Jane Doe, a college freshman, alleges that she was sexually assaulted on her college campus by fellow students and their guest. She brings this action against her alleged attackers, for the assault, and against the college, for not protecting her. See ECF No. 4 (Amended Complaint). The plaintiff is seeking the Court’s permission to continue litigating this matter under a pseudonym. ECF No. 17. Only one of the individual defendants opposes the motion but, in the alternative, requests that he be permitted to also use a pseudonym in this matter. ECF Nos. 24, 31. 

Federal Rule of Civil Procedure 10(a) requires parties to identify themselves in their pleadings. Doe v. Meglass, 654 F.3d 404, 408 (3d Cir. 2011) (citing to Fed. R. Civ. P. 10(a)). “Courts have explained that [Rule 10(a)] illustrates ‘the principle that judicial proceedings, civil as well as criminal, are to be conducted in public.’” Id. (quoting Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997)). Part of the public nature of judicial proceedings is the identification of the parties. See id. (“Identifying the parties to the proceeding is an important dimension of publicness.” (quoting Blue Cross, 112 F.3d at 872)). Therefore, a litigant’s “use of a pseudonym ‘runs afoul of the public's common law right of access to judicial proceedings.” Id. (quoting Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000)). 

Despite Rule 10(a)’s identification requirement, courts have the discretion to permit litigants to proceed anonymously “in exceptional cases.” See id. The litigant must demonstrate that they have “a reasonable fear of severe harm that outweighs the public’s interest in open judicial proceedings.” Id. The Third Circuit has endorsed a set of non-exhaustive factors when balancing these competing interests. Id. at 409. The factors that favor a litigant’s request to proceed anonymously are: 

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. 

Id. (quoting Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). The factors that weigh against a litigant’s request for anonymity include: 

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. 

Id. (quoting Provident Life, 176 F.R.D. at 467). Considering the public’s interest in open court proceedings, courts have found that there is “an independent duty to determine whether ‘exceptional circumstances’ warrant a departure from the normal method of proceeding’ in federal litigation.” Freedom from Religion Foundation, Inc. v. New Kensington-Arnold School Dist., 2012 WL 6629643, at *3 (W.D. Pa. Dec. 19, 2012) (quoting Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004)); see also Doe v. County of Lehigh, 2020 WL 7319544, at *3 (E.D. Pa. Dec. 11, 2020) (Leeson, J.). 

After careful review, the Court finds that the factors balance in favor of permitting plaintiff to continue litigating this case under a pseudonym. Weighing in favor of pseudonymity are the plaintiff’s attempts to keep her identity confidential; her fear of increased embarrassment, humiliation, and stigmatization as a rape victim that would compound the “severe emotional damage” caused by the alleged actions of the defendants if her identity was disclosed; the magnitude of the public interest in maintaining the confidentiality of the identities of sexual assault victims; her assertion that she will refuse to continue to pursue this litigation should she be precluded from using a pseudonym; the plaintiff’s lack of illegitimate motive; and the fact that no public figure is involved in this litigation. The remaining factors, such as the universal level of public interest in access to the identities of litigants, do not outweigh the interests in favor of pseudonymity. For these reasons, the plaintiff’s motion will be granted. 

n. 2 Similarly, the factors weigh in favor of allowing the defendant to also proceed using a pseudonym. 

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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 - employee v. independent contractor - "actually engaged" in own business

Subcontracting Concepts, Inc. v. UCBR – Cmwlth. Court – 12-16-20 – unreported, non-precedential decision**

 

Held: UCBR decision affirmed, that claimant was not an independent contractor, despite an written agreement stating that he was.  The employer did not offer proof that the claimant was actually engaged in his own business.

 

This case is reported here, because it contains a helpful, extended discussion of the issue, citing important recent precedent, including 

-A Special Touch v. Department of Labor & Industry, 228 A.3d 489 (Pa. 2020)

-Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781 (Pa. 2006).

- Lowman v. UCBR, 235 A.3d 278 (Pa. 2020

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

 

 

PFA - reasonable fear does not require proof of past physical abuse

C.J.L. v. W.S.M. , SR. – Pa. Superior – December 16, 2020 – non-precedential decision**

 

Held: Course of conduct which creates reasonable fear of bodily injury can be based solely on non-physical factors, such as threats and following victim to work.  It does not require proof of past physical violence. D.H. v. B.O., 734 A.2d 409 (Pa. Super. 1999) and Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) distinguished.

Burke and D.H. hold that reasonable fear can be based on persistent communications particularly where there is a history of abuse. Neither case required evidence of past abuse or held that communications alone can never form the basis for a PFA. Moreover, the record reflects more than mere communication. The victim testified that on one occasion defendant, from his car, noticed her travelling in the opposite direction and turned around and followed her to work. 

Evidence issue – The fact that the physical text message and letters were not in evidence was not relevant, where they were read into evidence in open court, and the parties testified as to their perceived meaning 

 

 

*An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

UC - willful misconduct - ER failure to give reason for firing at time of termination does not preclude later proof of reason

The Community Youth and Women’s Alliance v. UCBR – Cmwlth. Court – 12-12-20 – unreported memorandum decision, no precential**

 

Held:  The failure of an employer to give claimant a reason for her firing at the time of termination does not preclude the employer from later establishing one in response to initial determination or at hearing, so long as the latter two are consistent.

 

From the opinion:

In determining whether an employer has discharged an employee for willful misconduct, we have held that an employer is prohibited from offering one reason for discharge at the time of separation and then later relying on a completely different reason. See Saleem v. UCBR., 35 A.3d 1283, 1290-93 (Pa. Cmwlth. 2012); Browning-Ferris Indus. of Pa., Inc. v. UCBR., 561 A.2d 856, 857 (Pa. Cmwlth. 1989). 

However, that is not the same as not giving a reason at the time of discharge, but later offering one in response to the initial determination and later at an appeal hearing.  Precedent does not constrain an employer that fails to provide a reason at discharge from later establishing one. In the matter before us, Employer has alleged the same reasons for Claimant’s discharge at all times since it completed the employer questionnaire: general financial mismanagement, lapse of insurance, excessive trash fees, and lack of financial disclosure to the board of directors. Employer’s failure to provide these reasons to Claimant at the time of discharge does not prevent Employer from later establishing them in order to meet its burden of proof under Section 402(e) of the Law. 

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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, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

LT - request for order of possession - time limit extended to 180 days from entry of judgment

Order -           http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104625461121365958.pdf?cb=1\

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104625461121365893.pdf?cb=1

Final Report  http://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104625461121365777.pdf?cb=1

 

 

Recommendation 4-2020, Minor Court Rules Committee

Amendment of Pa.R.C.P.M.D.J. Nos. 515 and 516

EXTENSION OF TIME FOR A LANDLORD TO REQUEST AN ORDER FOR POSSESSION IN A RESIDENTIAL LEASE CASE

Introduction

FINAL REPORT1

The Minor Court Rules Committee (“Committee”) recommended amendments to Rules 515 and 516 of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (“Rules”). The amendments will permit a landlord in a case involving a residential lease to request an order for possession within 180 days from the date of entry of judgment rather than the current 120 days. The recommendation is necessitated by exigent circumstances requiring the immediate adoption of the proposal and is adopted in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.

I. Background and Discussion

Following the issuance of a judgment in a landlord-tenant case and the requisite waiting period, a landlord seeking to regain property must file a request for an order for possession with the magisterial district court. See Rule 515. In residential landlord-tenant cases, the landlord must file the request for an order for possession no later than 120 days from the date of entry of the judgment. See Rule 515B(1). Certain actions will stay the period within which a request for order for possession must be filed, such as an appeal or writ of certiorari operating as a supersedeas, or a bankruptcy or other stay required by state or federal law. See Rule 515B(2).

Since the onset of the COVID-19 pandemic, the Court, the federal government, the Governor, and the Centers for Disease Control and Prevention (“CDC”), inter alia, have promulgated laws and orders suspending certain residential evictions.

One of the most recent orders staying some residential evictions, issued by the CDC, will expire on December 31, 2020.

The Committee received correspondence recommending an extension of the 120- day period within which a landlord must file a request for an order for possession in a residential landlord-tenant case. An extension would provide the parties with greater flexibility to negotiate and enter into private forbearance agreements. Such private agreements could allow the tenants additional time in which to satisfy back rent obligations while maintaining current rental payments and housing status. Therefore, the Committee recommended increasing the time period within which a landlord must file a request for an order for possession in a residential lease case from 120 days to 180 days. 

III. Rule Changes

Rules 515 and 516 are amended to provide for 180 days within which a landlord in a residential lease case must request an order for possession. Rule 516C is further amended to provide that upon written request of the landlord in a case arising out of a residential lease, the magisterial district judge shall reissue an order for possession for no more than two additional 60-day periods.

Docket, In re: General Statewide Judicial Emergency, p. 12. See also Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (“CARES Act”); Commonwealth of Pennsylvania, Executive Order May 7, 2020, § 2, as amended, May 21, 2020; Commonwealth of Pennsylvania, Executive Order July 9, 2020, § 2; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (Sept. 4, 2020) (“CDC Order”).

 

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1 The Committee’s Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee’s Official Notes or the contents of the explanatory Final Reports.

2 See Order of March 18, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, pp. 8-9 (suspending eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment). See also Order of April 1, 2020, Nos. 531 and 532 Judicial Administration Docket, In re: General Statewide Judicial Emergency, p. 6, Second Supplemental Order; Order of April 28, 2020, Nos. 531 and 532 Judicial Administration

 

 

 

 

UC - medical marijuana - sec. 402 (e.1)

Pittsburgh Water and Sewer v. UCBR – Cmwlth. Court – en banc – reported, precedential – November 18, 2020

 

Held: Claimant not disqualified under sec. 402 (.1), 43 P.S. sec. 802 (e.1), relating to discharge for failure to submit to or pass a drug test conduct pursuant t9 an employer’s established substance abuse policy, under the following circumstances.

 

• Claimant had valid prescription for medical marijuana, permitted under state law
• Claimant told ER that she had such a prescription and submitted a copy to the ER
• ER policy allowed a CL to rebut positive test w/in 3 days w/proof of valid prescription
• ER policy prohibited release of positive test to medical review officer  (MRO) if CL produced prescription w/in 3 days
• ER policy excused use of marijuana if medically prescribed
• ER policy allowed use of prescription drugs at work
• Marijuana was a “legal drug” when valid prescription, under ER policy
• ER released test result nonetheless – failed to follow its own policy
• ER discharged CL because marijuana illegal under federal law

 

UCBR and Court found that ER policy was ambiguous and should be construed against ER, which drafted it. 

 

ER failed to follow its own policy, as it is required to do under UC Law.

“[T]he statutory language clearly provides that to be ineligible for UC benefits under Section 402(e.1) of the Law, the drug test must be in accordance with employer’s substance abuse policy.” Katera’s Kove, Inc. v. Unemployment Comp. Bd. of Review, 130 A.3d 800, 804 (Pa. Cmwlth. 2015) (emphasis added). Here, Employer’s Drug Policy expressly permits “individuals [to] use . . . prescription drugs while at work strictly in accordance with . . . a physician’s prescription[.]” R.R. at 170a. Further, the Drug Policy defines “legal drug” as “prescription medications . . . that have been legally obtained[,]” R.R. at 173a, and explicitly states that “[t]he possession or use of legal drugs while on [Employer’s] premises, during work hours and/or when performing any [Employer] business . . . is permitted[.]”  [emphasis in original]

 

Court recognized that UC law is remedial

“[I]t is to be remembered that the . . . Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives (insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security) may be completely achieved.  A Special Touch v. Dep’t of Labor & Indus., 228 A.3d 489, 503 (Pa. 2020) (quoting Wedner v. UCBR, 296 A.2d 792, 796 (Pa. 1972)). 

 

 

 

 

 

 

 

 

contracts - instruments under seal - statute of limitations - waiver of rights

National Loan Investors v. Gold – Pa. Superior Court – 11-13-20

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A17011-20m%20-%20104603903119751379.pdf?cb=1

 

This decision is not precedential but it is worth reading and considering.  It upholds the argument that the contract/instrument was under seal – and thus extended the statute of limitations in the matter to 20 years.  

 

This writer would like to see a challenge to this and similar cases. It seems to me that no one realize the effect of a contract being under seal ,and that a waiver of the normal rules for statutes of limitations should only be enforced when it is knowing, intelligent, and voluntary. 

 

See, e.g., Cole v. Philadelphia Co., 26 A.2d 920, 924 (Pa. 1942), “To make proof of waiver of a legal right there must be clear, unequivocal and decisive action of the party with knowledge of such right showing a purpose to surrender such right on his part.” Accord, Brown v. City of Pittsburgh, 186 A. 2d. 399, 401 (Pa. 1962); Johnson v. Concord Mutual Insurance Co., 300 A. 2d 61, 64-5 (Pa. 1973); Transnational Consumer Discount Co. v. Kefauver, 307 A.2d 303, 305 (Pa. Super. 1973).

 

“An agreement or instrument which reduces legal rights which would otherwise exist is strictly construed against the party asserting it and must spell out with the utmost particularity the intention of the parties,” e.g. an exculpatory clause relieving a landlord of liability for negligence with respect to the conditions of stairs, etc. Galligan . Arovitch, 219 A. 2d 463, 464-5 (Pa. 1966).

 

There are also cases involving a confession of judgment with similar language, e.g., Cutler v. Latshaw, 97 A.2d 234 (Pa,. 1953), and its progeny,.

 

 

 

LT - L's failure to get required use/occupancy permit did not give former tenant right to counterclaim for past rent paid

Aspen Enterprises v. Thomas – Pa. Superior Court – 11-5-20 – unreported** memorandum opinion

 

Held: Former landlord sued for past rent due and damages to the premises by former tenant.  Court dismissed tenant’s counterclaim for rent already paid dismissed, in spite of landlord’s failure to get a use/occupancy permit from City of Chester under ordinance which “denied the right to recover possession. . .or to collect rent during any period of noncompliance” with ordinance.  Frempong v. Richardson, 209 A3d 1001 (Pa. Super. 2019), concerning similar Philadelphia ordinance, distinguished.

 

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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, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

 

 

 

 

UC - employee v. indpt. contractor -

Deenis v. UCBR -= Cmwlth. Court – October 26, 2020 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/475CD19_10-26-20.pdf?cb=1

Held: UCBR decision holding claimant to be an indpt. contractor remanded for consideration under A Special Touch v. Dep’t of Labor & Indus., Office of Unemployment Comp. Tax Servs., 228 A.3d 489 (Pa. 2020), which had not been handed down at the time of the UCBR decision.

The dispositive issue is whether the Board erred in determining that Claimant was an independent contractor. Section 402(h) of the Law provides in relevant part that a person is ineligible for unemployment compensation in any week in which he is “engaged in self-employment.” 43 P.S. § 802(h). 

Self-employment is not a defined term under the Law. Thus, courts look to the definition of “employment” set forth in Section 4(l)(2)(B) of the Law, 43 P.S. § 753(l)(2)(B), which provides in relevant 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 department 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. 

Before an individual will be declared to be self-employed, both elements of Section 4(l)(2)(B) must be satisfied. Silver v. UCBR, 34 A.3d 893, 896 (Pa. Cmwlth. 2011). 

Pursuant to the two-prong test, the Court first examines the degree of control or direction over the work performed, and second, whether the individual is customarily engaged in an independently established trade, occupation, profession, or business. Jia v. UCBR, 55 A.3d 545, 548 (Pa. Cmwlth. 2012). An alleged employer asserting that an individual is not eligible for benefits because that person is self-employed bears the burden of proof. C E Credits OnLine v. UCBR, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). There is a presumption that someone receiving wages is an employee and the alleged employer bears a heavy burden to rebut the presumption. Jia, 55 A.3d at 548. 

With respect to the “direction and control” prong of the independent contractor test, no single factor is controlling and the ultimate conclusion must be based on the totality of the circumstances. Pasour v. UCBR, 54 A.3d 134, 138 (Pa. Cmwlth. 2012). In reviewing this prong, we have considered factors such as whether there was a fixed rate of remuneration; taxes were withheld; the employer provided the tools or training to perform the job; the employer set the time and location of work; and the employer could review the claimant’s performance. C E Credits OnLine, 946 A.2d at 1168. 

In this case, it is with regard to the second prong, which requires the presumed employer to establish that an individual is customarily engaged in an independently established trade, occupation, profession, or business, that the result is not clear. With respect to this determination, the courts have considered factors such as the negotiation of different rates, variable compensation, and responsibility for one’s taxes, Attorneys On Call v. UCBR, 624 A.2d 754, 756-57 (Pa. Cmwlth. 1993), as well as the submission of invoices for services rendered, C E Credits OnLine, 946 A.2d at 1168. Commonwealth Court has also held that an independent contractor agreement is not determinative of a claimant’s status but is nonetheless an important factor to consider. Hartman v. UCBR, 39 A.3d 507, 511-12 (Pa. Cmwlth. 2012). 

Historically, courts have also placed great significance on whether the claimant was permitted or able to perform “the activities in question to [any others] who wished to avail themselves of the services.” Resource Staffing, Inc. v. UCBR, 995 A.2d 887, 892 (Pa. Cmwlth. 2010). However, the Pennsylvania Supreme Court recently held that “the phrase ‘customarily engaged’ requires that an individual actually be involved, as opposed to merely having the ability to be involved, in an independently established trade, occupation, profession, or business[.]” A Special Touch, 228 A.3d at 505-06. Such a determination is fact dependent. Id. at 505. In other words, it appears that a claimant must actually provide services for others, or at least make plans or some attempt to do so. 

Here, the supported findings of fact were that Claimant signed the Agreement providing that the client would not treat him as an employee for any purpose. The Agreement also provided for different rates of compensation for different tasks, renegotiation of the agreed-upon rate if the parameters of the work changed, submission of invoices for work completed, and, significantly, a provision that he could work for others. These findings clearly would have established that Claimant was self-employed under the controlling case law at the time of the referee’s hearing and the Board’s decision. 

However, the criteria for independent contractor status has been modified in relevant part by the Supreme Court’s holding in A Special Touch but, because that case had not yet been decided, the Board had no opportunity to consider Claimant’s case under the new standard. Accordingly, the case will be remanded so that the Board can do so.

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

UC - claimant not self-employed - no positive steps toward establishing a business

Humanus Corp. v. UCBR – Cmwlth. Court – October 23, 2020 – reported decision – precedential

http://www.pacourts.us/assets/opinions/Commonwealth/out/1193CD19_10-23-20.pdf?cb=1

 

Held: Tutor at private school was not a self-employed independent contractor, in spite of fact that: he signed indpt. contractor agreement; provided own computer, got no training, etc. etc.

The act of signing an independent contractor agreement does not, in and of itself, establish independent contractor status. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2002). We also observe that, “in concluding whether an employment relationship exists, no single factor is controlling.” Clark v. UCBR, 129 A.3d 1272, 1278 (Pa. Cmwlth. 2015). In the present matter, the parties agree that Claimant operated free from employer’s direction and control, in satisfaction of the first prong of the two-pronged test, thus this matter is narrowed to the issue of whether employer met its burden on the second prong of the test set out in Section 4(l)(2)(B) of the Law, i.e., whether employet proved that Claimant was customarily engaged in an independently-established trade, occupation, profession, or business. 

There is no dispute that, among other things, Claimant signed an independent contractor agreement with employer, which provided referrals to Claimant which he was permitted to accept or refuse, and that employer did not provide Claimant with any tools or equipment to perform his tutoring services. Claimant received no training or resources, except access to a video conferencing tool. He uses his own laptop computer, and he buys his own supplies. In addition, Claimant obtains, and pays for, his own background checks and clearances. 

In our en banc opinion in Lowman, we re-enunciated standards set forth in our earlier opinion in Buchanan, in which we looked to whether the claimant had taken a “positive step” toward establishing a business. Lowman, 178 A.3d at 900 (quoting Buchanan, 581 A.2d at 1008). In Lowman, we specifically weighed such factors as whether the claimant had advertised, listed a business phone number, had business cards, obtained insurance, and whether the claimant’s actions reflected “an entrepreneurial spirit” or “intentions of starting a new business [or] trade.” Lowman, 178 A.3d at 903 (quoting Buchanan, 581 A.2d at 1008). 

However, our Supreme Court, in its recent opinion in Lowman v. UCBR, __ A.3d __ (Pa., No. 41 EAP 2018, filed July 24, 2020), stated that “[e]ither a claimant is self-employed or not. The concept of referring to activities as “positive steps” adds nothing to the analysis of the actual services performed by a claimant.” Id. at __, slip op. at 14 n.23. Our Supreme Court, in Lowman, stated “[w]e express no opinion on the use of a ‘positive steps’ analysis as part of the test for self- employment embodied in Section [4(l)(2)(B) of the Law] where the personal services are performed by an individual in a stand-alone context.” Id. at __, slip op. at 14 n.24. 

The Lowman Supreme Court opined that its interpretation of this [Section] “promotes a comprehensive understanding of a claimant’s personal services. Unlike the ‘positive steps’ test, which focuses on a claimant’s stand-alone activities, Section [4(l)(2)(B)] requires a structured two-factor analysis of a claimant’s personal services where they are performed within the context of a work relationship with a third party.” Id. at __, slip op. at 14. 

Our Supreme Court added: 

In the context of determining whether an individual is engaged in self-employment and therefore, ineligible for benefits, an analysis using Section [4(l)(2)(B) of the Law] does not evaluate what a claimant could do, but what he has done and/or is doing in terms of providing personal services for remuneration. Looking at a claimant’s real-time activities through the lens of Section [4(l)(2)(B) of the Law] avoids speculation based on hypothetical considerations and aids in evaluating a claimant’s actual status for eligibility purposes.  Id. at __, slip op. at 17. 

In the present matter, there is no evidence that Claimant took any sort of positive step toward establishing a business. However, whether we utilize a “positive step(s)” analysis or not, Claimant was not a trained tutor who made his services available to anyone but the School. He secured the tutoring position through Humanus. He worked 15 hours per week as a tutor for the School. Although he could have accepted other tutoring assignments had they come along, he did not, and it does not appear from the record that he sought any such other opportunities. In fact, as the Board argued, Claimant would have had little time, if any, to pursue such opportunities, in light of his acceptance of a non-tutoring, 32-hour per week position with Clyde Peeling’s Reptile Land. His real time activities indicate he was engaged as a tutor for 15 hours per week, strictly for the School, through employer. 

In addition to its recent pronouncement(s) in Lowman, our Supreme Court opined, in A Special Touch v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 228 A.3d 489 (Pa. 2020), a case, like Stage Road Poultry Catchers, regarding employment status for UC tax purposes, that the “phrase ‘customarily engaged,’ as used in Section 4(l)(2)(B) of the Law, requires that an individual actually be involved, as opposed to merely having the ability to be involved, in an independently established trade, occupation, profession, or business.” Id. at 505-06. Based on the evidence of record, there is no indication that Claimant, here, met such a standard. 

Based on the evidence of record and the leading law, there was no error by the Board in its determination that employer failed to meet its burden of proving Claimant was self-employed. Although it is true that Claimant operated with a certain amount of independence in his relationship with employer, there is insufficient evidence to support the alternative outcome, i.e., that Claimant was customarily engaged in an independently established profession and, thus, was ineligible for UC benefits.. 

UC - late appeal - oppty. to present evidence justifying allowance of nunc pro tunc appeal

Heck v. UCBR – Cmwlth. Court – October  19, 2020 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/1273CD18_10-19-20.pdf?cb=1

 

 

Claimant petitions for review of an Order of the UCBR that vacated a Referee’s Decision and dismissed his appeal as untimely pursuant to Section 501(e) of the UC Law (Law), 43 P.S. § 821(e).

 Claimant maintains the appeal was untimely as a result of the determinations being sent to an incorrect address, which constitutes a breakdown in the administrative process and warrants nunc pro tunc relief.

In reaching its decision, the Board relied on Section 35.173 of the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code § 35.173, to take official notice of the fact that Claimant applied online for benefits, and to then attribute the incorrect address on the claim form to Claimant’s actions. 

The Board, however, did not afford Claimant notice of its intent to do so, or provide Claimant the opportunity to respond as GRAPP requires. Accordingly, we vacate the Board’s Order and remand this matter for further proceedings to allow Claimant an opportunity to present any evidence that would refute the Board’s finding that Claimant was responsible for the incorrect address. 

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