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).

---------------------------------------

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

====================

*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 - capricious disregard - conflicting evidence - lack of findings, etc. - **important decision**

Bertram v. UCBR – Cmwlth. Court – March 22, 2019 – reported decision (2-1)

majority and dissenting opinions - http://www.pacourts.us/assets/opinions/Commonwealth/out/12CD18_3-22-19.pdf?cb=1

Held:  Case remanded.  UCBR adopted Referee decision, without discussion, where it had not resolved a conflict in the evidence or made an essential crediblity determinatio.

From the opinion—

What is “capricious disregard” of the evidence?

“We have explained that it “occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.” Wise v. UCBR, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of evidence occurs “where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment.” Id. at 1263. It is the responsibility of the factfinder to resolve the conflicts in the testimony and explain why it has accepted, or rejected, each piece of relevant evidence. Id. The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an “appropriate component of appellate consideration in every case in which such question is properly brought before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002).”

The Board erred in adopting the Referee decision, in toto, without discussion or necessary findings

The Referee’s factual findings are based upon the testimony of an ER witness, but this testimony was contradicted by other testimony and by documentary evidence.   In addition, the ER witness testimony contained inconsistencies on the critical question on when the witness decided to fire Claimant.   By contrast, the completing testimony of a witness for Claimant was “clear” and “highly relevant.”  The Referee made no comment this testimony, and the Board “affirmed without explanation.”

The Referee and Board did not make an adequate determination of credibility –  silence is not an implicit finding

The decisions of both the Referee and Board were silent on the testimony of CL’s witness.   The Court soundly rejected the Board’s argument that the “Court must infer from silence that the Referee ‘implicitly” rejected” this testimony and “implicitly accepted” the testimony of the ER witness, in reliance on the following language from the Referee decision:

Both the claimant and the employer appeared at the unemployment compensation hearing to present testimony and evidence on the issues under appeal. The above findings represent the competent evidence and credibility determinations made by the Referee in rendering the following decision.

The Court’s response: “We reject the Board’s argument.”  It said that

            * First, the “boilerplate paragraph in the Referee’s determination is not dispositive of whether the Referee capriciously disregarded record evidence. This paragraph is generic, not specific to any of the evidence in this record. Simply, it is not a substitute for express credibility determinations, and it does not discharge the Board’s responsibility to consider and weigh the relevant evidence in a case.

            * “Second, it is not the responsibility of the reviewing court to divine the reason for the factfinder’s silence. Here, the highly relevant testimony of a disinterested third party did not elicit a single comment from the factfinder. As we have held, capricious disregard of evidence occurs where the factfinder “has completely ignored overwhelming evidence without comment.” Wise, 111 A.3d at 1263.

            * “Third, implicit credibility determinations do not resolve the conflicts between the testimonial and documentary evidence.“

For all of those reasons, the Court “conclude[d] that the Board has capriciously disregarded relevant evidence.”

The Referee hearing was the equivalent of no hearing at all.

Given the errors listed above, “[i]t is as if Claimant did not have a de novo hearing.   The Referee simply repeated, with virtually no discussion, the findings of the UC Service Center.”  The Referee did not address Claimant’s contentions on several dispositive issues and did not resolve conflicts between the testimony of key witness “with express credibility determinations.”   The Referee ignored, without comment, the testimony of the CL witness, as well as some uncontradicted testimony.  “Where ‘there is strong critical evidence that contradicts contrary evidence, the adjudicator must provide an explanation as to how it made its determination.” Bentley v. Bureau of Professional and Occupational Affairs, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).   The Referee disregarded “relevant and critical evidence. . . . The Board must resolve the conflicts in the record evidence in order for meaningful appellate review to take place. For these reasons, the Board’s adjudication is vacated, and this matter is remanded to the Board to issue a new adjudication in accordance with our instructions herein. “

Dissenting opinion of Judge Wojcik

The dissent held that the UCBR decision was acceptable, because there is “[n]othing in the unemployment [statute or] regulations [that] requires a referee or the Board to render a ‘reasoned’ decision that explicitly resolves all conflicting evidence. . . . While I agree that, generally, more detailed findings and discussion by the referee or the Board would be helpful, the findings made below are adequate to conduct meaningful appellate review, and there is nothing of record that would justify reversal. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.”

“We have repeatedly stated that it is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Sipps v. UCBR, 181 A.2d 479, 484 (Pa. Cmwlth. 2018); Kelly v. UCBR, 172 A.2d 718, 725 (Pa. Cmwlth. 2017); Ductmate Industries, Inc. v. UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Further, we have consistently observed that, while the Board must make crucial findings on the essential issues, “[the Board] is not required to address specifically each bit of evidence offered.” Panella v. UCBR (Pa. Cmwlth., No. 351 C.D. 2013, filed August 29, 2013), slip op. at 4 (citation and quotation omitted).4 See also Kunselman v. UCBR (Pa. Cmwlth., No. 444 C.D. 2012, filed February 7, 2013), slip op. at 3 n.2 (same); and Kozlina-Peretic v. UCBR (Pa. Cmwlth., No. 1088 C.D. 2008, filed December 23, 2008), slip op. at 3 (same).”

appellate rules - citation of non-precedential authorities/decision not readily available - PRAP 126

Rule                http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010390159553019079.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20%2010390159553023916.pdf?cb=1

PFA - amendments to forms - Pa RCP 1905

Amendment to PFA forms, Pa. RCP 1905

Forms             http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010390298753094842.pdf?cb=1

Order             http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010390298753094919.pdf?cb=1 – effective 4-10-19

                        

debt collection - "debt collector" includes entity that hires another to do the collecting

Barbato v. Greystone Alliance LLC – 3d Cir. – February 22, 2019

https://www2.ca3.uscourts.gov/opinarch/181042p.pdf

The Fair Debt Collection Practices Act protects consumers from abusive, deceptive, or otherwise unfair debt collection practices. 15 U.S.C. § 1692(a).   It applies to “debt collectors,” defined alternatively as those engaged “in any business the principal purpose of which is the collection of any debts” and those “who regularly collect[]” debts “owed or due another.” Id. § 1692a(6).   

Held:  The term “debt collector” includes an entity that acquires a debt for the “purpose of . . . collection” but outsources the actual collection activity qualifies as a “debt collector.”   An entity that otherwise meets the “principal purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting.

UC - late appeal - admission to medical facility

Jenkins v. UCBR – Cmwlth. Court – October 30, 2018 – ordered to be reported 2-15-19

http://www.pacourts.us/assets/opinions/Commonwealth/out/1352CD17_2-15-19.pdf?cb=2

Held:  Claimant’s absence from his mailing address during the appeal period was attributable to non-negligent conduct, i.e. his admission to an inpatient drug treatment facility for a one-month period.   His late appeal was allowed and the case remanded for a hearing on the merits, i.e., whether his suspension for willful misconduct (excessive absenteeism and tardiness) was willful misconduct.  The claimant, who was not computer literate, tried to contact the UCSC by phone while he was in treatment, but got a busy signal every time.  The referee and Board credited the claimant’s testimony in that regard.

Nunc pro tunc appeals

An appeal nunc pro tunc is permitted when the appeal delay results from extraordinary circumstances involving fraud or some breakdown in the administrative process. McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006). In Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), this standard was relaxed somewhat. In that case, the appellant’s attorney had his secretary prepare appeal papers for the appellant six days prior to the appeal deadline. The secretary was responsible for filing the appeal and ensuring that all secretarial work for the office was performed. The secretary fell ill and was out of the office for a week, during which time the appeal deadline passed. She filed the appeal within three days of her return to work. Our Supreme Court allowed the appeal to proceed nunc pro tunc because the delay was caused by the non-negligent act of a third party and was promptly corrected.

Non-negligent conduct of claimant or counsel

More recently, in Cook v. UCBR, 671 A.2d 1130 (Pa. 1996), our Supreme Court extended the Bass principles to allow a nunc pro tunc appeal where the non-negligent conduct was that of the appellant himself. . . . [In Cook, our Supreme Court] refined the Bass standard as follows: We believe a better statement of the rule in Bass is that where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Id. at 1131.

This case did not involve voluntary travel or voluntary absence from the home

The Court rejected the Board’s attempt to analogize cases where the claimant had been absent from his mailing address for voluntary travel, e.g., See, e.g., Karmiev v. UCBR (Pa. Cmwlth., No. 1060 C.D. 2016, filed March 24, 2017); Plut v. UCBR (Pa. Cmwlth., No. 2283 C.D. 2007, filed October 14, 2008); Hanin v. UCBR, 377 A.2d 1062 (Pa. Cmwlth. 1977).  The Court agreed with Claimant that his case is in line with the paradigm established in Cook, 671 A.2d 1130, where a nunc pro tunc appeal was allowed because of the appellant’s hospitalization for a serious medical condition. See also B.B. v. Department of Public Welfare, 118 A.3d 482 (Pa. Cmwlth. 2015). The Referee credited Claimant’s testimony in its entirety, including that he was admitted to the Livengrin Inpatient Residential Program during the appeal period and believed, based on prior experience, that there would be no problem with his unemployment application.

No duty to have mail forwarded in every case

The Board asserts that every claimant has a duty to have his mail forwarded when he is absent for any reason and for any duration from the mailing address given to the Department. We reject the Board’s assertion. Forwarding mail is a step undertaken when one leaves home for an extended period of time, not for a vacation or hospitalization.

Breakdown in administrative process – inability to contact UCSC by phone

Claimant’s case is distinguishable from the cases cited by the Board for an additional reason. Claimant testified credibly that he attempted to contact the UC Service Center by phone but always got a busy signal.8 Claimant points out that his appeal period coincided with the height of a funding crisis at the Department of Labor and Industry that resulted in substantial staff reductions beginning in December 2016. Claimant’s credited testimony that he tried unsuccessfully to contact the UC Service Center by phone weighs in favor of granting nunc pro tunc relief since it is evidence that Claimant acted reasonably to learn the status of his application but was unsuccessful due to no fault of his own

UC - late appeal - misleading admin. actions

Begovic v. UCBR – Cmwlth. Court – February 19, 2019 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/638CD18_2-19-19.pdf?cb=1

Contact by UC authorities subsequent to initial adverse determination were sufficiently misleading as to constitute an administrative breakdown and, thus, allow a late appeal, nunc pro tunc. 

From the opinion –

If an appeal is not filed within 15 days of mailing, the referee and the Board lack jurisdiction to consider the matter, and the initial eligibility determination becomes final. Roman-Hutchinson v. UCBR, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009); United States Postal Service v. UCBR, 620 A.2d 572, 573 (Pa. Cmwlth. 1993). An appeal filed even 1 day after the 15-day appeal period is untimely and must be dismissed. Hessou v. UCBR, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008).

There is an exception, though, and an appeal nunc pro tunc may be allowed “where a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to an appellant or [her] counsel or a third party.” Russo v. UCBR, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). In cases where a claimant is “unintentionally misled by an official who is authorized to act in the premises, the time [for appeal] may also be extended when it is possible to relieve an innocent party of injury consequent on such misleading act.” Flynn v. UCBR, 159 A.2d 579 (Pa. Super. 1960). See also Stana v. UCBR, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). Further, “[W]here an administrative body acts negligently, improperly or in a misleading way, an appeal nunc pro tunc may be warranted.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000).

In line with Martyna v. UCBR, 692 A.2d 594 (Pa. Cmwlth. 1997), and Waters-Bey v. UCBR,  (Pa. Cmwlth., No. 777 C.D. 2016, filed June 12, 2017) [citing the  court’s Internal Operating Procedures, allowing citation un an unreported opinion for its persuasive value. 210 Pa. Code §69.414(a).], the Court held that the Department’s letter, which erroneously indicated that another letter was forthcoming, coupled with the phone call from the Department representative, which occurred during Claimant’s appeal period and in the course of the wage investigation she sought, but after the Department sent her the Revised Financial Determination, were sufficiently misleading so as to constitute a breakdown in the administrative process. The Department was apparently confused about its own procedures as reflected by 15 the timing and the indication that it would issue a new revised financial determination was false.  

As we said in Martyna, “If [the Department] was mistaken, [Claimant] should not bear the consequences of that administrative confusion.” Martyna, 692 A.2d at 598 [emphasis added]. Thus, we remand for a decision on the merits of Claimant’s appeal from the Revised Financial Determination regarding her wages earned from OPI. Accordingly, we reverse the Board’s April 9, 2018 order and remand for a decision on the merits of the issues Claimant raised on appeal.

**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

parties - unknown/John Doe defendants - rules of civil procedure

Pa. R.C.P. 1007, 1018, 1033, 2005 -    http://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20%2010385516448046778.pdf?cb=1

Effective date – April 1, 2019 - http://www.pacourts.us/assets/opinions/Supreme/out/Order%20%2010385516448046630.pdf?cb=1

Explanatory comment – http://www.pacourts.us/assets/opinions/Supreme/out/Report%20%2010385516448046733.pdf?cb=1

The Supreme Court of Pennsylvania has adopted new Rule 2005 governing the naming of unknown, or John/Jane Doe, defendants in a complaint. Currently, the Rules of Civil Procedure are silent as to the use of Doe defendants in litigation; however, case law shows that the naming of Doe defendants has occurred. Rule 2005 is intended to fill this gap by standardizing the procedure in which to assert a cause of action against a Doe defendant.

UC - appeal - capricious disregard of competent, relevant evidence

Jamie One, LLC v. UCBR – Cmwlth. Court – January 4, 2019 – unreported** memorandum opinion

The court rejected the employer’s appeal and upheld the grant of benefits.  In the course of its opinion, not otherwise of special value, the court discussed the argument that the Board capriciously disregarded competent, relevant evidence in reaching its decision.  The court discussed this as follows:

Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the fact finder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored evidence without comment. Wise v. UCBR, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Id

Here is the relevant discussion from Wise v.  UCBR – 111 A. 3d 1256, 1262-3 (Pa. Cmwlth. 2015)

A capricious disregard of evidence occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result. Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa.Cmwlth.2014). The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an "appropriate component of appellate consideration in every case in which such question is properly before the court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478, 487 (2002). In Wintermyer, the Supreme Court noted that where there is substantial evidence to support the agency's factual findings and those findings support the legal conclusions, "it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard." Id. at 487 n. 14. The standard 1263*1263 announced in Wintermyer applies whether one or both parties present evidence and, thus, overruled this Court's earlier-announced paradigm that appellate review for capricious disregard of evidence was limited to the circumstance where the burdened party was the only party to present evidence and did not prevail. See, e.g., Lautek Corporation v. Unemployment Compensation Board of Review, 138 Pa. Cmwlth. 547, 588 A.2d 1007, 1010 (1991).

Disturbing an agency's adjudication for a capricious disregard of evidence is appropriate only where the fact-finder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment. Hinkle v. City of Philadelphia,881 A.2d 22, 27 (Pa.Cmwlth.2005). In Hinkle, this Court, citing Wintermyer,explained that:

"Capricious disregard" then is just another name for the agency abusing its discretion and is an error of law when the agency fails to give an indication that it has examined countervailing substantive testimony that had to be considered at arriving at its decision.

The capricious disregard standard then is nothing more than a shorthand way of referring to an amalgam of existing overlapping legal and constitutional standards mentioned above that safeguard against arbitrariness by state and local administrative agencies by requiring a meaningful explanation of why the losing party's overwhelming evidence was not accepted.

Id. (footnote omitted). An appellate court conducting a review for capricious disregard of material, competent evidence may not reweigh the evidence or make credibility determinations. Spencer, 97 A.3d at 842 (Pa.Cmwlth.2014) (citing Wintermyer, 812 A.2d at 487-88).

=====================

**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 - willful misconduct - claimant did not violate employer rule on "weapons"

Cambria County Transit Authority v. UCBR – Cmwlth. Court – January 8, 2019 – reported opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/454CD18_1-8-19.pdf?cb=1

Held: Claimant did not violate employer rule concerning “weapons” by picking up a knife in the employee lounge and putting it right back down.  Board found that claimant did not threaten anyone and that the knife had been in lounge for years and had been used for preparing and cutting food, and the like.  Employer’s HR manager admitted that, in the absence of a threat, possession of a metal knife in the employee’s lounge was not a violation of Employer’s policies.

employment - employee information - employer duty to protect - damages

Dittman v. UPMC – Pa. Supreme Court – November 21, 2018

Held:

[A]n employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.

Under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract.

mootness

Clean Air Council v. County of Allegheny – Cmwlth. Court – November 19, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/515CD18_11-19-18.pdf?cb=1

This case is not of interest as far as substance, but it has the following discussion of the doctrine of mootness.

The mootness doctrine requires an actual case or controversy to exist at all stages. It is a well-established principle of law that this Court will not decide moot questions. The articulation of the mootness doctrine . . . was acknowledged in . . . In re Gross, . . . 382 A.2d 116 ([Pa.] 1978) as follows: The problems arise from events occurring after the lawsuit has gotten under way-changes in the facts or in the law-which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that ‘an actual controversy must be extant at all stages of review. . . .’ G. Gunther, Constitutional Law 1578 (9th ed. 1975). [In re Gross], 382 A.2d at 119.

An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991). Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011). Further, [the Pennsylvania Supreme] Court has repeatedly recognized two exceptions to the mootness doctrine: (1) for matters of great public importance and (2) for matters capable of repetition, which are likely to elude review.

Moreover, we have found this exception applicable where a case involves an issue that is important to the public interest or where a party will suffer some detriment without a court decision.   Pilchesky v. Lackawanna Cty., 88 A.3d 954, 964-65 (Pa. 2014) (citation omitted).

                                                              

Under the mootness doctrine, ‘an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ Pub. Defender’s Office of Venango [Cty.] v. Venango [Cty.] Court of Common Pleas, . . . 893 A.2d 1275, 1279 ([Pa.] 2006) [(quoting Pap’s A.M. v. City of Erie, . . . 812 A.2d 591, 599-600 ([Pa.] 2002))]. The existence of a case or controversy requires ‘a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication. . . .’ City of Phila[.] v. [Se. Pa. Transp. Auth.], 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007). Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010). Further, [i]t is well settled that the courts ‘do not render decisions in the abstract or offer purely advisory opinions.’ Pittsburgh Palisades Park, LLC v. Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005). Judicial intervention ‘is appropriate only where the underlying controversy is real and concrete, rather than abstract.’ City of Phila[.] v. Commonwealth, . . . 838 A.2d 566, 577 ([Pa.] 2003). Harris, 982 A.2d at 1035. “The key inquiry in determining whether a case is moot is whether the court or agency will be able to grant effective relief and whether the litigant has been deprived of the necessary stake in the outcome of the litigation.” Consol Pa. Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28, 39 (Pa. Cmwlth. 2015)

======================

*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)

UC - appeal - waiver of issue - UCBR argument held to be "sophistry"

Patnesky v. UCBR – Cmwlth. Court (2-1) – unreported* memorandum decision

http://www.pacourts.us/assets/opinions/Commonwealth/out/591CD17_10-29-18.pdf?cb=1

The Court held that the employer failed to prove willful misconduct of a state driver’s license examiner who issued a replacement ID card for the “incapacitated” child of a co-worker.   The Court said that the claimant’s conduct did not violate a work rule, which it found to be ambiguous, thus resulting, at worst, in an inadvertest or negligent violation of the rule rather than the required deliberate violation.   It is well established that noncompliance with a work rule in itself does not amount to a “deliberate violation.” Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct.”).   

UCBR argument that claimant had waived an issue was held to be “sophistry.”

The more significant part of the opinion  rejected the Board’s position that claimant had waived an argument. 

At the outset, we address the Board’s waiver argument, which it makes in virtually every brief it files with this Court. The Board asserts that because the statement of questions in Claimant’s brief raises only the issue of whether Claimant committed disqualifying willful misconduct under Section 402(e) of the Law, Claimant cannot challenge the Referee’s “findings of fact,” which in this case include a statement that Claimant violated Employer’s confidentiality policy because [the incapacitated child] “was not present during the transaction.” . . . .Finding of Fact No. 6.   

By couching the legal conclusion that Claimant violated the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts that the ultimate legal issue in this case is beyond appellate review. This is sophistry.

Whether Claimant’s actions constituted disqualifying willful misconduct is a question of law fully reviewable by this Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding that legal issue, this Court must determine whether Claimant’s actions.  violated Employer’s policy as was concluded by the Board. We reject the Board’s waiver argument and proceed to the merits of Claimant’s appeal.

============================

*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 - fair hearing - unrepresented party - duty of referee to assist - "full and fair hearing"

Scott v. UCBR – Cmwlth. Court – October 19, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/419CD18_10-19-18.pdf?cb=1

Held:  Case remanded because claimant was not afforded a “full and fair hearing.”   The referee “precluded claimant from introducing potentially relevant evidence that would support his claim that he was discharged” rather than had quit his job.  The referee “could have taken a few minutes to review the additional documents [that] Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the claims [that] Claimatn sought to introduce, before precluding the evidence.”

Admission of evidence

In UC proceedings, the Referee has “wide latitude” regarding the admission of evidence. Creason v. UCBR, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). However, the Referee “is not free to disregard rules of evidence and if evidence is not relevant[,] the [R]eferee may exclude it.” Id. Despite this broad discretion, the Referee “may not improperly refuse to accept relevant competent and material evidence.” Healey v. UCBR, 387 A.2d 1025, 1027 (Pa. Cmwlth. 1978).

Duty to assist pro se claimant

The [R]eferee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to “insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.” The [R]eferee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982); see also 34 Pa. Code § 101.21(a).  While the Referee is not obligated to advocate on behalf of a pro se claimant, see Stugart v. UCBR, 85 A.3d 606, 609 (Pa. Cmwlth.  2014), the Referee is required to reasonably assist a pro se claimant in developing the necessary facts.

In this case, a key issue before the Referee was whether Claimant was discharged from his employment or whether he voluntarily quit.   Rather than assist Claimant, however, the Referee precluded Claimant from introducing potentially relevant evidence that would support his claim that he was discharged.   Because the Referee excluded both the missing Service Center documents and the emails, we do not know the extent of any overlap between the documents and the emails or whether any of that evidence was relevant to the issues before the Referee. The Referee could have taken a few minutes to review the additional documents Claimant had submitted to the Service Center, given Claimant an opportunity to explain their relevance, and compared those documents to the emails Claimant sought to introduce before precluding the evidence. Because the Referee 9 failed to take these steps, we conclude that she did not “act reasonably in assisting in the development of the necessary facts.” Hackler v. UCBR, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).

================

*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

courts - jurisdiction - foreign corporation - registration in Pa. - consent

Murray v. American Lafrance, LLC – Pa. Super. – reported, published – September 25, 2018

majority        

dissent

Held:  A corporation consents to jurisdiction of Pennsylvania courts when it registers as a foreign corporation under 42 Pa. C.S. 5301 (a) (2) (i-iii).

From the opinion

We observe that whether a foreign corporation consents to general personal jurisdiction in Pennsylvania by registering to do business in the Commonwealth is a matter of first impression in this Court. Our review of the caselaw has revealed that neither this Court nor our Supreme Court has had the occasion to determine whether, post-Daimler, registering to do business as a foreign corporation in the Commonwealth constitutes consent for the purposes of exercising general personal jurisdiction. However, Bors v.  Johnson & Johnson, 208 F. Supp. 3d 648 (E.D. Pa. 2016), provides a persuasive, well-reasoned analysis and we cite it with approval.

In Bors, supra, the district court considered whether Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler eliminated consent by registration under section 5301 as a basis for jurisdiction. See Bors, supra at 653-54. The Bors court reasoned that “Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business[,]” and concluded that “[c]onsent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler.” Id. at 655; see also Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *4 (E.D. Pa. filed June 13, 2017) (“conclud[ing] that, by registering to do business under § 5301, Smitty’s consented to general personal jurisdiction in Pennsylvania and that its consent is still valid under Goodyear [Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011),] and Daimler.”).

In this case, Appellee registered as a foreign corporation to do business in Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so, we hold that it consented to general personal jurisdiction in Pennsylvania. See Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640. Therefore, based on the relevant caselaw, and the language of section 5301(a), we conclude that the trial court erred when it dismissed these actions for lack of personal jurisdiction.8 Accordingly, we vacate the orders sustaining the preliminary objections, and remand these cases to the trial court.

debt collection - FDCPA -false, misleading - statement about IRS

Schultz v. Midland Credit Management – 3d Cir.- September 24, 2018

http://www2.ca3.uscourts.gov/opinarch/172244p.pdf

A statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq. , particularly the threat to take any action that cannot legally be taken or that is not intended to be taken. . . . The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. §§ 1692e(5), (10).

Whether a collection letter is “false, deceptive, or misleading” under § 1692e is determined from the perspective of the “least sophisticated debtor.” Brown, 464 F.3d at 453.

Here, the reporting requirement under the Internal Revenue Code is wholly inapplicable to the Schultzes’ debts because none of them totaled $600 or more, and IRS regulations clearly state that only discharges of debt of $600 or more “must” be included on a Form 1099-C and filed with the IRS. See 26 C.F.R. § 1.6050P-1(a).   By including the reporting language on collection letters addressing debts of less than $600, we believe that the least sophisticated debtor might be persuaded into thinking that the discharge of any portion of their debt, regardless of amount discharged, may be reportable.

Based on the foregoing, we will reverse the May 8, 2017, Order of the District Court as we find that the Schultzes have pled sufficient factual allegations that state a plausible claim upon which a court may grant relief under the FDCPA. We will therefore remand for further proceedings consistent with this opinion.

==============