UC - willful misconduct - absences - failure to report

Rothlein v. UCBR – Cmwlth. Court – 2-24-23 – unreported memorandum opinion**

https://www.pacourts.us/assets/opinions/Commonwealth/out/1102CD20_2-24-23.pdf?cb=1

 

Held: Claimant disqualified for willful misconduct for failure to report his absences due to illness.

 

From the opinion:

 

The employer bears the burden of proving that the claimant committed willful misconduct. Grand Sport Auto Body v. UCBR., 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc) (citing Docherty v. UCBR., 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006)). 

If the employer satisfies this initial hurdle, the burden shifts to the claimant to establish good cause for his or her actions. Id. (citing McKeesport Hosp. v. UCBR, 625 A.2d 112, 114 (Pa. Cmwlth. 1993)). Good cause exists where the claimant’s actions “are justifiable and reasonable under the circumstances.” Id. (quoting Docherty, 898 A.2d at 1208-09). 

Illness is a good cause defense to willful misconduct due to absenteeism. Owens v. UCBR, 748 A.2d 794, 798 (Pa. Cmwlth. 2000) (citing McKeesport Hosp., 625 A.2d at 114). 

A claimant’s illness will not establish good cause, however, where the claimant fails to properly report his or her absences. See Schlappich v. UCBR., 485 A.2d 855, 857 (Pa. Cmwlth. 1984) (citing Manatawny Manor v. UCBR, 401 A.2d 424 (Pa. Cmwlth. 1979)); Gelles v. UCBR, 452 A.2d 91, 92 (Pa. Cmwlth. 1982) (citing Gochenauer v. UCBR., 429 A.2d 1246, 1248 (Pa. Cmwlth. 1981)).

In this matter, . . .although Claimant may have missed work due to illness, Employer’s documentation reveals that he failed to demonstrate good cause, because he did not report many of his absences.10 See Schlappich, 485 A.2d at 857 (citing Manatawny Manor, 401 A.2d 424). 

+++++++

 

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

Judges - judicial education - MDJs

Order 

https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20105444134213626721.pdf?cb=1

 

Rules

https://www.pacourts.us/assets/opinions/Supreme/out/attachment%20-%20105444134213626710.pdf?cb=1

 

 

Proposed Rules for Minor Judiciary Education - Final

TITLE 204 - JUDICIAL SYSTEM GENERAL PROVISIONS PART II. GENERAL ADMINISTRATION CHAPTER XX. MINOR JUDICIARY EDUCATION

Rule 101. Purpose 

The public properly expects that judges at all levels of the judiciary will maintain professional competence and ethical behavior. To meet the public's expectations and to ensure that magisterial district judges and arraignment court magistrates have and maintain the requisite knowledge and skills to perform the duties of their office, these rules are promulgated in accordance with 42 Pa.C.S. § 3119 to prescribe standards for implementation of 42 Pa.C.S. §§ 3111 et seq. 

Rule 102. Scope and Citation 

(a) Scope. Magisterial district judges, arraignment court magistrates, and prospective candidates for each office must comply with certifying and continuing education requirements as set forth in 42 Pa.C.S. § 3111 - § 3119 and Pa.R.J.A. 601-603 as administered by the Minor Judiciary Education Board. 

(b) Citation. These rules shall be known as the Pennsylvania Minor Judiciary Education Rules ("rules") and may be cited as Pa.M.J.E. Rule_." 

Rule 103. Definitions 

Subject to any definitions contained in subsequent rules, the following words and phrases, when used in these rules, shall have, unless the context clearly indicates otherwise, the following meanings: 

"Arraignment Court Magistrate." A bail commissioner in the City of Philadelphia. "Board." The Minor Judiciary Education Board appointed by the Supreme Court of 

Pennsylvania as set forth in 42 Pa.C.S. § 2132. 

"Certification Course." A course of training and instruction in the respective duties of magisterial district judges and arraignment court magistrates, provided to interested persons who wish to seek or serve in these offices, and who are not members of the Bar of this Commonwealth. 42 Pa.C.S. § 3112 - § 3114; Pa.R.J.A. 601. 

"Certification Examination." A written examination designed to demonstrate that prospective magisterial district judges and arraignment court magistrates possess the requisite knowledge to competently discharge the duties of the office. 

"Continuing Education." An annual course of instruction designed to ensure that magisterial district judges and arraignment court magistrates maintain the requisite knowledge and skills to fulfill their judicial responsibilities. 

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"Department." The Judicial Education Department of the Administrative Office of Pennsylvania Courts. 

"Distance Education." Education that is delivered from a host site to a remote site via electronic transmission. 

"Judge." A commissioned jurist in the Commonwealth's Unified Judicial System who serves as a magisterial district judge or an arraignment court magistrate. The term also includes judges serving on the aforementioned courts in senior status pursuant to Pa.R.J.A. 701. 

"Judicial Education." Includes topics of study for certification and continuing education that encompass substantive and procedural law and judicial ethics, as well as topics to enhance judicial skills, including, but not limited to, case management, legal history, philosophy of law, and the physical and social sciences. 

"Judicial Education Course." Includes, but is not limited to, certification courses, continuing education courses, and supplemental practicum courses. 

"Supplemental Practicum." A continuing education course designed to address the unique educational needs of newly elected or appointed magisterial district judges and arraignment court magistrates. Pa.R.J.A. 602(b). 

"Supreme Court." The Supreme Court of Pennsylvania. Rule 201. Minor Judiciary Education Board 

The primary purpose of the Board is to develop and administer, subject to Supreme Court approval, certification courses and examinations, continuing education, and supplemental practicums, as provided in Chapter 31 of Title 42 and Pa.R.J.A. 601-603. 

Rule 202. Compensation and Expenses; Immunity 

(a) Board members shall receive no compensation for services provided under these rules, including services as instructors, but they shall be reimbursed by the Board for their reasonable and necessary expenses in attendance at meetings and in otherwise fulfilling their responsibilities. 

(b) The Board, and its members, employees and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the administration of the initial and continuing education requirements under 42 Pa.C.S. § 3111 - § 3119 and Pa.R.J.A. 601-603. 

Rule 203. Powers and Duties of the Board 

The Board is authorized: 

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(a) To administer these rules and the requirements of 42 Pa.C.S. § 3112 - § 3118 and Pa.R.J.A. 601-603, and to act as ordered, directed, or requested by the Supreme Court. 

(b) To develop all course curricula and manage all scheduling, faculty selection and other logistics for administration of certification, continuing education, and supplemental practicum courses. 

(c) To determine if judges and certification candidates are in compliance with these rules and to hear appeals from determinations of noncompliance. 

(d) To hear and decide requests from judges for waivers, extensions, or deferments from the requirements set forth in 42 Pa.C.S. § 3113 and § 3118 and theserules. 

(e) To undertake all reasonable action to implement the requirements of 42 Pa.C.S. § 3112 - § 3118, Pa.R.J.A. 601-603, and these rules. 

(f) To delegate to the Department or Board staff ministerial functions as necessary and appropriate to administer these rules. 

(g) To vote upon all matters requiring action by the Board. The manner of making and debating motions and determining the votes necessary for Board action shall be decided by the Chair, unless overridden by a Board majority. 

Rule 204. Quorum and Votes 

A minimum of five (5) Board members participating in a meeting shall constitute a quorum. · A quorum may be established with the participation of members by advanced communication technology. The Board may adopt rules providing for teleconference meetings. In accordance with 42 Pa.C.S. § 2133, the Board shall act only with the 

concurrence of at least four (4) members. 

Rule 205. Confidentiality 

(a) The files, records, and proceedings of the Board shall be deemed confidential and shall only be disclosed upon order by the Supreme Court or as required by law. 

(b) The Board shall submit an annual report to the Supreme Court, providing information on judicial compliance and other information deemed relevant by the Board or as directed by the Supreme Court. 

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(c) All documents or information deemed confidential under the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall not be disclosed, unless as permitted under that policy and these rules. 

Rule 301. Continuing Education Requirements 

(a) Magisterial district judges shall, on an annual basis as defined by the Board, complete thirty-two (32) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(a)(1); Pa.R.J.A. 602(a). 

(b) Arraignment court magistrates shall, on an annual basis as defined by the Board, complete twenty (20) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(b). 

(c) All newly elected or appointed magisterial district judges shall, within twelve (12) months of assuming office, complete a thirty-two (32) hour supplemental practicum in accordance with the requirements of Pa.R.J.A. 602(b). This requirement shall be in addition to the annual continuing education requirement. 

Rule 302. Judicial Education Standards 

Judicial education courses developed under these rules shall meet the following standards: 

(a) Judicial education must, to the greatest extent possible, address judges' distinct educational needs. 

(b) A course shall have significant intellectual or practical content, the primary objective of which is to improve the participants' professional competence and ethical behavior. 

(c) A course shall be an organized program of learning to deal with matters directly related to subjects which satisfy the objectives of 42 Pa.C.S. § 3113 and § 3118 and these rules. 

(d) A course must be presented in a suitable setting, conducive to a good educational environment, which provides attendees with adequate writing space or surface. 

(e) The Board may limit class sizes to create and maintain environments that are conducive to learning and that provide maximum engagement by the learner. 

(f) The Board may, at its discretion or as budgetary and administrative circumstances require, allow for distance education to satisfy some or all judicial education required by 42 Pa.C.S. § 3113 and § 3118 and these rules. Courses delivered by distance education must: 

4 

1. provide mechanisms to ensure interactivity and/or monitor course participation; 

2. be completed in such a manner that certification of attendance is controlled and proof thereof is determined by the Board; and 

3. include a mechanism to allow for course evaluations in a format determined by the Board. 

(g) Self-study will not be approved for certification, continuing education or supplemental practicum requirements. 

(h) Program leaders or presenters shall be qualified with the practical and/or academic experience necessary to conduct the program effectively. 

(i) Leaders or presenters may receive compensation at a rate determined by the Board, subject to the approval of the Court Administrator. 

(j) Though written materials may not be appropriate to all courses, they are expected to be utilized whenever possible. When written materials are deemed appropriate, each attendee shall be provided with a thorough, high quality and carefully prepared copy before or at the time of the course. 

(k) The Board shall make reasonable accommodations, in accordance with the Americans with Disabilities Act, for certification course, continuing education and supplemental practicum attendees as required. 

(I) The Board shall develop and implement methods to evaluate its course offerings to determine their effectiveness and the extent to which they meet judges' unique educational needs. 

Rule 303. Certification and Examination 

(a) All persons elected or appointed as judges shall be members of the bar of this Commonwealth or shall attend a certification course, which shall be at least forty (40) hours in length, and earn a passing score of seventy percent (70%) on the certification examination prior to assuming office, as set forth in 42 Pa.C.S. § 3112 - § 3114 and Pa.R.J.A. 601(a). 

(b) The content of the certification course shall include, but shall not be limited to, the requirements set forth in 42 Pa.C.S. § 3113(b) and any other provision of rule or law as determined by the Board in accordance with these rules. 

5 

(c) The certification course shall be scheduled with sufficient frequency to ensure that, once elected or appointed, a judge may qualify to assume office at the earliest opportunity in accordance with 42 Pa.C.S. § 3113(a). 

(d) The certification course shall be open to any interested person, in accordance with 42 Pa.C.S. § 3114. 

(e) Certification course attendees shall not be charged a fee to attend the certification course and shall be provided instructional materials at no cost. 42 Pa.C.S. § 3117. The Board shall determine what constitutes appropriate instructional material. 

(f) Certification course attendees are responsible for all costs and expenses related to their attendance beyond those enumerated in 42 Pa.C.S. § 3117. 

(g) The Board shall offer a certification examination within thirty (30) days of each certification course. 

(h) The Board shall offer any person who does not successfully pass the examination referenced in paragraph (a) an opportunity to sit for the examination again prior to the next certification course. Thereafter, if the person has not successfully passed the examination, he or she will have the opportunity to sit for the examination again following the conclusion of the next regularly scheduled certification course. The Board may limit the number of times unsuccessful candidates may retake the exam without first retaking the certification course. 

Rule 304. Supplemental Practicum 

(a) TheBoardshalldeterminethelengthandthecontentofthecontinuingeducation practicum course required by Pa.R.J.A. 602(b). 

(b) Practicum exercises must be part of the course of instruction. 

Rule 401. Waivers and Special Status 

(a) Waiver. A waiver is a grant by the Board that continuing education requirements may be excused. The Board may waive any amount of continuing education requirements for a period of not more than one (1) year upon a finding by the Board of: 

1. undue hardship, including extraordinary situations that could not reasonably have been anticipated; 

2. circumstances beyond the control of the judge that prevent the judge from complying in any reasonable manner with continuing education requirements; or 

6 

3. circumstances under which the Board determines a waiver request manifestly demonstrates good cause. 

(b) Senior judges.
1. Newly certified senior judges must complete the supplemental practicum 

required by Pa.R.J.A. 602(b). 

2. Senior judges must compete annual continuing education courses as required by these rules. 

(c) Members of the Armed Forces. Compliance with these rules shall be waived for members of the Armed Forces on active duty during the period of their active duty. A judge completing active duty shall notify the Board within thirty (30) days of returning to judicial service. Thereafter, the judge must comply with continuing education requirements for the forthcoming year. 

Rule 501. Noncompliance 

(a) The Board shall notify in writing any judge who does not comply with the continuing education requirements. There shall be no exceptions or exemptions from the continuing education requirements set forth in 42 Pa.C.S. § 3118 and Pa.R.J.A. 602, except those enumerated herein. 

(b) Noncompliance shall constitute grounds for the Supreme Court to declare a vacancy in that district in accordance with 42 Pa.C.S. § 3118(a)(2) and Pa.R.J.A. 602(a). 

(c) TheBoardshallreporttotheSupremeCourtandtotheJudicialConductBoard any judge who fails to complete their annual continuing education requirement. 

Rule 601.Hearings 

(a) Any judge or certification candidate aggrieved by a decision of the Board may petition for a hearing before the Board within ninety (90) days of the decision. 

(b) Requestsforhearings.AllrequestsforhearingsshallbeaddressedtotheMinor Judiciary Education Board, 601 Commonwealth Avenue, Suite 2500, P.O. Box 62475, Harrisburg, Pennsylvania 17106-2475. All matters shall be heard by the Board, unless in the discretion of the Board Chair, the matter should proceed as otherwise provided in this rule. 

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(c) In the discretion of the Board's Chair, a matter initially may be assigned to a Board member or panel of Board members for decision. If the hearing is conducted by more than one (1) person, the Chair of the Board shall designate one person who will act as the presiding hearing officer. Within thirty (30) days after the hearing, the member or panel shall submit a recommendation to the Board. 

(d) Afterreceiptofthememberorpanel'srecommendation,theBoardshallreview the matter based upon the existing record, or in its discretion, conduct such further proceedings as it deems appropriate, or review the matter de novo. 

(e) At all hearings, the petitioner shall have the burden of proof of establishing compliance with these rules by a preponderance of the evidence. Counsel for the Board shall represent the Board if directed to do so by the Board. 

(f) At the hearing, any party shall have the opportunity to call witnesses, examine and cross-examine witnesses, and to introduce such evidence as is relevant to the proceeding. Evidence shall be admitted at the discretion of the Board, and as long as that discretion is not abused, the Board shall not be restrained by technical Rules of Evidence. 

(g) Allhearingsshallbeconfidential,andshallnotbeopentothepublic,exceptat the request of the petitioner. Witnesses shall be sworn and a complete electronic record or a transcript shall be made. The presiding hearing officer shall have authority to rule on all motions, objections, and other matters presented. 

(h) Ininvestigationsandproceedingsundertheserules,theBoardshallhavepower to issue subpoenas and cause testimony to be taken under oath before the Board or Board members. All subpoenas shall be issued in the name and under the seal of the Supreme Court and served as provided by the Rules of Civil Procedure. Fees and costs of the subpoenas shall be paid from the funds of the Board or taxed as costs, as determined by the Board. 

(i) Themember,panel,orBoard,asthecasemaybe,mayorderthetestimonyofa witness to be taken by deposition within or without this Commonwealth in the manner prescribed for the taking of depositions in the Rules of Civil Procedure and the depositions may be used to the same extent as permitted under those rules. Costs for the taking of a deposition shall be paid from the funds of the Board or taxed as costs, as determined by the Board. 

(j) Within ninety (90) after the conclusion of a proceeding, the Board shall issue its decision. A copy of the Board's decision shall be promptly mailed to the petitioner by the Board. 

(k) Ifajudgeisdeemedtobenoncompliant,arequestforahearingshallnotoperate as a stay or supersedeas of any action taken by the Board with respect to the judge's 

8 

noncompliance, unless upon application and good cause shown, the Board grants a stay or supersedeas of its action. 

(I) A petitioner aggrieved by a Board decision may request reconsideration. There is no right to appeal provided under these rules. 

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UC - willful misconduct - hearsay - corroborating evidence

Pierce-Boyce v. UCBR – Cmwlth. Court

 

Order directing opinion to be reported – 1-31-23 https://www.pacourts.us/assets/opinions/Commonwealth/out/725CD21ORD_1-31-23.pdf

 

Opinion – 11-16-22

https://www.pacourts.us/assets/opinions/Commonwealth/out/725CD21_1-31-23.pdf

 

 

Held: Claimant guilty of willful misconduct for speeding, as established by unobjected-to GPS report that was “corroborated” by Claimant’s own testimony as follows: “I don’t know about the GPS. I wasn’t aware of the GPS but if that’s what they are recording I’m not going to battle that because I don’t know.”

 

The court said that when asked if she contested the GPS report the claimant “conceded to its accuracy” in making the statement cited above.

 

++++++++++

 

Editorial comment:  I hope that this decision gets appealed.  The claimant’s statement was ambiguous at best and should not be considered the kind of competent evidence that is necessary to corroborate hearsay evidence, under Walker v. UCBR, 367 A.2d 366 (Pa. Cmwlth. 1976) at its progeny.

 

++++++

 

This summary also appears in the PLAN Legal Update, which can be accessed without a password.

 

 

 

custody - guardian ad litem - amendments to Rule 1915.11-2 - child's statements to GAL, etc.

Order

https://www.pacourts.us/assets/opinions/Supreme/out/Order%20-%20105416473210472653.pdf?cb=1

 

Committee adoption report

https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%201%20-%20105416473210472566.pdf?cb=1

 

Rule 1915.11-2

https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%202%20-%20105416473210472643.pdf?cb=1

 

From the adoption report –

On January 27, 2023, the Supreme Court of Pennsylvania amended Pa.R.Civ.P. 1915.11-2 and 1915.21, which address the appointment of a guardian ad litem (GAL) in a custody action, as authorized by 23 Pa.C.S. § 5334. Specifically, the amendments permit a GAL to include the subject child’s statement to the GAL in the GAL’s report, and to testify at trial about the statement as well, provided the requirements of the Pennsylvania Rule of Evidence 703 are satisfied. The Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, cmt. The statements contained in this Adoption Report are those of the Committee, not the Court. 

 

 

 

 

 

 

 

UC - willful misconduct - pushing co-worker - justifiable provocation

Reading School District v. UCBR – Cmwlth. Court. – January 20, 2023 – not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/1644CD19_1-20-23.pdf?cb=1

 

Held: Claimant was not justifiably provoked  in pushing a co-worker who had subjected her to abusive or personally offensive language.  

An employee’s actions are justifiably provoked only when an employee (1) reasonably believes he is threatened with physical harm; (2) is directly targeted by severe, intimidating, loud, and aggressive speech; or (3) is subjected to intentional provocation in order to fabricate justification to fire the employee. See Sun Oil Co. v. UCBR., 408 A.2d 1169, 1170-1171(Pa. Cmwlth. 1979); Wisniewski v. UCBR., 383 A.2d 254, 255 (Pa. Cmwlth. 1978). ; Kowal v. UCBR, 512 A.2d 812, 813-14 (Pa. Cmwlth. 1986). ; Jose Perez, 736 A.2d at 742. 

++++++++ 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

UC - willful misconduct - hearsay - claimant admission not specific

Chester Community Charter School v. UCBR – Cmwlth. Court – 10-3-2-22 – opinion not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/14CD21_10-3-22.pdf?cb=1

 

Held: General admission by claimant of wrongdoing (“whatever”) is not the equivalent of an admission to the specific wrongful conduct alleged by the employer.  

 

School alleged the claimant/teacher had called a student an “idiot” but offered no non-hearsay, first-hand evidence of that. Claimant did not attend the referee hearing, but school offered into evidence a letter from claimant in which he stated that he couldn’t attend the hearing because of his work schedule.  Claimant’s letter also stated” “All I was looking for [sic] unemployment funds, yes I am guilty of whatever [Employer] is claimingt. If you need to speak with me, I am available at [redacted.]”

 

The court said that 

Claimant’s admission to whatever is not an admission to calling a student an idiot. See Bailey v. Unemployment Comp. Bd. of Rev., 597 A.2d 241, 243 (Pa. Cmwlth. 1991) (“At no time did [the c]laimant testify as to the specific language which he directed at the terminal supervisor, but only acknowledged that he used abrasive language.” “As such, the Referee had no substantial evidence upon which to make a finding that [the c]laimant had directed abusive language towards the terminal supervisor[.]).” Accordingly, Claimant’s letter is not competent evidence to corroborate the Principal’s testimony. . . . Based on this Court’s review, the UCBR properly disregarded Employer’s hearsay evidence that was admitted without objection because it was not “corroborated by other competent evidence in the record.”4 Bell, 49 A.3d at 55. Without such evidence, Employer failed to meet its burden of proving Claimant committed willful misconduct. Accordingly, this Court is constrained to affirm the UCBR’s order. 

+++++++++

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

Constitutional amendments - procedures for proposed amendments - Pa. Dept. of State

 

Constitutional amendments – procedure for receiving, processing, advertising proposed amendments – Dept. of State

https://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/data/vol52/52-44/1652.html

UC - willful misconduct - employer proving case through claimant's own testimony

Woodring v. UCBR – Cmwlth. Court – 10-4-22 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/218CD19_10-4-22.pdf?cb=1

 

Held: Employer satisfied burden of proving claimant’s willful misconduct through the claimant’s own testimony, even though employer did not offer its own witnesses and appeared only through counsel.

 

An employer’s burden of proof may be carried, in whole or in part, by the claimant’s own testimony. Walker v. UCBR., 202 A.3d 896, 902-03 (Pa. Cmwlth. 2019) (accepting claimant’s testimony as corroboration of employer’s hearsay evidence); Moore v. UCBR., 578 A.2d 606, 608-09 (Pa. Cmwlth. 1990) (noting that “[e]ven where an employer fails to appear [and has] the burden of proving willful misconduct, benefits may be denied if the employee seeking benefits proves the employer’s case”). 

At the hearing in this matter, Claimant acknowledged the existence of the policy and that he was aware of it. . . .Claimant also admitted that he sent the email disparaging the newly hired HR Director and accusing Employer of not following its rules. . . .  Finally, the letter from Employer terminating Claimant’s employment, which advised Claimant that he was terminated for violating Employer’s email policy, was admitted into evidence without objection. See id. at 3.6 

Based on this substantial evidence, the Board properly found that Claimant had committed willful misconduct and, therefore, was ineligible for unemployment benefits under Section 402€ of the Law. 43 P.S. § 802€; Halloran, 188 A.3d at 597; see also Cambria Cnty. Transit Auth., 201 A.3d at 947. Thus, although Employer was not present, Claimant’s testimony, along with the documentary evidence submitted by the parties, carried Employer’s burden of establishing willful misconduct. See Walker, 202 A.3d at 902-03; Moore, 578 A.2d at 608-09. 

++++++++

 

Editor’s note:  This case is a good example of why a claimant should not appear at a UC hearing involving willful misconduct, except through counsel, where the employer does not have any witnesses and appear only through counsel.

 

UC - late appeal - language issues

Basnet v. UCBR – Cmwlth. Court – 10-19-22 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/1099CD21_10-19-22.pdf?cb=1

 

Held: Claimant did not sustain her burden of showing non-negligent circumstances for filing late appeal from referee decision, given that she had successfully navigated through the system from the time of the UCSC decision (with the help of a friend) in preparing for the referee hearing.

 

In Lewis v. UCBR 814 A.2d 829 (Pa. Cmwlth. 2003),  the claimant described the steps she took to ensure that she responded appropriately to the papers she received from the Department, and ultimately appealed four days late. Here, there was no testimony that Claimant took any steps to ensure that she timely understood the Referee’s decision, from which she ultimately appealed 43 days later. This Court cannot conclude that Claimant has met her burden because “the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one[,]” Harris, 247 A.3d at 1229, and where non-negligent circumstances cause the untimeliness of an appeal, the claimant must “show [the] non-negligent conduct beyond [her] control caused the delay[,]” Hessou, 942 A.2d at 198, and “the appeal must be filed within a short period of time after learning of the untimeliness.” Harris, 247 A.3d at 1229 (quoting Cook, 671 A.2d at 1131). “[Claimant’s] failure to take measures to ascertain the contents of the [Referee’s decision] resulted in her delaying [sic] in filing the appeal until [February 12, 2021]. As a result, it was untimely and properly dismissed by the [UCBR].” Guat Gnoh Ho v. UCBR., 525 A.2d 874, 875-76 (Pa. Cmwlth. 1987);11 see also Dull v. UCBR., 955 A.2d 1077, 1080 (Pa. Cmwlth. 2008) (“[The c]laimant was prevented by her own negligence from filing a timely appeal because she neglected to have someone read her mail. Cook does not compel us to reverse the UCBR’s decision in this case.”).

 

 

default judgment - striking - facial defect - 1) process served at non-existent address 2) faulty 10-day notice of intent to take default judgment

Grady v. Nelson – Pa. Super. – reported, precedential decision – October 21, 2022

https://www.pacourts.us/assets/opinions/Superior/out/J-A20028-22o%20-%20105315222201672548.pdf?cb=1

Petition to strike – defect on face of record -- A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record. [A] petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, a petition to strike is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief. A fatal defect on the face of the record denies the prothonotary the authority to enter judgment. When a prothonotary enters judgment without authority, that judgment is void ab initio. When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a [default] judgment, a court may only look at what was in the record when the judgment was entered. Penn National Mutual Casualty Insurance Company v. Phillips, 276 A.3d 268, 273-74 (Pa. Super. 2022) (citations and indentations omitted). Further, “[w]here a fatal defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter [a] default judgment and the default judgment will be considered void.” Keller v. Mey, 67 A.3d 1, 4 (Pa. Super. 2013). A litigant may seek to strike a void judgment at any time. Domus, Inc. v. Signature Building Systems of Pa, LLC, 252 A.3d 628, 640 (Pa. 2021). 

Process served at non-existent address -- In this case, a fatal defect existed on the face of the record at the time of entry of judgment as evidenced by the sheriff’s return of service: the use of a non-existent address, 1075 Price Street, for service of the complaint and judgment notices. One of the fundamental objectives of the Rules of Civil Procedure is to ensure that litigants receive proper notice of all proceedings.  The duty to make proper service begins with service of original process.  Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 221 A.2d 185, 187 (Pa. 1966) (rules relating to service of original process “must be strictly followed”). This duty continues throughout all stages of the case. Pennsylvania Rule of Civil Procedure 440 provides, “Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action.” Pa.R.Civ.P.  440(a)(1). When there is no attorney of record for the defendant,4 “service  shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile[.]” Id. If the plaintiff seeks a default judgment due to the defendant’s failure to answer the complaint, the plaintiff must “mail[] or deliver[]” a written notice of intent to enter judgment to the defendant at least ten days before filing a praecipe for entry of judgment. Pa.R.Civ.P. 237.1(a)(2). Further, when the plaintiff files the praecipe, he must certify that he served the defendant with the ten-day notice and attach a copy of the notice to the praecipe. Pa.R.Civ.P. 237.1(a)(2)-(4). Finally, the prothonotary must mail all orders and notices of judgment to the defendant. Pa.R.Civ.P. 236(a)(2).  Notices required under the Rules are ineffective if they are sent to an incorrect address. Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773 (Pa. Super. 1983) 

Invalid ten-day notice of intent to take default judgment -- The Rules of Civil Procedure prohibit the prothonotary from entering default judgment against a party “unless the praecipe for entry includes a certification that a written notice of intention filed with the praecipe was mailed or delivered . . . after the failure to plead to a complaint and at least ten days prior to the date of the filing of the praecipe to the party against whom judgment is to be entered and to the party’s attorney of record, if any.” Pa.R.Civ.P. 237.1(a)(2)(ii). Furthermore, this notice must “substantially” comply with the language set forth in Rule 237.5, which provides in relevant part, “You are in default because you have failed to enter a written appearance personally or by attorney and file in writing with the court your defenses or objections to the claims set forth against you.” Pa.R.Civ.P. 237.5. 

The ten-day notice sent in this case provided in relevant part, “You are in default because you have failed [to] take action required of you in this case.” We held in Penn National and Oswald that ten-day notices containing precisely this same language were defective because they did not substantially comply with Rule 237.5. The Penn National court reasoned: 

In Oswald, . . . the plaintiff initiated an action against the defendant by filing a complaint with proper service. After the defendant failed to respond to the complaint, the plaintiff sent the defendant notice of her intention to file a praecipe for default judgment. The default judgment notice provided in Oswald stated, in relevant part, “You are in default because you have failed to take action required of you in this case.” Id. at 796 (emphasis omitted). This Court found that this language was ‘deficient’ since the notice failed to state “specific reasons why the defendant is in default.” Id. (quoting City of Philadelphia v. David J. Lane Advertising, Inc., 33 A.3d 674, 679 (Pa. Cmwlth. 2011)). Thus, this Court concluded the notice of default judgment rendered the notice ‘defective on its face,’ as the document was ‘not “substantially” in the form required by Rule 237.5.’ Oswald, 80 A.3d at 796.