custody - relocation

http://www.pacourts.us/OpPosting/Superior/out/a05021_12.pdf (23 pp)

Superior Court - March 27, 2012

Denial of mother's relocation petition affirmed.

Mother's move held to be a "relocation, " i.e. “[a] change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).

Based on a thorough review of the record and the relocation factors contained in § 5337(h) that the trial court correctly determined that Mother’s proposed move significantly impairs Father’s ability to exercise his custodial rights. The trial court discerned that Child enjoys a very close relationship with Mother and Father, and that Father “has had regular and continued involvement co-parenting in different aspects of the minor child’s life that go beyond his periods of partial physical custody.” Competent record evidence reveals Father’s active involvement in Child’s sporting events and his desire to coach Child. The evidence also shows that Father is involved in school activities, including meetings with teachers and school authorities, and medical appointments.

Father, who is an equipment operator, is able to arrange his schedule in order to attend many of Child’s school and sports functions. The record confirms the trial court’s conclusion that Mother’s proposed relocation would break the continuity and frequency of Father’s involvement with Child and therefore threatens significant impairment of Father’s ability to exercise his
custodial rights. Mother’s offer of additional custodial time for Father would not ameliorate these adverse effects. See 23 Pa.C.S.A. § 5337(h)(3). Accordingly, Mother’s proposed move constitutes relocation within the meaning of § 5322(a).

In addition, the trial court determined and the evidence supports the finding that the advantages of the proposed move are minor, at best.

Therefore, after a careful review of the record certified on appeal, we conclude that the trial court did not err in finding that Mother failed to meet her burden of proving that relocation to Albion with Child, together with a related modification of the parties’ custody arrangement, would be in Child’s best interest. Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005).

Social Security Disability - Acquiescence Rulings - Index

http://www.gpo.gov/fdsys/pkg/FR-2012-03-27/html/2012-7182.htm

SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2012-0018]

Reinstate Index to Chapter III in 20 CFR

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

SUMMARY: At the request of the Office of the Federal Register, we are reinstating the finding aid ``Index to Chapter III'' in Title 20 of the Code of Federal Regulations (CFR). The finding aid contains a list of all Acquiescence Rulings published in the Federal Register from January 11, 1990 through April 1, 2012.

DATES: The notice is effective March 27, 2012. The Office of the Federal Register will include the Index in the April 2012 edition of Title 20, chapter III of the CFR.

SUPPLEMENTARY INFORMATION:
We are reinstating the ``Index to Chapter III'' as a finding aid in our chapter of Title 20 of the CFR. The Index lists the Acquiescence Rulings we published in the Federal Register from January 11, 1990, through April 1, 2012. The Index last appeared as a finding aid in the April 1, 2008 edition of our chapter of the CFR.

You may also find a listing of Acquiescence Rulings on our Web site at

http://mwww.socialsecurity.gov/OP_Home/rulings/rulfind1.html.

foreclosure - HAMP - no pre-emption of state law claims - 7th Cir.

Wigod v. Wells Fargo Ban - 7th Cir. - March 7, 2012

http://www.ca7.uscourts.gov/tmp/GQ0GJOWC.pdf

We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008.

In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).

The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. . . . .The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements. This appeal followed, and it presents two sets of issues.

The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure.

The second set of issues concerns whether these state-law claims are preempted or otherwise barred by federal law. We hold that they are not. HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable statelaw claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent concealment claim.

pleading - pro se, ifp claimant - frivolous complaint - dismissal

Parran v. Rozum - Cmwlth. Court - March 23, 2012 - unpublished memorandum decision



http://www.pacourts.us/OpPosting/Cwealth/out/2025CD11_3-23-12.pdf



The "allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys." Danyish v. Dep’t of Corrs., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004), aff’d, 584 Pa. 122, 881 A.2d 1263 (2005). However, the allegations still have to articulate a factual or legal basis to support his claims. Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth. 1998).

If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Bundy v. Beard, 924 A.2d 723, 726 n.7 (Pa. Cmwlth.) (citing Pa.R.C.P No. 240(j)), aff’d, 596 Pa. 103, 941 A.2d 646 (2007).

________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

sheriff's sale - setting aside - gross inadequacy of price

Bank of America v. Estate of Hood - Superior Court - March 22, 2012

http://www.pacourts.us/OpPosting/Superior/out/A38042_11.pdf

Rule 3132 of the Pennsylvania Rules of Civil Procedure provides as follows: Upon petition of any party in interest before delivery of the personal property or of the sheriff’s
deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper
under the circumstances. Pa.R.C.P. 3132.

Equitable considerations govern the trial court’s decision to set aside a sheriff’s sale. Bornman v. Gordon, 527 A.2d 109, 111 (Pa. Super. 1987), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988). This Court will not reverse the trial court’s decision absent an abuse of discretion. Id.

As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriff’s sale may be
refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence. Id.

An abuse of discretion occurs where, for example, the trial court misapplies the law. Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa. Super. 2011), appeal denied, ___ Pa. ___, 34 A.3d 833 (2011).

Gross inadequacy of the sale price: Where a sale is challenged based upon the adequacy of the price our courts have frequently said that mere inadequacy of price standing alone is not a
sufficient basis for setting aside a sheriff’s sale. However where a ‘gross inadequacy’ in the price is established courts have found proper grounds exist to set aside a sheriff’s sale. The courts have traditionally looked at each case on its own facts. It is for this reason that the term ‘grossly inadequate price’ has never been fixed by any court at any given amount or any percentage amount of the sale. Further, it is presumed that the price received at a duly advertised public sale is the highest and best obtainable. Blue Ball Nat'l Bank v. Balmer, 810 A.2d 164, 166-67 (Pa. Super. 2002) (citations omitted), appeal denied, 573 Pa. 662, 820 A.2d 702 (2003).

“The purpose of a sheriff’s sale in mortgage foreclosure proceedings is to realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor.” Provident Nat'l Bank, N.A. v. Song, 832 A.2d 1077, 1081 (Pa. Super. 2003), appeal denied, 577 Pa. 736, 848 A.2d 929 (2004). This Court has held that “the outstanding mortgage balance must be considered in determining the adequacy of the sale price.” Continental Bank v. Frank, 495 A.2d 565, 569 (Pa. Super. 1985).

Pennsylvania courts have concluded that a sheriff’s sale price is grossly inadequate where sale price was a small percentage – roughly ten percent or less – of the established market value.

standing

Municipal Authority v. PUC - Cmwlth. Court - March 22, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1581CD10_3-22-12.pdf

Standing - In order to have standing, a party "must have a direct, immediate, and substantial interest in the subject matter of the controversy." Waddington v. Pennsylvania Pub. Util. Comm’n, 670 A.2d 199, 202 (Pa. Cmwlth. 1995) (emphasis added), appeal denied, 544 Pa. 679, 678 A.2d 368 (1996). "The requirement that an interest be „direct‟ simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains." Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 195, 346 A.2d 269, 282 (1975) (plurality) (emphasis added). The requirement that an interest be "immediate" and not a remote consequence of the matter concerns "the nature of the causal connection between the action complained of and the injury to the person challenging it." Id. at 197, 346 A.2d at 283. The requirement of a "substantial" interest means that the interest must have substance—i.e., there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. Id. at 195, 346 A.2d at 282.

interpreters - oath - Rules of Evidence - Rule 604

566spct.attach.pdf

Rule 604. Interpreter

[s]

[An interpreter is subject to the provisions of Rule 702 (relating to qualification as an expert) and Rule 603 (relating to the administration of an oath or affirmation).]

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

COMMENT

[This rule adopts the substance of F.R.E. 604; the only change is the explicit reference to Pa.Rs.E. 702 and 603, rather than the general reference to “the provisions of these rules” in F.R.E. 604. The need for an interpreter whenever a witness’ natural mode of expression or the language of a document is not intelligible to the trier of fact is well settled. 3 Wigmore, Evidence § 911 (Chadbourn rev. 1970). Under Pa.R.E. 604, an interpreter is treated as an expert witness who must have the necessary skill to translate correctly and who must promise to do so by oath or affirmation.

Pa.R.E. 604 is consistent with those Pennsylvania statutes providing for the appointment of interpreters for the deaf. See 42 Pa.C.S. § 7103 (deaf party in a civil case); 2 Pa.C.S. § 505.1 (deaf party in hearing before Commonwealth agency); 42 Pa.C.S. § 8701 (deaf defendant in criminal case); see also Commonwealth v. Wallace, 433 Pa. Super. 518, 641 A.2d 321 (1994) (applying § 8701). Under each of these statutes, an interpreter must be “qualified and trained to translate for or communicate with deaf persons” and must “swear or affirm that he will make a true interpretation to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.”

There is little statutory authority for the appointment of interpreters, but the practice is well established. See Pa.R.Crim.P. 231(B) (authorizing presence of interpreter while investigating grand jury is in session if supervising judge determines necessary for presentation of evidence); 51 Pa.C.S. § 5507 (under regulations prescribed by governor, convening authority of military court may appoint interpreters). The decision whether to appoint an interpreter is within the discretion of the trial court. See Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976) (holding that it was an abuse of discretion to fail to appoint an interpreter for a criminal defendant who had difficulty in understanding and expressing himself in English).]

In 2006, legislation was enacted pertaining to the certification, appointment, and use of interpreters in judicial and administrative proceedings for persons having limited proficiency with the English language and persons who are deaf. See 42 Pa.C.S. §§ 4401-4438; 2 Pa.C.S. §§ 561-588. Pursuant to this legislation, the Administrative Office of the Pennsylvania Courts (“AOPC”) has implemented an interpreter program for judicial proceedings. See 204 Pa. Code §§ 221.101-.407. Information on the court interpreter program and a roster of court interpreters may be obtained from the AOPC web site at www.pacourts.us/t/aopc/courtinterpreterprog.

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; amended March 21, 2012, effective April 20, 2012 .

UC - EUC - overpayment - waiver - procedure

Rouse v. UCBR - Cmwlth. Court - March 15, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2524CD10_3-15-12.pdf

Proper method of requesting a waiver of a nonfault overpayment by is through the Dept. of Labor and Industry, not the UCBR.

Here, the Referee and UCBR decided that the claimant had been overpaid, but that the OP was not her fault and, thus, was nonfraud. The issue of whether the OP should be waived was not before the referee or board.

Section 4005(b) of the Emergency Unemployment Compensation Act of 2008 governs repayment of benefit overpayments provides that overpayments can be waived if "repayment would be contrary to equity and good conscience." 26 U.S.C. §3304 note.

federal courts - costs - electronic discovery

Race Tires America v. Hoosier Racing Tire Corp. - 3d Cir. - March 16, 2012

http://www.ca3.uscourts.gov/opinarch/112316p.pdf

At issue in this appeal is whether all charges imposed by electronic discovery vendors to assist in the collection, processing, and production of electronically stored information (―ESI‖) are taxable against a losing party as ―[f]ees for exemplification [or] the costs of making copies of any materials where the copies are necessarily obtained for use in the case.‖ 28 U.S.C. § 1920(4). We have not previously addressed this issue, and the courts that have considered this question have reached conflicting results. Compare, e.g., In re Aspartame Antitrust Litig., No. 2:06-CV-1732-LDD, 2011 WL 4793239, at *3 (E.D. Pa. Oct. 5, 2011) (―We . . . award costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, deduplication, data extraction and processing.‖), with Rawal v. United Air Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2-4 (N.D. Ill. Feb. 22, 2012) (refusing to award electronic processing costs as taxable).

In view of the significant role that electronic discovery plays in litigation today, involving the collection, processing, and production of huge volumes of data generated as a result of the information technology and communication revolutions, we believe it imperative to provide definitive guidance to the district courts in our Circuit on the question of the extent to which electronic discovery expenses are taxable.1

Footnote 1- In 2004, it was estimated that approximately 95% of all documents were created by electronic means. See, e.g., James M. Evangelista, Polishing the "Gold Standard" on the e-Discovery Cost-Shifting Analysis: Zubulake v. UBS Warburg, LLC, 9 J. Tech. L & Pol‘y 1, 2 (2004). More importantly, the ease with which ESI is created, distributed, duplicated, and stored has resulted in exponentially greater volumes of data that must be assembled, analyzed, and produced in litigation. See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 193 (2007) (―The shift of information storage to a digital realm has . . . caused an explosion in the amount of information that resides in any enterprise[,] profoundly affecting litigation.‖). It is estimated that in 2011, 1.8 zettabytes of data were created, the equivalent of 57.5 billion iPads, each with thirty-two gigabytes of storage. See Press Release, EMC Corp., World‘s Data More than Doubling Every Two Years—Driving Big Data Opportunity, New IT Roles (June 8, 2011), available at http://www.emc.com/about/news/press/2011/20110628-01.htm (citing John Gantz & David Reinsel, IDC, 2011 Digital Universe Study: Extracting Value from Chaos (2011)). The burden and expense thus far associated with discovery of ESI has resulted in changes to the Federal Rules of Civil Procedure and to the adoption of Federal Rule of Evidence 502, the rules governing discovery in a number of states, the adoption of proposed uniform rules by the National Conference of Commissioners on Uniform State Laws, and the promulgation of standards by the American Bar Association. See, e.g., Fed. R. Civ. P. 34(a) advisory committee‘s note (2006 amendments) (explaining changes to the Federal Rules of Civil Procedure due to the impact of the exponential growth in recoverable information); Fed. R. Evid. 502 advisory committee‘s note (explaining the adoption of Federal Rule of Evidence 502 to respond, in part, to the proliferation of electronic information); Dan H. Willoughby et al., Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789, 791 n.3 (2010) (discussing discovery rule changes in several states due to ESI); Nat‘l Conference of Comm‘rs on Unif. State Laws, Uniform Rules Relating to the Discovery of Electronically Stored Information (2007), available at http://www.law.upenn.edu/b11/archives/ulc/udoera/2007 final.pdf; American Bar Association Civil Discovery Standard § 29 cmt. (2004) (discussing the 2004 amendments to the American Bar Association Civil Discovery Standards to facilitate electronic discovery).

UC - willful misconduct - when negligence can be WM

Smith v. UCBR - March 1, 2012 - Cmwlth. Court - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1262CD11_3-1-12.pdf - unreported

Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week … [i]n which his unemployment is due to his discharge … from work for willful misconduct connected with his work …." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (emphasis added). Whether a claimant’s conduct rises to the level of willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997).

In Myers, our Supreme Court rejected the willful misconduct standard previously applied by this Court in Coulter. See Finch v. Unemployment Comp. Bd. of Review, 692 A.2d 619 (Pa. Cmwlth. 1997). Specifically, our Supreme Court held that an employee’s negligence only constitutes willful misconduct if "[i]t is of ‘such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.’" Myers, 533 Pa. at 378, 625 A.2d at 625 (quoting Coleman v. Unemployment Comp. Bd. of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)); Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 787 A.2d 284 (2001) (negligent conduct must be egregious or repetitive for it to warrant a finding that it is willful misconduct).

UC- EUC - overpayment - waiver - remand for lack of findings

Deklinski v. UCBR - February 23, 2012 - Cmwlth. Court



http://www.pacourts.us/OpPosting/Cwealth/out/1379CD11_2-23-12.pdf



Claimant here does not merely argue that the overpayment was not her fault. Claimant also argues that repayment would be against equity and good conscience because it would cause her financial hardship, a claim not made in Stelter v. UCBR, 14 A.3d 929 (Pa. Cmwlth. 2011), and she presented evidence to support this claim at the hearing. This court has recognized financial hardship as a basis for a waiver request. See, e.g., Grunwald v. UCBR, 829 A.2d 786, 788 (Pa. Cmwlth. 2003).



Although Claimant raised the financial hardship claim before the referee and in her appeal to the UCBR, the UCBR failed to address it. Accordingly, we vacate the UCBR’s order and remand for findings of fact and conclusions of law on the issue of whether repayment of the EUC overpayment would cause Claimant financial hardship.



Title IV of the Supplemental Appropriation Act of 2008, P.L. 110-252, 122 Stat. 2353, Section 4005(b), 26 U.S.C. §3304 Note. Section 4005(b) of the Act provides: In the case of individuals who have received amounts of [EUC] under this title to which they were not entitled, the State shall require such individuals to repay the amounts of such [EUC] to the State agency, except that the State agency may waive such repayment if it determines that – (1) the payment of such [EUC] was without fault on the part of any such individual; and (2) such repayment would be contrary to equity and good conscience. 26 U.S.C. §3304 Note.

contracts - interest - dilatory conduct

Truserve Corp., et al., Aplt v. Morgan's Tool & Supply, No. 10 WAP 2010
Opinion By: Todd, Debra
Posted By: W.D. Prothonotary
	Date Rendered: 2/21/2012
	Date Posted: 2/21/2012
	Opinion Type: Majority Opinion	J-76-2010mo.pdf
	Date Rendered: 2/21/2012
	Date Posted: 2/21/2012
	Opinion Type: Concurring and Dissenting Opinion	J-76-2010codo.pdf

We granted allowance of appeal in the instant case to consider whether a trial court may refuse to award contractual interest to the prevailing party in a contract dispute based on a finding of dilatory conduct by the prevailing party. We hold . . . that a trial court may not refuse to award interest to the prevailing party when the right to interest has been expressly reserved under the terms of the contract.

Where a party to a contract reserves the right to the payment of interest, that interest is considered conventional or contractual interest. In cases where the contract expressly provides for the payment of interest, or the payment of interest is implied by the nature of the promise, the interest is said to become an integral part of the debt itself, and, therefore, is recoverable as of right under the terms of the contract. . . . “If the parties have agreed on the payment of interest, it is payable not as damages but pursuant to a contract duty that is enforceable”)

Moreover, it is a well-established principle of contract law that, where the language of a contract is clear and unambiguous, a trial court is required to give effect to that language. . . .Indeed, this Court has cautioned that it is not the function of a court to rewrite agreements between parties, and a court must give effect to the clear terms to which the parties have agreed. . . . Thus, we have no hesitation in concluding that, where the terms of a contract provide for the payment of interest, a court’s award of such interest in favor of the prevailing party is not discretionary.

Perhaps recognizing that the award of contractual interest was not discretionary, the panel majority of the Superior Court, as noted above, affirmed the trial court’s decision on the basis that TruServ failed to take reasonable steps to mitigate its losses. A party who suffers a loss due to a breach of contract generally has a duty to make reasonable efforts to mitigate his losses. . . . . Moreover, the burden is on the breaching party to show how losses could have been avoided. . . . However, “an injured party . . . is not obligated to mitigate damages when both it and the liable party have an equal opportunity to reduce damages.”. . .

We recognize that, in situations involving a breach of contract for the payment of a sum certain, the breaching party could always reduce its obligation for losses incurred by the non-breaching party simply by paying the amount due and performing the contract. Nevertheless, we conclude that a party who breaches a contract containing an express promise to pay interest may not be permitted to reduce or escape entirely his contractual obligation by subsequently arguing that the nonbreaching party did not prosecute its breach of contract claim with dispatch.

UC - willful misconduct - absenteeism, illness - last absence

Illness may constitute a good cause justification for excessive absenteeism. McKeesport, 625 A.2d at 114 (citing Green v. UCBR, 433 A.2d 587 (Pa. Cmwlth. 1981)).

Even where a history of absenteeism is present, where the final absence which precipitated claimant’s discharge was due to illness, a claimant is entitled to compensation benefits because the last absence “was the result of illness rather than willful misconduct.” Grace v. UCBR, 412 A.2d 1128, 1130 (Pa. Cmwlth. 1980) (quoting Tritex Sportswear, Inc. v. UCBR, 315 A.2d 322 (Pa. Cmwlth. 1974)).

_____________

This discussion appears in an unreported case published today in which the Court affirmed the Board's grant of benefits

http://www.pacourts.us/OpPosting/Cwealth/out/863CD11_2-17-12.pdf

UC - educational employee - commencement of unemployment during holiday/vacation

Garnet Valley School District v. UCBR - February 13, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1318CD11_2-13-12.pdf

Claimant was a substitute paraprofessional who was called on an as-needed basis to replace or fill in for regular fulltime paraprofessionals. Claimant had a long-term substitute assignment that ended on January 6, 2011. There was no work available for Claimant from January 6, 2011, until the pay period ending March 25, 2011, when she worked for four hours. The school was closed for students and paraprofessionals on February 21, 2011, for President‟s Day. Claimant is not paid for holidays. Claimant filed an application for benefits for the claim week ending February 26, 2011.

The court upheld the UCBR decision that claimant was not disqualified by sec. 402.1 of the UC Law, which prohibits employees of educational institutions from receiving benefits during summer and holiday breaks, provided that they have a reasonable assurance of employment following the break. Employer argued that Claimant had reasonable assurance of continuing work in this case but the court did not reach that question.

Rather, it held that the issue of reasonable assurance because, by its own terms, section 402.1(3) does not apply to the week in question, which was not an "established and customary vacation period or holiday recess" -- as the UC Law specifies. Section 402.1(3) precludes benefits only for "any week which commences during an established and customary vacation period or holiday recess…. 43 P.S. §802.1(3). The week in question that included the President's Day holiday did not commence on that day so section 402.1(3) is facially inapplicable. North Penn School District v. UCBR, 662 A.2d 1161, 1163 (Pa. Cmwlth. 1995).

_________________

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - willful misconduct - rule violation

Here's a nice summary of the law on rule violation cases that appears in a recent unpublished decision

http://www.pacourts.us/OpPosting/Cwealth/out/1151CD11_2-10-12.pdf


“Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer‟s interest, a deliberate violation of the employer‟s work rules, or a disregard of the standards of behavior that the employer can rightfully expect from its employees.” Ductmate Industries, Inc. v. UCBR, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. UCBR, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)).

“If the employer alleges willful misconduct because the claimant violated a work rule, the employer must prove both the existence of the rule and its violation.” Caterpillar, 550 Pa. at 123, 703 A.2d at 456.

In determining whether the violation of the work rule constitutes willful misconduct, our Court must “examine whether „the rule or policy is reasonable in light of all the circumstances and if so, whether the employee [had] good cause to violate the rule or policy.‟” Id. (quoting Spirnak v. UCBR, 557 A.2d 451, 453 (Pa. Cmwlth. 1989)).

“Reasonableness is determined by whether the employer‟s application of the rule under the circumstances is fair, just and appropriate to pursue a legitimate interest.” Caterpillar at 123, 703 A.2d at 456-57.

UC - indpt. contractor - "customarily engaged" in indpt. business

Minelli v. UCBR - Cmwlth. Court (en banc) - February 9, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/440CD11_2-9-12.pdf

Pro se claimant held to be an employee and not an indpt. contractor, despite having signed an "independent contractor agreement" to perform a management evaluation of a hospice program.

Claimant worked for employer during a three (3) day "consulting arrangement." Although she was " free from control and direction in the performance of the contracted services," she "was not, and never has been, customarily engaged in an independently established trade or business; therefore, her activities do not meet the second element of Section 4(l)(2)(B) of the Law. Silver v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 1366 C.D. 2010) (December 29, 2011). The fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business. Id. at ___, slip op. at 10.

In holding that the second element of Section 4(l)(2)(B) has not been met under the facts of this case, the court pointed out that it was "in no way departing from the three part test described by our Supreme Court in Victor, 586 Pa. at 222-23, 892 A.2d at 797-98, to determine whether one is engaged in an "independently established trade, occupation, profession or business." Rather, we are simply recognizing that the Law requires an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed. This element was not discussed in Victor, or other cases which followed, because the persons found to be independent contractors in those cases were clearly engaged in ongoing business activities rather than an isolated or sporadic job(s).

Minelli v. UCBR - Cmwlth. Court (en banc) - February 9, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/440CD11_2-9-12.pdf

Pro se claimant held to be an employee and not an indpt. contractor, despite having signed an "independent contractor agreement" to perform a management evaluation of a hospice program.

Claimant worked for employer during a three (3) day "consulting arrangement." Although she was " free from control and direction in the performance of the contracted services," she "was not, and never has been, customarily engaged in an independently established trade or business; therefore, her activities do not meet the second element of Section 4(l)(2)(B) of the Law. Silver v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 1366 C.D. 2010) (December 29, 2011). The fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business. Id. at ___, slip op. at 10.

In holding that the second element of Section 4(l)(2)(B) has not been met under the facts of this case, the court pointed out that it was "in no way departing from the three part test described by our Supreme Court in Victor, 586 Pa. at 222-23, 892 A.2d at 797-98, to determine whether one is engaged in an "independently established trade, occupation, profession or business." Rather, we are simply recognizing that the Law requires an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed. This element was not discussed in Victor, or other cases which followed, because the persons found to be independent contractors in those cases were clearly engaged in ongoing business activities rather than an isolated or sporadic job(s).

UC - willful misconduct - incompetence, inexperience, inability

"[I]ncompetence, inexperience, or inability which may well justify discharge will not constitute willful misconduct so as to render an employee ineligible for benefits." Geslao v. Unemployment Comp. Bd. of Review, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987).

cited in http://www.pacourts.us/OpPosting/Cwealth/out/1742CD11_2-8-12.pdf - a recent, unpublished memorandum decision

UC - overpayment - fraud - state of mind

Marsh v. UCBR - Cmwlth. Court - February 7, 2012 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1155CD11_2-7-12.pdf

Claimant failed to report earnings received while getting EUC. The referee and Board found that she had been overpaid (undisputed) and that the OP was fraudulent.

The Court reversed, because neither the referee nor the Board found that Marsh "knowingly" made a "false statement or representation of a material fact" or "knowingly . . . failed . . . to disclose a material fact." Both of the underlying decisions fail to address Marsh’s state of mind when making her claim for benefits.

"To find fault, the Board must make some findings with regard to a claimant’s state of mind." Chishko v. UCBR, 934 A.2d 172, 177 (Pa. Cmwlth. 2007) [citing Kelly v. UCBR, 840 A.2d 469, 473 (Pa. Cmwlth. 2004)]. Absent such findings, the Board’s order establishing a fraud overpayment must be reversed, and the case remanded for assessment under Section 4005(b) of the EUC Act.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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UC - self-employment - businessman

Dunkelberger v. UCBR - Cmwlth. Court - February 7, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1199CD11_2-7-12.pdf

The Court upheld the Board's denial of benefits pursuant to Section 402(h) of the UC, which declares self-employed individuals ineligible for unemployment compensation. The issue before the Court was whether the Board erred by finding that Claimant was ineligible for benefits as an unemployed businessman under Starinieri v. UCBR, 447 Pa. 256, 289 A.2d 726 (1972). The court affirmed.

Claimant was employed by Window World as vice-president of the corporation. He was a founder of the corporation, one-third owner of Window World, and served as one of the corporation‟s directors. In May of 2009, the corporate president, also a one-third owner, purchased a one-third interest and thereby became the majority shareholder, holding two-thirds of the. At that point, Claimant and the president were Window World‟s only directors. In August 2010, however, the president elected his wife to the board of directors, then he and his wife then used their majority vote to immediately terminate Claimant‟s employment as vice-president.

At its most fundamental level, the UC Law is purposed by the General Assembly of this Commonwealth "for the benefit of persons unemployed through no fault of their own." The Law was not intended, however, to supplement the income of individuals who become unemployed businessmen. Starinieri. Therefore, the General Assembly determined, as a matter of policy, to declare self-employed individuals ineligible for unemployment compensation. See Section 402(h) of the Law. Thus, the Law effectively embraces the notion that a self-employed individual is responsible for his own employment, and leaves him to shoulder his own burden for any loss.

The Board‟s findings here, based on information supplied by Claimant, show that until his termination, Claimant exercised substantial policymaking control over Window World. Accordingly, Claimant falls squarely within the definition that Stanieri and other cases have set out of a businessman and not an employee.

Admittedly, in enacting Section 402.4, the General Assembly set a standard for a limited class of business persons under which their eligibility for benefits is determined, not by their status, but by their ability to control their loss of employment. Further, it is undeniable that this paradigm is consistent with the overall purpose of the law to provide for persons who involuntarily lose their jobs through no fault of their own and that Starinieri and its progeny stand in contrast to this paradigm. Under Starinieri, business persons like Claimant who, by virtue of their minority shareholder status, are unable to prevent their termination of employment, even where they are devoid of fault, are still ineligible for benefits. Moreover, their loss of employment in most of these cases is not due to a failed business venture, but simply to an ouster by those who have majority control of the corporation. Nonetheless, the Starinieri doctrine has been the law for several decades and neither our Supreme Court nor the legislature has seen fit to change it. We are bound to follow these precedents. Accordingly, the Board‟s order is affirmed.

UC - financial elig. - no earnings/employment in Pa. in base year

Pagliei v. UCBR - Cmwlth. Court - February 3, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/519CD11_2-3-12.pdf

Pro se claimant held not financially eligible for UC benefits under 43 P.S. §753(l)(2), because her employment and earnings during her base year were in Delaware, not Pennsylvania.