tax sale - reasonable efforts to locate taxpayer

777 L.L.P. v. Luzerne County TCB v. V. Mannino (Pa. Cmwlth March 30, 2015). 

http://www.pacourts.us/courts/commonwealth-court/court-opinions/Default.aspx

 

Judicial tax sale vacated for failure to serve the taxpayer and failure to use “reasonable efforts” to locate the taxpayer, where the tax claim bureau did not conduct a search of current telephone directories, searched property records only by property ID number, not the taxpayer’s name, and failed to thoroughly review its own file to ascertain the taxpayer’s current address. 

Tax sales - right to installment agreement - payment of at least 25% of taxes due

 In Re: Sale by TCB of Bedford County of Tax Parcel G.14-0.00-007 - Appeal of Vignola (Pa. Cmwlth. March 30, 2015). 

http://www.pacourts.us/assets/opinions/Commonwealth/out/718CD14_3-30-15.pdf?cb=1

Where an owner has paid at least 25% of the taxes due, the tax claim bureau has an affirmative duty to inform the owner of the option to enter into an installment agreement, and the failure to do so will invalidate a subsequent tax sale. [citations omitted]

UC - voluntary quit - firm offer of new job

Geraci v. UCBR – Cmwlth. Court – March 20, 2015 – unreported memorandum opinion - can be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1531CD14_3-20-15.pdf?cb=1

 

Claimant who quit job to train for potential job held not eligible, since he had no firm offer of employment.

 

The court has consistently held that a firm offer of employment and its acceptance constitutes a necessitous and compelling cause for quitting. Solar Innovations, 38 A.3d at 1056. “‘The offer of employment . . . must be definite’ . . . and ‘the claimant must act prudently with regard to his employer.’” Id. (citations omitted). However, we have also “consistently held that the mere possibility of obtaining another job, without a firm offer of employment, is insufficient to establish that employment was terminated for good cause.” Fernacz v. UCBR, 545 A.2d 995, 997 (Pa. Cmwlth. 1988).

 

As a matter of law, acceptance of a job that is contingent upon successful completion of a training program for only the prospect of better employment, as is the case here, does not constitute the requisite necessitous and compelling cause to qualify for UC benefits under the Law. See Fernacz, 545 A.2d at 997. “[A]lthough ‘the claimant may have personal, economic, or career reasons for making h[is] decision to leave the employer . . . that does not constitute a necessitous and compelling cause for voluntarily quitting.’” Solar Innovations, 38 A.3d at 1057 (citation omitted).

 

________________

 

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

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

UC - self-employment not established

Isett v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished  memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1026CD14_3-18-15.pdf?cb=1

 

Court held that the claimant was not self-employe and thus continued to be eligible for UC benefits.

 

Claimant got benefits after being laid off from work when he returned after a disability leave.   Both before and after his leave and layoff, claimant has done yard work for a neighboring child care center.   Claimant was initially granted benefits, but the employer appealed and the referee and UCBR held that his occasional work for the child care center made him self-employed, ineligible for benefits, and subject to a non-fault overpayment.  The Court reversed.

 

Burden of proof on DOLI

Where the Bureau initiates proceedings that result in a suspension of benefits based on self-employment, as is the case herein, it is the Bureau, and not the putative employer, who carries the burden of proof. Silver v. UCBR, 34 A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). In such proceedings, where the claimant is already receiving unemployment compensation benefits, the question is not whether the work at issue would entitle the claimant to benefits, but whether the work at issue disqualifies the claimant from further receipt of benefits he is already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth. 2012) (emphasis added).

 

Self-employment

Pursuant to Section 402(h), a claimant is ineligible for unemployment benefits in any week “[i]n which he is engaged in self-employment.” While the

term “self-employment” is not defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines “employment,” in pertinent part, as:

 

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

 

43 P.S. § 753(l)(2)(B). This court has consistently held that before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).

 

Claimant not engaged in self-employment

It is clear that Claimant was not customarily engaged in an independently established trade, occupation or business.  He had cut the child care center law for years as a neighbor and that he approached them to cut the lawn in order to rehabilitate his knee. Claimant testified: He “was kind of feeling guilty to even get paid for [his services] but [he] was trying to get a little bit of therapy for medical problem [knee .  He thought by performing the services, this is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas or supplies, and used tools he acquired over the years from being in the construction business when needed. Claimant testified that he never looked for other mowing or landscaping jobs, never invested any money, did not advertise or put out fliers, and did not try to solicit customers by word-of-mouth. He testified: “My intention wasn’t to go into business, my intention was to get [himself] a little bit in better physical shape and help out a little bit.”  Claimant testified that he was available for full-time employment and continued to look for work while he performed services for Tiny Treasures and that the fact that he made an inquiry to obtain a quote for liability insurance, in and of itself, is insufficient as a matter of law to support the finding that he was customarily engaged in an independent trade, occupation, profession or business.   The Court agreed.

 

The evidence shows that Claimant did not advertise in any way, did not seek other customers, did not invest any money nor purchase any equipment or supplies. Claimant dutifully reported the sums he receive to the Bureau, consistent with the Bureau’s own instructions in the regulations. Moreover, even where an activity which generates a limited amount of income was not undertaken while the claimant was still employed, such activity does not automatically make it disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). Claimant testified that the money he received for mowing was not enough to either support himself or cover the cost of insurance, and that it was never his intention to go into business for himself and that he continued to look for full time employment.

 

The evidence establishes only that Claimant’s work for the child care agency was on the side to make extra money and not that of an individual customarily engaged in a trade, occupation, profession or business. The Court has long recognized the ability of an individual to accept occasional assignments of work. Thus, “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” that would disqualify him from receiving unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

 

________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

UC - willful misconduct - burden of proof - claimant testimony - duty of referee

Wagner v. UCBR – Cmwlth.  Court – March 11, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/427CD14_3-11-15.pdf?cb=1

 

This claimant was hoisted by his own petard.  

 

The employer did not appear at the hearing, at which the issue was willful misconduct.  Claimant did appear and testified.  Some of the testimony was elicited by the referee’s questions to claimant.

 

The court rejected Claimant’s argument that the Referee should have adjourned the hearing when Employer failed to appear and granted him unemployment compensation. Claimant’s argument misconstrues both the assignment of the burden of proof and the role of the Referee under the Law.  A referee is charged with informing the parties of their rights, the procedure to be followed, and with developing an adequate record, which includes clearly establishing the allegations made and the facts at issue to insure that compensation is paid in instances where a claimant is eligible and that it is not paid where a claimant is ineligible under the Law. Bennett v. UCBR, 445 A.2d 258, 259 (Pa. 1982); 1982); Hackler v. UCBR, 24 A.3d 1112, 1116 (Pa. Cmwth. 2011); Robinson v. UCBR, 431 A.2d 378, 379 (Pa. Cmwlth. 1981); see also 34 Pa. Code § 101.21.

 

The referee is not required to “advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.” Brennan v. UCBR, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (internal citations omitted).   In unemployment compensation matters, “the assignment of the burden of proof to one or the other party can only be understood as an indication of the quantum of evidence required to sustain a result in a party’s favor. The question of the sufficiency of the evidence must be examined against the complete record. The effect of the claimant’s testimony remains the same whether presented before or after an employer’s.” Vann v. UCBR, 494 A.2d at 1081, 1085 (Pa. 1985). As this Court and our Supreme Court have repeatedly made clear, the referee is not there to act as an advocate for the claimant and “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Id. at 1086 (quoting Groch v. UCBR, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).

 

A claimant’s admissions are sufficient to carry an employer’s burden. Sargent v. UCBR, 630 A.2d 534, 537 (Pa. Cmwlth. 1993) (“Employer in this case did not present any evidence. Claimant, however, chose to testify and [our] Supreme Court has made it clear that in such a situation a claimant’s own testimony can be a basis to deny benefits.”); Robinson, 431 A.2d at 379 (“[claimant] himself admitted that he neither reported to work as instructed on October 22 nor notified his employer of the reason for his absence. It is, therefore readily apparent that claimant is guilty of willful misconduct and that his employer has met its burden in that regard.”); Rodgers v. UCBR, 397 A.2d 1286, 1288 (Pa. Cmwlth. 1979) (holding that the claimant’s own testimony carried the employer’s burden of proof).

 

The evidence supporting the Board’s findings of fact consists of documents submitted into the record by both Claimant and Employer, and testimony offered by Claimant at the continued hearing and at the remand hearing. Contrary to Claimant’s contention, Employer was not required to offer testimony in order to carry its burden under the Law. Claimant had an opportunity to object to the documentary evidence submitted by Employer and declined to do so.

 

_________________________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

 

 

 

 

 

UC - 43 P.S. 829 - no collateral estoppel use of UC decision in later/separate case

Mathis v. Christian Plumbing and Heating – ED Pa. – March 21, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0183P.pdf

 

Plaintiff was not collaterally estopped by an adverse result in a UC case, Mathis v. UCBR, 64 A.3d 293 (Pa. Cmwlth. 2013), from suing former employer under Title VII of the Civil Rights Act and the Pa. Human Relations Act for improperly terminating his employment because of Plaintiff’s covering his work i.d. badge, which included language that the company is a “ministry” and run “in a way most pleasing to the lord...”

 

 The court held that the clear language of 43 P.S. sec. 829 precluded the application of collateral estoppel.  Sec. 829 states that “[n]o finding of fact or law, judgment, conclusion or final order made with respect to a claim for unemployment compensation under this act may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.”

 

____________________

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/, where the opinions of all state appellate courts can be found.

 

 

UC - willful misconduct - use of work phone/computer for personal business

Oyetayo v. UCBR – March 4, 2015 – Cmwlth. Court

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/393CD14_3-4-15.pdf?cb=1

 

Claimant disqualified for willful misconduct and violation of employer rule against person use of work telephone and computer (email), after having receiving two prior warnings about zero tolerance policy.

 

De minimis rule not applicable after warning about strict enforcement.

While an employee at Employer would normally be permitted to engage in the occasional use of his work computer for personal email, Claimant was not a normal employee; instead the Board found that Claimant had been issued written warnings that directed him not to engage in any unauthorized use of Employer’s resources for personal reasons. Claimant’s argument that his personal email use fell within the de minimis exception therefore fails because Employer had advised Claimant that his prior personal use of Employer’s resources had exceeded what was allowed and any future use would be seen as a violation of Employer’s rules.

 

Doing personal things at work

There is no question that Claimant’s conduct was not merely negligent but rather of an intentional and deliberate nature. Grieb v. UCBR, 827 A.2d 422, 426 (Pa. 2003).   Moreover, this Court has on numerous occasions determined that a claimant’s use of work time to engage in personal affairs without authorization was willful misconduct even where not prohibited by a specific work rule because it was contrary to reasonable standards of behavior that an employer can expect from its employees. See, e.g., Pettyjohn v. UCBR, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (holding that access of internet for personal reasons  during working hours after being advised not to constituted willful misconduct); Baldauf v. Unemployment Compensation Board of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004) (holding that the claimant engaged in willful misconduct by accessing personal email and non-work related websites while being paid to work); Wetzel v. UCBR, 370 A.2d 415, 417 (Pa. Cmwlth. 1977) (holding that the claimant, whose employment was terminated for crocheting at work despite several warnings not to do so, had engaged in willful misconduct). Furthermore, “[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in...cases where...the employee has been warned and/or reprimanded for prior similar conduct.” Ellis v. UCBR, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) ....Accordingly, because Claimant knowingly violated Employer’s work rule and because Claimant has not put forward any argument that he had good cause for violating the work rule, we hold that the Board did not err in concluding that Claimant was ineligible for benefits due to willful misconduct.

 

No duty to provide copy of record absent request by Claimant

Claimant cites no authority which imposes an affirmative duty on the Board to send a claimant a copy of the record at the same time as it is sent to this Court.  Instead, the applicable Board regulations provide that “[i]n the event of an appeal from the decision of the Board to the Commonwealth Court, a party may request a transcribed copy of the record of the testimony, and it shall be furnished without charge.” 34 Pa. Code § 101.71 (emphasis added). The Board’s regulations further provide that: When an interested party or his representative requests information from the file of the Board in order to present and maintain the issues...in an appeal to the Court, such information (including the hearing transcript, where the record has been transcribed) shall be made available at a reasonable time to the party and his representative, without charge,...for examination, copying and making notations therefrom.

34 Pa. Code § 101.54(b) (emphasis added). As there is no allegation that either Claimant or his attorney requested a copy of the record from the Board and the Board denied such a request, the Board did not act inappropriately or deny Claimant his due process rights by failing to send Claimant a copy of the certified record.

_____________________

 

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

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

tax sale - disputed facts - right to hearing - Battisti v. Tax Claim Bureau

Estate of Filchner – Cmwlth. Court – March 9, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2097CD13_3-9-15.pdf?cb=1

 

Following its decision in Battisti v. Tax Claim Bureau, 76 A.3d 111 (Pa. Cmwlth. 2013), the court held that where a petition to set aside a tax sale raises disputed issues of fact, the court must hold a hearing and take evidence, rather than summarily resolving the facts on its own.

 

In granting a party’s motion for judgment on the pleadings, the trial court denied Taxpayer’s objections without an evidentiary hearing, and thereby denied Taxpayer due process. Battisti, 76 A.3d at 116.  Due process under the United States and Pennsylvania Constitutions must be satisfied whenever the government subjects a citizen’s property to forfeiture for nonpayment of taxes. Geier v. Tax Claim Bureau of Schuylkill County, 588 A.2d 480 (Pa. 1991). Once Taxpayer presents a prima facie challenge to the tax sale, the burden shifts to the Tax Claim Bureau to prove strict compliance with the notice provisions of the RETSL. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289-90 (Pa. Cmwlth. 1996). Where there is a factual dispute, a taxpayer is entitled to an evidentiary hearing and remanded the case to the trial court.

 

___________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that event, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

Therapeutic support services - medical necessity standard

C.M. v. DPW – Cmwlth. Court – March 11, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2123CD13_3-11-15.pdf?cb=1

 

TSS services are medical services administered by the Department, not educational services subject to administration by the State Board of Education or the Department of Education and governed by regulations promulgated pursuant to the IDEA. Therefore, the provision of TSS services is subject to the medical necessity standard established in relation to the MAP program rather than the IDEA’s least restrictive environment standard.

 

__________________

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

UC - willful misconduct - ER-claimant agreement not an admission of wrongful conduct

Bennett v. UCBR – Cmwlth. Court – March 4, 2015 – memorandum opinion – not reported

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/710CD14_3-4-15.pdf?cb=1

 

Private agreement between employer and claimant to change job termination to 12-day suspension is not an admission of the conduct that resulted in the suspension.  It is merely a settlement between the parties.  Without the agreement being admitted into evidence and without testimony regarding the content of the agreement, the UCBR cannot assume that claimant admitted violating the employer’s rules.   There was no testimony or other evidence in the record to support a finding that the agreement constituted an admission of employer rules.

________________

 

If this case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

tax sale - partnership - notice to each partner/owner

Dwyer v. Luzerne Co. Tax Claim Bureau – Cmwlth.Court – February 17, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/680CD14_2-17-15.pdf?cb=1

 

Commonwealth Court affirmed lower court decision setting aside tax sale of partnership-owned property where Partner/Owner B signed for certified mail notice sent to Partner/Owner A – i.e., no notice delivered separately to non-signing partner A – and no evidence in the record of authority of one to sign for certified mail for the other.

 

The statutory notice provision of  the Law provides that the Bureau shall give notice of the sale “[a]t least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.” 72 P.S. §5860.602(e)(1).

 

 “Restricted delivery” is mail “delivered only to the addressee or the person he specifically authorizes in writing to receive his restricted delivery mail.” . . . Here, the receipt shows that the certified mail addressed to Owner A was signed for by Owner B. “Even when a return receipt is signed, the signature must belong to someone authorized by the owner to accept certified mail.” . . . .There is nothing in the record evidencing Owner B’s authority to sign for certified mail addressed to Owner A.

 

Because Owner A did not sign for the certified mail addressed to him, in accordance with section 607.1(a) of the Law, the Bureau was required to further investigate his whereabouts. Specifically, section 607.1(a) of the Law requires reasonable notification efforts when “mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee . . . .” 72 P.S. §5860.607a(a).

 

Here, the tax claim bureau conceded that although Owner A did not sign for the certified mail addressed to him, the Bureau did not make any effort to discover his whereabouts and notify him. Thus, the trial court properly concluded that the Bureau failed to comply with the Law’s notice provision.

 

_____________________

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

 

 

UC - willful misconduct - offensive language - de minimus conduct - provocation

Campbell v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/369CD14_2-17-15.pdf?cb=1

 

One-time us of the word “bitch” toward a co-worker, in response to that employee’s threatening outburst, was de minimus and not disqualifying willful misconduct, even though use of abusive language violated ER rule.

 

Arnold v. UCBR, 703 A.2d 582 (Pa. Cmwlth. 1997),  “offensive language directed by an employee to an employer, if sufficiently provoked or de minimis, will not constitute willful misconduct.” Id. at 584.   Horace W. Longacre, Inc. v. UCBR, 316 A.2d 110 (Pa. Cmwlth. 1974), and Kowal v. UCBR, 512 A.2d 812 (Pa. Cmwlth. 1986).  Perez v. UCBR, 736 A.2d 737 (Pa. Cmwlth. 1999)

 

 
 

________________

  

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

UC - willful misconduct - fighting

Gallo v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/655CD14_2-17-15.pdf?cb=1

 

Physical altercation at work not willful misconduct where

            * claimant acted in self-defense, after being pushed

            * claimant was furthering ER’s interests by giving foreman’s instructions to co-worker

            * incident lasted a matter of seconds

            * claimant’s actions were reasonable under the circumstances

 

The court noted that the UCBR failed to analyze the reasonableness of claimant’s actions, and that the facts found by the UCBR did not support findings that claimant escalated the fight.

 

“[F]ighting is considered inimical to the best interests of the employer and, as such, willful misconduct.” Rivera v. UCBR, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). However, “[w]here an employee’s conduct is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it is not a willful disregard of standards of behavior that an employer has a right to expect.” Miller v. UCBR, 83 A.3d 484, 488 (Pa. Cmwlth. 2014). An employee’s actions may be reasonable under the circumstances where that employee acts in self-defense in response to another employee’s physical aggression against him. See Mula v. UCBR, 407 A.2d 477, 477 (Pa. Cmwlth. 1979) (recognizing that an employee has a right to defend himself).  

 

Whether an employee’s actions are reasonable depends on the circumstances; our prior cases suggest such circumstances include the degree and duration of the employee’s actions. See Miller, 83 A.3d at 488 (holding that the claimant’s conduct was justified and reasonable where the entire physical altercation consisted of the other co-worker shoving the claimant and the claimant shoving the co-worker back); Peeples v. UCBR, 522 A.2d 680, 682-83 (Pa. Cmwlth. 1987) (holding that the claimant’s striking back at the employee who struck him was in self-defense, reasonable, and justified). Here, the circumstances suggest that Claimant’s actions were in self-defense and reasonable under the circumstances.


 

social security disability - a) lay testimony; b) hypothetical questions; c) conflict between VE testimony and DOTecurity disability

Zirnsak v. Colvin – 3d Cir. – December 9, 2014

 

http://www2.ca3.uscourts.gov/opinarch/141168p.pdf

 

The Third Circuit affirmed the denial of benefits.  The opinion was published on motion of the defendant.

 

Lay testimony properly discounted

An ALJ can consider evidence from non-medical sources to determine the severity of a claimant’s impairments and how those impairments impact the claimant’s ability to work. 20 C.F.R. § 404.1513(d) (2014). Non-medical sources include “spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy.” Id. § 404.1513(d)(4). The Commissioner has issued a policy interpretation ruling “to clarify how [to] consider opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006).

 

The ALJ’s reasons for rejecting the evidence are supported by substantial evidence, as the evidence did not relate to the narrow question presented to the ALJ: whether Zirnsak was disabled at any point between May 11, 2006 and December 31, 2007. We therefore defer to the ALJ’s credibility assessments. Diaz, 577 F.3d at 506.

 

The two Social Security Rulings relied on by Zirnsak are not designed to provide guidance for how to evaluate lay opinion testimony. The purpose of the first ruling cited, SSR 83-20, is to “describe the relevant evidence to be considered when establishing the onset date of disability,” not whether disability exists. SSR 83-20, 1983 WL 31249, at *1 (1983)

 

The second ruling cited by Zirnsak, SSR 96-7p, lists its purpose as “to clarify when the evaluation of symptoms, including pain, . . . requires a finding about the credibility of an individual [claimant’s] statements.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). Therefore, SSR 96-7p does not address lay witnesses’ accounts of the claimant’s symptoms, but rather the claimant’s description of her own pain. Id. Accordingly, the claimant’s arguments based upon these rulings and certain cases interpreting those rulings are inapposite.

 

Hypothetical question to VE not deficient

“Testimony of vocational experts in disability determination proceedings typically includes, and often centers upon, one or more hypothetical questions posed by the ALJ to the vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Usually, the ALJ will ask whether a hypothetical claimant with the same physical and mental impairments as the claimant can perform certain jobs that exist in the national economy. Id. The hypothetical must “accurately portray” any impairments of the claimant. Rutherford, 399 F.3d at 554. This Court has held that to accurately portray a claimant’s impairments, the ALJ must include all “credibly established limitations” in the hypothetical. Id. (citing Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999)).

 

This Circuit does “not require an ALJ to submit to the [VE] every impairment alleged by a claimant.” Rutherford, 399 F.3d at 554. Rather, the ALJ is only required to submit credibly established limitations. Id. Where, as here, a limitation is supported by some medical evidence but controverted by other evidence in the record, it is within the ALJ’s discretion whether to submit the limitation to the VE. Id. While the record in this case is not conclusive as to whether Zirnsak had short-term memory or task problem limitations, there is substantial evidence to support a finding that she did not—namely, her lack of demonstrated problems with activities of daily living and her ability to drive. The ALJ therefore appropriately exercised his discretion when determining which limitations to submit to the VE. In making credibility determinations like this one, this Court will “not substitute our own judgment for that of the fact finder.” Id. at 552. Accordingly, we find that the hypothetical question posed to the VE was not deficient for failure to fully reflect Zirnsak’s limitations.

 

Conflict between VE testimony and DOT

As a general rule, occupational evidence provided by a VE should be consistent with the occupational evidence presented in the DOT. Id. at *2. To ensure consistency, courts have imposed an obligation on ALJs to “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the [DOT].” Id. at *1; Rutherford, 399 F.3d at 556. Specifically, an ALJ is required to (1) ask, on the record, whether the VE’s testimony is consistent with the DOT, (2) “elicit a reasonable explanation” where an inconsistency does appear, and (3) explain in its decision “how the conflict was resolved.” Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002). An ALJ’s failure to comply with these requirements may warrant remand in a particular case. Rutherford, 399 F.3d at 557. However, this Circuit has emphasized that the presence of inconsistencies does not mandate remand, so long as “substantial evidence exists in other portions of the record that can form an appropriate basis to support the result.” Id. (citing Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir. 2004)).

 

There is a split of authority as to whether an inherent conflict exists between a job requiring level 3 reasoning and a finding that a claimant should be limited to simple, routine tasks and unskilled work.   E.g., Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009).  See,  Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011) VERSUS  Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011).

 

The review of the aforementioned cases demonstrates that there is no bright-line rule stating whether there is a per se conflict between a job that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine work. Without controlling precedent on this issue, this Court finds that the decisions in the Terry and Simpson cases are most applicable to the facts of Zirnsak’s case - any error stemming from an ALJ’s failure to ask about a conflict was harmless where the record established that the claimant in question could perform a level 3 reasoning job, despite a limitation to simple work.

 

Second, as in Terry and Simpson, Zirnsak’s counsel did not identify any inconsistencies between the VE’s testimony and the DOT at her hearing. (Tr. at 59). In fact, Zirnsak’s counsel did not question the VE regarding inconsistencies at all.  Finally, as in Simpson, the occupations listed by the VE were only “a couple examples” of jobs available to Zirnsak. ....Accordingly, the combination of these factors compels our finding that “any conflict [was] not so obvious that the ALJ should have pursued the question.”

 

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UC - appeal - time - no postmark

Quinn v. UCBR – Cmwlth. Court – January 23, 2015 (2-1)

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1238CD14_1-23-15.pdf?cb=1

 

Appeal dismissed as untimely where the

 

            - envelope was not postmarked

 

            - appeal was received at UCBR one day beyond appeal deadline.

 

Relevant statute is 43 PS sec.  821(e), which makes a determination final, unless an appeal is filed “within fifteen calendar days after” service of the notice of determination.   The relevant regulation, 34 Pa. Code 101.82(b)(1), makes the appeal date the date of receipt at the Board, if the appeal is filed by US Mail and the envelope does not bear any postmark.

 

The court said that it “appreciate[d] the logic of the Claimant’s argument”* that the appeal must have been mailed on or before the 15^th day, since it was received by the UCBR on the 16^th day, but that it had to follow the regulation, citing cases.   
 

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* Cold comfort.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

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UC - voluntary quit - loss of commuting benefit

Morgan v. UCBR – Cmwlth. Court (en banc, 5-2) – January 14, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1896CD13_1-14-15.pdf?cb=1

 

Claimant quit his job when his employer unilaterally and without warning took away his employer-provided transportation, which had a value of about $90 day, which was about ½ of claimant’s earnings.  

 

The Court affirmed the UCBR’s denial of benefits, holding that the claimant had not explored alternatives before quitting.  The Board also found that the claimant “could commute with the employer’s director,” as he had done when he had first started working.  This finding was based on testimony of the employer’s manager that the director “can give you a ride home, you can, you can figure out something else, but you’re just not going to do it on the company dime anymore.”  The Court found that “the Board could logically and reasonably infer that Manager’s statement that Claimant could get a ride home with Director was a suggestion to commute with Director.”    The court also upheld the Board finding that Claimant had not explored alternative solutions to the transportation problem and the loss of 50% of his earnings before quitting.

 

Dissent

The dissent (Leavitt and Pelligrini) thought that the employer statement just concerned getting a ride home that single day, when claimant was at a work and was “deprived on the means to return home.  After that, Claimant had to ‘figure out something else’ without any financial support from Employer.”  A substantial reduction in pay constitutes a necessitous and compelling reason to leave employment and, thus, does not affect eligibility for unemployment compensation. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa. Cmwlth. 1995). “[W]here an employee benefit has special significance and intrinsic value to a claimant, an employer’s unilateral alteration of that benefit and corresponding reduction in compensation gives a claimant necessitous and compelling cause for terminating employment.” Id. Because there is “no talismanic percentage” for determining a substantial reduction, each case turns on its own circumstances. Id.

 

In Steinberg Vision Associates v. Unemployment Compensation Board of Review, 624 A.2d 237, 238-39 (Pa. Cmwlth. 1993), six years after the claimant was hired, the employer notified her that it would no longer reimburse her health insurance premium of $235.16 per month. The loss of this reimbursement effected “a 14.2% reduction in earned compensation.” Id. at 240. We held that “the [e]mployer’s unilateral alteration of that benefit and corresponding reduction in compensation” constituted a necessitous and compelling reason to quit. Id. See also Chavez (Token) v. Unemployment Compensation Board of Review, 738 A.2d 77, 82 (Pa. Cmwlth. 1999); A-Positive, 654 A.2d at 302-03.

 

In this case, from the time of his initial hire in 2010 and throughout his employment Employer assumed the cost of Claimant’s commute. Claimant’s evidence established that the value of the Employer-provided vehicle, and reimbursement of fuel and tolls was approximately $90 per day.  Employer did not contest this figure. Claimant established that his gross salary at the time of his separation was $176 per eight-hour day.  On Claimant’s claimant’s last day of work, the employer unilaterally eliminated his commuting benefit without warning. Employer offered no evidence that the loss of Claimant’s benefit was negotiable or capable of revision.

 

Claimant was not obligated to continue working under Employer’s new terms. It is true, as the majority notes, that a claimant seeking to establish a necessitous and compelling reason for quitting must demonstrate, inter alia, that he made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). However, a unilateral reduction in compensation in and of itself provides a necessitous and compelling reason for quitting, if the reduction is substantial. See, e.g., Steinberg Vision Associates, 624 A.2d 237; Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376 (Pa. Cmwlth. 1981) (salary reduction of 25%); Ship Inn, Inc. v. Unemployment Compensation Board of Review, 412 A.2d 913 (Pa. Cmwlth. 1980) (claimant’s $67.80 weekly salary reduced by $15). In these cases, this Court held that the claimants’ salary reductions were substantial and provided a necessitous and compelling cause to immediately quit. Claimant’s 50% reduction in compensation in the present case should compel the same result.