MERS - recorder of deeds v. MERS - 3d Cir.

Montgomery Co. Record of Deeds v. MERSCORP – 3d Cir. – August 3, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144315p.pdf

 

In 2011, Appellee Nancy J. Becker, the Recorder of Deeds for Montgomery County, Pennsylvania , brought this action on behalf of herself and other similarly situated county recorders of deeds in Pennsylvania against MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc., entities associated with the MERS System (“MERS”), a national electronic registry system for mortgage loans.  The Recorder sought to recover millions of dollars in unpaid recording fees, contending that the MERS entities have unlawfully failed to pay such fees in violation of Pennsylvania law, 21 Pa. Cons. Stat. Ann. § 351. Because we conclude that § 351 does not create a duty to record all land conveyances, a key premise on which the Recorder’s claims were and are based, we will reverse.

 

We will also deny the Recorder’s motion for certification of two issues to the Supreme Court of Pennsylvania. The answer to the issue of state law that decides this case, at least before us, is so clear that we would be abdicating our responsibilities by punting. We recognize, of course, that were the Supreme Court at some point to answer the question differently, that decision would control. Cf. County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947, 951 (8th Cir. 2014) (declining to certify issue to the state’s highest court); Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 735 (7th Cir. 2013) (same).

expungement - founded report

DM v. DPW – Cmwlth Court – August 3, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1463CD14_7-27-15.pdf?cb=1

 

The court upheld DPW’s dismissal of D.M.’s (Petitioner) appeal to expunge a founded report of child abuse maintained in the ChildLine Registry pursuant to the Child Protective Services Law (CPS Law). 

 

It rejected arguments that (i)the record from Petitioner’s criminal proceeding did contian sufficient facts to serve as the basis for a “founded” report of child abuse;  and (ii) that a report of suspected child abuse based upon court action must be reported as “unfounded” if it is not finalized within sixty (60) days of the date of criminal sentencing.

 

The subject child was seventeen years old at the time of the events at issue and a resident at a facility for adolescents.   Petitioner was employed at the residential facility and in his capacity as a staff member and supervisor was responsible for Child’s welfare.

 

Petitioner pleaded no content to a harassment charge.  The information filed by the District Attorney stated that the harassment charge was based upon the following:

with intent to harass, annoy, or alarm another person, [Petitioner] did communicate to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures, in that [Petitioner] did state to a seventeen (17) year old female victim “I bet you don’t shave your [p---y].” and/or did ask the victim what kind of underwear she was wearing and/or did grab his penis in front of the victim while stating “I bet you can’t handle this.”

disability - step 2 - severity

O’Keefe v. Colvin – ED Pa. -  July 20, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0633P.pdf

 

 The Court will sustain O’Keefe’s objection that the Administrative Law Judge erred in holding his mental impairment did not meet the standard of severity in step two of the five-step sequential evaluation process used to determine if an individual is disabled.   Accordingly, O’Keefe’s request for review will be granted, and this case will be remanded to the Commissioner for further review consistent with this Memorandum.

 

The ALJ found at step two of the analysis that O’Keefe’s obesity was a severe impairment and that his hypertension and fatty liver disease, when combined, were also severe impairments. The ALJ also concluded, however, that O’Keefe’s affective disorder was best described as depression, NOS (not otherwise specified), and was nonsevere.

 

O’Keefe asserts that impairment severity is a “de minimis” inquiry and an impairment must be found severe if it imposes anything more than a minimal effect on claimant’s ability to work. He argues the ALJ failed to properly assess and weigh the material health evidence, and the ALJ did not properly analyze the expected duration of O’Keefe’s mental impairments despite evidence that his medical condition steadily declined after he entered a formal mental health center. The Court agrees and finds the ALJ did not use the appropriate standard when finding O’Keefe’s mental impairment was not severe.

 

“The burden placed on an applicant at step two is not an exacting one,” and “an applicant need only demonstrate something beyond ‘a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing Soc. Sec. Admin. Program Policy Statement, SSR 85-28, 1985 WL 56856, at *3 (1985)); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (“If the evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process should continue.”). Further, “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant.” McCrea, 370 F.3d at 360 (citing Newell, 347 F.3d at 546-47).

 

In making his decision as to disability, the ALJ does not have discretion to reject a medical expert’s opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical evidence, and he cannot “supplant[] the opinions of [the claimant’s] treating and examining physicians with his personal observation and speculation.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ must give the opinions of a claimant’s treating physician “substantial and at times even controlling weight.” See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 (3d Cir. 2008) (citation omitted). If rejecting a treating physician’s opinion outright, he may only do so “on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317 (citations and internal quotation marks omitted). In other words, the ALJ may not substitute his lay opinion for the medical opinion of a treating physician, especially in cases involving mental disabilities. See Id. at 319; Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014).

 

If an ALJ believes that the submitted reports are conclusory or unclear, it is “incumbent upon the ALJ to secure additional evidence from another physician.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); see also Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (“[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.”). According to SSA policies, the ALJ “must obtain an updated medical opinion from a medical expert” when additional medical evidence is received that “may change the State Agency’s medical or psychological consultant’s findings.” SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996); Morales, 225 F.3d at 319-20; accord 20 C.F.R. § 416.912(e) (stating that an ALJ may ask claimant to attend a consultative exam if evidence from claimant’s own medical sources are insufficient or nonexistent); 20 C.F.R. § 404.1517 (explaining if a claimant’s medical sources cannot or will not provide sufficient medical evidence about claimant’s impairment, an ALJ may ask the claimant to have one or more physical or mental examinations).

 

consumer - negligent misrepresentation

Gongloff Contracting v.  Kimball & Associates – Pa. Super. – July 8, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A13018-15o%20-%201022769965009462.pdf?cb=1

 

 

The elements of a common law claim for negligent misrepresentation are:

 

“(1) a misrepresentation of a material fact; (2) made under circumstances in

which the misrepresenter ought to have known its falsity; (3) with an intent

to induce another to act on it; and (4) which results in injury to a party

acting in justifiable reliance on the misrepresentation.” Bilt-Rite, 866 A.2d

at 277 (quoting Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999)). Negligent

misrepresentation differs from intentional misrepresentation “in that the

misrepresentation must concern a material fact and the speaker need not

know his or her words are untrue, but must have failed to make a

reasonable investigation of the truth of these words.” Bortz, 729 A.2d at

561.

 

Pennsylvania law generally bars claims brought in negligence that

result solely in economic loss. David Pflumm Paving & Excavating, Inc.

v. Foundation Services Company, 816 A.2d 1164, 1168 (Pa. Super.

2003) (“This Court has consistently denied negligence claims that cause only

economic loss”). However, a narrow exception is found in Section 552 of the

Restatement (Second) of Torts entitled, “Information Negligently Supplied

for the Guidance of Others,” and provides:

 

(1) One who, in the course of his business, profession or

employment, or in any other transaction in which he has a

pecuniary interest, supplies false information for the guidance of

others in their business transactions, is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon

the information, if he fails to exercise reasonable care or

competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1).

 

 

In Bilt-Rite, the Pennsylvania Supreme Court adopted Section 552

and held that it applied in:

 

cases where information is negligently supplied by one in the

business of supplying information, such as an architect or design

professional, and where it is foreseeable that the information will

be used and relied upon by third persons, even if the third

parties have no direct contractual relationship with the supplier

of information.

 

866 A.2d at 287. The adoption of Section 552 was not meant to “supplant[]

the common law tort of negligent misrepresentation, but rather, [to] clarify[]

the contours of the tort as it applies to those in the business of providing

information to others.” Id.

 

debt collection - fdcpa - "materiality"

Jensen v. Pressler & Pressler – 3d Cir. – June 30, 2015

 

http://www2.ca3.uscourts.gov/opinarch/142808p.pdf

 

OPINION OF THE COURT

______________

McKEE, Chief Judge.

 

We are asked to decide whether a false statement in a communication from a debt collector to a debtor must be material in order to be actionable under a provision of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e. We conclude that materiality is required, as it is subsumed within the “least sophisticated debtor” standard that has traditionally governed FDCPA claims. Because we do not find the misstatement at issue in this case material, we will affirm the District Court’s grant of summary judgment to Pressler & Pressler and Midland Funding, LLC.

UC - willful misconduct - absences

Beck v. UCBR – Cmwlth. Court – unreported memorandum opinion – June 16, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2001CD14_6-26-15.pdf?cb=1

 

Absences alone, although possibly grounds for discharge, do not necessarily constitute willful misconduct. Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1051 (Pa. Cmwlth. 1985). At least one of the following elements must be present to justify the denial of benefits: (1) excessive absenteeism; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of an employer’s policy; or (5) disregard of warnings. Id. at 1052. “An employer has the right to expect [its] employee[s] to maintain regular working hours and to comply with office procedures.” Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976).

 

Once the employer meets its burden, the burden of proof shifts to the employee to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. 1976). Whether a claimant has good cause to violate a work policy is a question of law subject to our review and should be viewed in light

of all of the attendant circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).

_______________

 

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 - vol. quit - substantial change in working conditions and compensation - retaliation

WFG Natl. Title Insurance Co. v. UCBR – Cmwlth. Court – June 25, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1268CD14_6-26-15.pdf?cb=1

 

Claimant worked as a vice president of agency sales. His compensation was an annual salary of $105,000, plus commission.   In September 2013, Employer advised Claimant that he would be working under the direction of a new supervisor. In light of problems involving harassment and profanity that he was experiencing with his former supervisor, however, Claimant deemed it time to “go on the record” and registered a formal complaint with Employer’s human resources department outlining the behavior of his former supervisor and how it had increased his anxiety and led to a higher dose of medication.  Although Employer conducted an investigation, it dismissed Claimant’s allegations and took no disciplinary action against the former supervisor.

 

In October, 2013, Claimant’s new supervisor presented him with an itemization of new goals and expectations for the fall of 2013.  Part of the new plan involved the exclusion of Claimant’s top two income producing clients, something that would would result in a pay decrease of approximately 15% - 20% yearly.”  Another part of the new plan included the expectation that Claimant would achieve an average of ten new agents per month, despite that fact that Employer, as a whole, “achieve[d] only slightly higher than ten new agents per month.”  Soon thereafter, Claimant met with both his former and current supervisors, expressing his dissatisfaction with the new plan. In response, they advised Claimant that there would be no changes and that “he would be expected to conform to the new expectations.”  Claimant believed that the new plan constituted retaliation for his formal complaint.  Claimant quit his job “due to his belief [that] the new goals and expectations represented a unilateral change to his job duties and contained unachievable expectations.”

 

A claimant bears the burden of proving necessitous and compelling cause for leaving his or her job.   In order to show such cause, the claimant must establish that: “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve [his] employment.”  While we recognize that cause of a necessitous and compelling nature may exist where an employer has instituted an unreasonable, unilateral change in the employment agreement, mere dissatisfaction with reasonable modifications in working conditions is not considered good cause for a voluntary quit. Kistler v. UCBR, 416 A.2d 594, 597 (Pa. Cmwlth. 1980). It is up to the claimant to establish that the change was so unreasonable and so burdensome that a reasonable person under like circumstances would have been compelled to quit. Unangst v. UCBR, 690 A.2d 1305, 1307-08 (Pa. Cmwlth. 1997).

 

Where an employer modifies the method by which it pays its employees, such as altering the basis for commissions, necessitous and compelling cause for a voluntary quit may be established. #1 Cochran, Inc. v. Unemployment Comp. Bd. of Review, 579 A.2d 1386, 1390 (Pa. Cmwlth. 1990). While a significant reduction in pay may constitute necessitous and compelling cause, Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 914 (Pa. Cmwlth. 1984), there is no talismanic percentage figure to denote a sufficiently substantial reduction in pay from one that is not. Each case must be decided on its own circumstances. Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).

 

In concluding that Claimant established necessitous and compelling cause for his voluntary quit, the Board weighed the evidence and found significance in both the combination and relatively quick succession of events. These events included Claimant’s reassignment to a new supervisor, Employer’s unwillingness to act on Claimant’s formal complaint, the substantial reduction in his compensation and presentation of the memo itemizing unachievable new goals and expectations. The proverbial “last straw” occurred at the supervisors’ meeting with Claimant when they refused to negotiate the unreasonable goals outlined in the memo. As the Board determined, it was not unreasonable for Claimant to conclude that Employer’s presentation of unattainable targets was retaliation for his recent complaint, which resulted in no action being taken by Employer. Accordingly, accepting Claimant’s version of the events and weighing the evidence, the Board concluded that Employer’s substantial and unilateral changes, done in the spirit of retaliation, constituted necessitous and compelling cause for Claimant’s voluntary quit. We agree.

 

_________________________

 

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 - wages - sec. 401(a) and 404 - claimant must earn at least 49.5% of wages outside of highest quarter

Alla v. UCBR – Cmwlth. Court – Junbe 25, 2015 -

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2118CD14_6-25-15.pdf?cb=1

 

It is a claimant’s burden to prove that he is financially eligible for unemployment benefits. Devine, 101 A.3d at 1237; Pagliei v. UCBR, 37 A.3d 24, 26 (Pa. Cmwlth. 2007). To be financially eligible for benefits, a claimant must satisfy the earnings requirements of sections 401 and 404 of the Law for his base year. 43 P.S. §§801(a), 804. Claimant received a payout of accrued sick, annual, and personal leave upon his separation in the third quarter of 2013 in the amount of $30,728. This payment was properly characterized as wages, and, absent evidence that Employer generally makes accrued leave payments in a different manner, it was properly included in the quarter in which it was paid by Employer to calculate Claimant’s base year wages. Id.; 34 Pa. Code §61.3(a).   Claimant did not earn at least 49.5% of his earnings outside his highest quarter for the qualifying base year.   Thus, Claimant is financially ineligible for unemployment compensation benefits under sections 401(a) and 404 of the Law.

 

Pa. Constitution - legislative procedure - single subject, change of original purpose

Leach v. Commonwealth – Cmwlth. Court – June 25, 2015 – en banc 7-0

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/585MD14_6-25-15.pdf?cb=1

 

Held: Act 192 violates Pennsylvania Constitution Article III, Section 1 and Section 3, relating to original purpose and single subject.

 

Act No. 192 of 2014, which began as a two-page bill establishing criminal penalties for the theft of secondary metals.   In the final stages of enactment, it became an act that also created a civil cause of action for a broad class of individuals and organizations seeking to challenge municipal firearm legislation, and it authorized an award of attorney fees to successful challengers in the newly-created civil action.

 

FMLA - oppty. to cure insufficient medical certification - 3d Cir.

Hansler v. Lehigh Valley Hospital Network – 3d Cir. – June 22, 2015

 

http://www2.ca3.uscourts.gov/opinarch/141772p.pdf

 

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network, under the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. She submitted a medical certification requesting leave for two days a week for approximately one month.  The medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.  Lehigh Valley cited excessive absences and informed her that the request for leave had been denied.  Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.

 

The Department of Labor’s regulations govern how employers are to respond to perceived deficiencies in medical certifications. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). A certification is “incomplete” if the “employer receives a certification, but one or more of the applicable entries have not been completed.” Id. A certification is “insufficient” if the “employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” Id. If the employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.” Id.; see Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 837 (7th Cir. 2014) (“[T]he regulations do not authorize the employer to deny FMLA leave where the employee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.”).

 

Hansler does not argue on appeal that her certification established the “extended period of time” requirement under the FMLA, and we do not decide that issue here.   Instead, Hansler maintains she was entitled to the cure period set forth in the regulations because the certification was insufficient, rather than negative on its face. We agree.  When a certification submitted by an employee is “vague, ambiguous, or non-responsive” the employer must, under 29 C.F.R. § 825.305(c), provide the employee an opportunity to cure the deficiency within seven days.   Cf. cases discussing negative certifications.  Although the First, Sixth, and Seventh Circuits appear to agree that “employers have no responsibility to conduct further investigation when a certification is invalid on its face,” the cases discussing negative certifications do not apply where a court or employer are considering an ambiguous or non-responsive certification. Hoffman, 394 F.3d at 418-19.

_____________________

 

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admin. law - barbers - license - criminal conviction

Kirkpatrick v. Bureau of Prof. and Occup. Affairs – Cmwlth. Court – June 10, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1059CD14_6-10-15.pdf?cb=1

 

Barber’s license was improperly revoked based on his plea of nolo contendere to misdemeanor indecent assault, where the crime bore no relationship to his practice of barbering and the relevant statute referred only generally to engaging in “unethical or dishonest practice or conduct....” 

 

The General Assembly could have easily shown its intention to make a barber subject to discipline by indicating, as it had in other statutes, that a conviction would have that effect.  Without such indication of legislative intent, the Board would have complete discretion, unrestricted by any standards.

 

________________________

 

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admin. law - late appeal - non-negligent circumstances

In re J.K. – Cmwlth. Court – June 10, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2022CD14_6-10-15.pdf?cb=1

 

On appeal from finding of indicated report of child abuse, unrebutted testimony of claimant’s attorney about inability to perfect appeal within applicable time because of medical emergency was sufficient to establish non-negligent circumstances permitting late appeal, under Bass v. Cmwlth, 401 A.2d 1133 (Pa. 1979) and its progency.

 

DPW erred in requiring attorney to present other evidence to support his testimony, when that testimony was neither challenged nor discredited

 

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admin. law - evidence - when silence is an admission

Lancaster EMS Assn. v. UCBR – June 4, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1749CD14_6-4-15.pdf?cb=1

 

 

Board decision in favor of claimant affirmed.  Employer appeal dismissed

 

silence as admission

“Silence is considered an admission, only when the circumstances are such that one ought to speak and does not.” McIntyre v. Unemployment Comp. Bd. of Review, 687 A.2d 416, 418 (Pa. Cmwlth. 1997). We define these circumstances in the context of the events surrounding discharge, such as when the person presenting the information is a supervisor with an ability to terminate an employee, and the employee refused to deny the accusation. Id.   We declined to find an admission by silence when a claimant is testifying at a UC hearing. See Carson v. Unemployment Comp. Bd. of Review, 711 A.2d 582 (Pa. Cmwlth. 1998).  This Court holds the law on implied admissions does not lessen an employer’s burden of proof in a willful misconduct case. Id.; see also Snyder v.  Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 104 C.D. 2013, filed August 27, 2013) (unreported), 2013 WL 4530950, *5 (distinguishing claimant’s statement in UC hearing with statement to employer at the time she was confronted with misconduct). We reasoned “it is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with [the] employer.” Carson, 711 A.2d at 584; Snyder 2013 WL 4530950, *5 (holding employer is required to “present independent, competent testimony corroborating an accusation of misconduct before the Court may make an adverse inference from a claimant’s silence.”).

___________________

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 - vol. quit - repeated late payment of wages

Weavertown Transp. Leasing v. UCBR – Cmwlth. Court – June 8,2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1506CD14_6-8-15.pdf?cb=1

 

Court affirmed UCBR decision holding that claimant had good cause to quit his job, where  employer repeatedly failed to pay claimant proper wages at the time they were due.

 

Even though Employer issued supplemental checks to resolve some of the alleged payroll discrepancies and, therefore, did not technically refuse to pay Claimant, it is undisputed that Employer repeatedly failed to pay Claimant the proper amount owed to him when it was due.

 

Moreover, to hold that Claimant is ineligible for UC benefits because he would not accept being repeatedly, untimely paid the full amount for his work efforts would be contrary to this Court’s precedent and Section 3(a) of the Wage Law, which requires that “employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer.” 43 P.S. § 260.3(a)  (emphasis added). This Court has previously stated that “[a] contrary view would permit an employer to require a worker to submit to denial of a [timely] day’s pay under pain of loss of unemployment benefits. As the scriptural admonition states, the laborer is worthy of his hire.” LaTruffe, 453 A.2d at 48 (holding that a claimant had a necessitous and compelling reason to quit his employment where the employer wrongfully refused to pay him for one day’s work).

 

The court has held that the “failure to make timely payment for services rendered creates a real and substantial pressure upon an employee to terminate employment” and “repeat occurrences [of such failures] would cause a reasonable person to terminate employment.” Shupp v. Unemployment Compensation Board of Review, 18 A.3d 462, 465 (Pa. Cmwlth. 2011). The “underpayment of wages over a period of time [is] also sufficient cause to quit.” LaTruffe v. Unemployment Compensation Board of Review, 453 A.2d 47, 47 (Pa. Cmwlth. 1982) (citing Frey v. Unemployment Compensation Board of Review, 383 A.2d 1326, 1327 (Pa. Cmwlth. 1978)). A claimant will not be ineligible for UC benefits as long as the claimant “take[s] ‘common sense’ action that would have given the employer an opportunity to understand the nature of [his] objections and to take prudent steps to resolve the problem.” Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996) (citing Tedesco Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 552 A.2d 754, 756 (Pa. Cmwlth. 1989)); Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109, 1110 (Pa. Cmwlth. 1987).

 

Pursuant to Section 3(a) of the Wage Payment and Collection Law (Wage Law),4 which is implicated whenever a claimant asserts that he quit due to an employer’s failure to properly pay wages, [e]very employer shall pay all wages . . . due to his employes on regular paydays designated in advance by the employer. Overtime wages may be considered as wages earned and payable in the next succeeding pay period. All wages . . . earned in any pay period shall be due and payable within the number of days after the expiration of said pay period as provided in a written contract of employment . . . . 43 P.S. § 260.3(a) (emphasis added); Shupp, 18 A.3d at 464. Applying Section 3(a) of the Wage Law, this Court has held that “employees are well within their rights to demand timely payment for work performed” and that “payment as agreed for services rendered is the very essence of an employment relationship, such that no employee can be compelled to work without payment.” Shupp, 18 A.3d at 464 (emphasis omitted).

 

_____________________

  

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/

admin. law - Statutory Construction Act applies to agency regulations

Quest Diagnostics Venture LLC v. Commonwealth – Cmwlth. Court – June 9, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/782FR12_6-9-15.pdf?cb=1

 

The statutory construction rules apply to the interpretation of an agency's regulations. Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 937 (Pa. Cmwlth. 2009).

 

For example,where the words of the regulations are clear and free from all ambiguity, they may not be disregarded under the pretext of pursuing its spirit.   Statutory Construction Act, 1 Pa. C.S. § 1921(b); Pacella v. Washington Cnty. Tax Claim Bureau, 10 A.3d 422, 427 (Pa. Cmwlth, 2010).   In addition, the regulations must be construed, if possible, to give effect to all of its provisions. 1 Pa. C.S. § 1921(a); Wheeling-Pittsburgh Steel, 979 A.2d at 937.

admin. law - due process - notice of adjudication and of right to appeal

Uzarski v. State Police – Cmwlth. Court – May 19, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2208CD13_5-19-15.pdf?cb=1

 

Civilian employee of State Police was entitled to due process protections (notice, opportunity to be heard, etc.) in 2 Pa. C.S. 501 et seq., before state employer could hold her financially responsible for lost/damaged state property.

 

Neither of two internal memos from one of the employee’s supervisors to another met the minimum due process requirements under the law.   Neither was served on Petitioner, nor did either advise her of any right to appeal.   There was no indication on either memo (the latter of which was an “adjudication”) that the aggrieved person was even copied or that either was a final administrative decision on the matter.   Accordingly, in the absence of service on Petitioner and, therefore, adequate notice of the decision, and the complete lack of any notice regarding her right to appeal, the memo simply was insufficient to trigger a thirty-day limit within which to file a petition for review.

 

Section 504 of the Law, 2 Pa. C.S. 504, in pertinent part, provides that: “No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. . . .” 2 Pa. C.S. § 504 (emphasis added).  Moreover, in Holloway v. Lehman, 671 A.2d 1179, 1181 (Pa. Cmwlth. 1996), this Court noted that, “[w]hat process is due, at a minimum, to one who has lost property via the action of a Pennsylvania State agency or Commonwealth official is addressed in the [Administrative Agency Law].”  That process includes, at a minimum, an opportunity to be heard, to have testimony be recorded, to have a full and complete record of the proceedings be kept, the right to examine and cross-examine witnesses and a written adjudication with findings and reasons for the decision.   

 

 

 

 

Consumer Protection - standard of proof

Boehm v. Riversource Life Insurance – Pa. Super – May 19, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A27014-14o%20-%201022190983492331.pdf?cb=1

 

Fraudulent misrepresentation case in connection with the sale of life insurance policies.  Jury found in favor of defendant on common law fraud claim, but court found for plaintiffs in the amount of $295,305.78, including attorneys’ fees and costs.  The Superior Court affirmed.

 

Liberal construction

1994). “The UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices.” Wallace v. Pastore, 742 A.2d 1090, 1092, 1093 (Pa.Super. 1999), appeal denied, 764 A.2d 1071 (Pa. 2000), citing Hodges v. Rodriguez, 645 A.2d 1340 (Pa.Super. 1994 “In addition, the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Id. (citations omitted). “The UTPCPL’s ‘underlying foundation is fraud prevention.’” Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001), quoting Commonwealth v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa. 1974).

 

Standard of proof

Trial court’s use of preponderance standard of proof affirmed.  In the predominant number of civil cases, where only economic and property interests are at stake, the evidentiary burden requires only proof by a preponderance of the evidence. Section 201-9.2 of the UTPCPL, providing for private actions, does not set forth which standard of proof applies, and apparently the matter has never been decided by the Pennsylvania appellate courts. There is no language anywhere in the UTPCPL suggesting that private actions brought pursuant to Section 201-9.2 should be governed by a more demanding standard of proof than proof by a preponderance of the evidence. Moreover, the preponderance of the evidence standard of proof, which is the standard usually applied to remedial legislation, is consistent with the UTPCPL’s purpose of protecting the public from fraud and unfair or deceptive business practices.  The court relied heavily on and quoted liberally from Judge Wettick’s opinion in eck v. Metropolitan Life, 2006 WL 634564 (CCP Allegheny 2006) and cited supporting case law from other states.

 

Parol evidence – Toy case

The court held that the parol evidence rule did not bar proof of the insurance agents’ misrepresentations, which were alleged to be fraud in the execution of the contract rather than fraud in the inducement.  Toy v. Metropolitan Life, 928 A.2d 186 (Pa. 2007).  The trial court found the the plaintiff’s reliance on the misrepresenations was justifiable and that plaintiff was credible

 

 

UC - continuances

Magio v. UCBR – Cmwlth. Court  - MAY 14, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1263CD14_5-14-15.pdf?cb=1

 

Held: Last minute request for continuance denied.

 

The UC regs, 34 Pa. Code §101.23(a) allows a continuance “only for proper cause and upon the terms as the tribunal may consider proper.” A claimant who desires a continuance due to his inability to attend a hearing has a duty to “immediately request a continuance in writing before the hearing.” Flores v. UCBR, 686 A.2d 66, 76 (Pa. Cmwlth. 1996) (citation omitted). The UC Regulations further provides that, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence.” 34 Pa. Code at §101.51.

 

In Cowfer v. UCBR, 534 A.2d 560, 562 (Pa. Cmwlth. 1987), we noted that “last-minute requests for continuances will not be viewed favorably by this Court.” Moreover, in Skowronek, 921 A.2d at 558, we reasoned that “[i]f counsel was unavailable due to a previously scheduled appointment, there is no explanation as to why the request was not made prior to 6:30 p.m. on the last business day before the hearing.” Even the four notices of hearing sent to Claimant advised: “If you cannot attend the hearing for any reason, you may request a continuance (postponement) of the hearing. You should do this as soon as possible.” (Notices of Hearing, 2/20/2014, at 3, C.R. Item No. 8.) (emphasis added).

 

In this case, not only was the continuance request filed shortly before the scheduled hearing, the reason given for the request was not because of an emergency or unexpected event. Instead, Claimant’s counsel stated that he could not attend because he was traveling abroad. Generally, such travel requires advance planning and counsel would know that he would be unavailable on the hearing date and should have requested a continuance much earlier, given that notices for the hearing were sent well in advance.

 

Given that the request for a continuance was received less than an hour before the scheduled time and was not because of an unexpected event, the Referee did not abuse his discretion in denying the continuance, and absent an abuse of discretion, we will not override a referee’s denial of a continuance. Steadwell v. UCBR, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983).

 

____________________

 

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 - independent contractor

Checkum v. UCBR – May 14, 2015 – Cmwlth. Court – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1793CD14_5-14-15.pdf?cb=1

 

Held : There is no evidence that Claimant was customarily engaged in an independently established trade, occupation, profession or business.  UCBR reversed.

 

Section 4(l)(2)(B),  43 P.S. § 753(l)(2)(B) (relating to self-employment), provides a two-prong test for determining whether an individual is an independent contractor or an employee. Kurbatov v. Dept. of Labor & Indus., 29 A.3d 66 (Pa. Cmwlth. 2011). It states in pertinent part:

 

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control and 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)

 

The purpose of this section “is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Whether a claimant is an employee or an independent contractor under Section 4(l)(2)(B) is a question of law subject to our review. Stauffer v. UCBR, 74 A.3d 398 (Pa. Cmwlth. 2013).

 

An individual receiving wages for his services is presumed to be an employee. Thomas Edison State Coll. v. UCBR, 980 A.2d 736 (Pa. Cmwlth. 2009). Employer alone bears the heavy burden of overcoming the presumption of employment. Kurbatov.

 

____________________

 

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/