admin. law - late appeal - unsuccessful electronic transmission - extraordinary circumstances - nunc pro tunc appeal allowed

Bureau Veritas North America v. PennDOT – Cmwlth. Court – November 3, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/99CD15_11-3-15.pdf?cb=1

 

appeal - unsuccessful email does not constitute filing

The unsuccessful sending of an email does not constitute filing with an administrative agency. Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286, 1289 (Pa. Cmwlth. 2009); McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 957-58 (Pa. Cmwlth. 2006). Moreover, the fact that the email reached DOT’s server does not constitute receipt by the head of DOT, with whom the protest must be filed. See Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1001-03 (Pa. Cmwlth. 2010) (appeal left before expiration of deadline in drop box in foyer of building when agency offices were locked was untimely because it was not filed until agency picked it up the next day).  BV cites no rule, regulation or decision of any court holding that unsuccessful electronic transmission constitutes the receipt or filing of a document. The authorities on which BV relies do not provide or hold that filing occurs at the time when an electronic transmission is rejected;

 

Nunc pro tunc appeal – unsuccessful electronic transmission – extraordinary circumstances

However, appellant’s authorities do allow unsuccessful electronic transmission as basis for nunc pro tunc relief despite the fact that the document was not received and filed at the time of the failed transmission. See Pa. R.C.P. No. 205.4 (e)(4)(ii) (“If a party makes a good faith effort to electronically file a legal paper but it is not received, accepted or filed by the electronic filing system, the court may order that the paper be accepted and filed nunc pro tunc upon a showing that reasonable efforts were made to timely present and file the paper”); Phoenix Global Ventures, LLC v. Phoenix Hotel Associates, Ltd., 422 F.3d 72, 74, 76 (2d Cir. 2005) (court could “excuse” filing of motion one day beyond deadline where counsel “was assured” that filing was successful on the date of filing, within filing deadline, and was notified of rejection next day, after deadline expired); Dallas v. Platinum Health Care, LLC, (E.D. Mo., No. 4:14-CV-1377 (CEJ), filed Dec. 15, 2014), 2014 U.S. Dist. LEXIS 172735 at *3-*4 (late filing treated as timely based on “extraordinary circumstance” that prevented timely filing where counsel was notified on the last day for filing that electronically filed complaint had been received by court filing system and complaint was not rejected until the next day); Inwards v. North Dakota Workforce Safety & Insurance, 851 N.W.2d 693, 697-98 (N.D. 2014) (untimely perfection of appeal excused under electronic filing rule providing that “[o]n a showing of good cause, the court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems”).

 

Extraordinary circumstances – equitable considerations

BV has, however, shown that its protest should have been heard nunc pro tunc. A document filed with an administrative agency after the expiration of a jurisdictional deadline that would ordinarily bar its consideration can be accepted as filed nunc pro tunc where the filer shows that extraordinary circumstances caused the delay in filing. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000); Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996); H.D. v. DPW, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); Martin Media v. PennDOT, 727 A.2d 140, 142 (Pa. Cmwlth. 1999). The fact that the Procurement Code does not specifically address and provide for such relief does not preclude allowance of a protest nunc pro tunc. Nunc pro tunc relief is an equitable exception to strict deadlines that by their terms absolutely bar untimely filings. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); Martin v. DPW, 514 A.2d 204, 208-09 (Pa.  Cmwlth. 1986). Equitable considerations apply to Procurement Code protests and can permit a protest that would otherwise be untimely. Omnicare, Inc., 68 A.3d at 24 (agency would be estopped from enforcing Procurement Code seven-day time limit if it had misrepresented the deadline for filing a protest); Firetree, Ltd., 3 A.3d at 764 n.6 .

 

Elements for nunc pro tunc

The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay. Cook, 671 A.2d at 1131; C.E. v. DPW, 97 A.3d 828, 832 (Pa. Cmwlth. 2014);  H.D., 751 A.2d at 1219. BV has satisfied all of these requirements.

 

This case

The rejection of BV’s email protest constitutes extraordinary circumstances sufficient to warrant nunc pro tunc relief.   BV emailed its protest to DOT on November 20, 2014, before the expiration of the filing deadline. The fact that the email was sent at 6:33 p.m., after business hours, does not negate its timeliness. Absent a statute or regulation requiring that an electronic transmission be received by a particular time of day to be considered filed on that day, a document is timely filed if it is successfully electronically transmitted at any time before midnight of the filing deadline. Dumberth v. UCBR, 837 A.2d 678, 681-83 (Pa. Cmwlth. 2003) (en banc) (fax transmission successfully sent after business hours on last day of deadline was timely filed).  DOT does not contend that it has any regulation requiring that protests or other filings be received by the close of business to be treated as filed on the day that they are actually received. Compare 52 Pa. Code § 1.11(a)(4) (providing that documents are deemed filed with the Public Utility Commission “[o]n the date stated on the confirmation of receipt from the Commission’s electronic filing system, when the time shown is prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America) and … the Commission offices are open,” but that “[w]hen a document is filed electronically when the offices of the Commission are closed, the document will be deemed to be filed at the time the offices next open”).

 

BV had reason to believe that its timely email was a proper method of filing its protest. BV understood from its dealings with DOT that DOT permitted filing by email.  DOT does not contend that its regulations or the Procurement Code or any other applicable regulations or statutes prohibit or restrict the filing of Procurement Code protests by email or advise filers that they utilize email transmission at their own risk. Indeed, DOT admitted at oral argument that it accepts protests filed by email. This case thus stands in sharp contrast to the decisions where this Court has held that unsuccessful email filing did not constitute grounds for nunc pro tunc relief. See Roman-Hutchinson, 972 A.2d at 1289 (failure of email transmission did not constitute extraordinary circumstances because the agency’s regulation expressly provided that “[a] party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed”) (quoting 34 Pa. Code § 101.82(b)(4)) (emphasis omitted); McClean, 908 A.2d at 959.

 

Email rejected due to DOT formatting restriction – zip files – no notice to appellant

While BV’s email was rejected by DOT’s server and was therefore not received by DOT on November 20, 2014, the rejection was due to a DOT formatting restriction, not to any error in address or any malfunction in BV’s transmission.   BV had no notice of DOT’s formatting restriction. BV was unaware that DOT’s server does not accept .ZIP files.  DOT does not contend that its regulations prescribe format requirements for email filings or submissions. Nor does DOT contend that any of its communications to bidders or procurement policies or guidelines advise parties of format restrictions on email submissions or that BV had any notice that .ZIP file documents would not be accepted. Moreover, DOT’s failure report did not advise BV of the reason for the rejection of the email.  Given the absence of any notice by DOT of its restriction on email format, the rejection of BV’s timely sent email protest  constitutes extraordinary, non-negligent circumstances that delayed the filing of BV’s protest.

 

There is no dispute that BV satisfied the other two requirements for nunc pro tunc relief. BV inquired into the reasons for the rejection of its email and successfully resent and filed its protest by email on November 21, 2014, the next day, only one day after the deadline.  There is no claim by DOT that the one-day delay caused it any prejudice. To the contrary, the only arguments that DOT has asserted against BV’s request for nunc pro tunc relief are the contentions that such relief cannot be granted in Procurement Code protests and that BV has not shown extraordinary circumstances.

 

Because the Secretary erred in denying BV’s request for leave to file its protest nunc pro tunc, we reverse the Secretary’s dismissal of the protest as untimely and remand this matter to the Secretary for consideration of the protest on the merits.

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Social Security - attorney fees - sec. 406 - 25% cap

Black v. Colvin – ED Pa. – November 2, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0931P.pdf

 

The issue presented in this Social Security case is whether the total award of attorneys’ fees to the attorney who represented the claimant at the administrative level

and to another attorney who represented him on judicial review may exceed 25 percent of the claimant’s past-due benefits. It is an issue that has divided the circuit courts of

appeals, and one the Third Circuit has yet to decide.

 

Counsel who successfully represented the plaintiff on judicial review has moved for approval of $18,631.25 in attorney’s fees under § 406(b) of the Social Security Act

(“Act”). When combined with the $12,687.50 that counsel who had represented theclaimant before the agency has requested under § 406(a), the total requested attorney’s

fees exceeds 25 percent of the claimant’s past-due benefits by $6,941.65.

 

We conclude that the 25 percent cap applies only to fees awarded under § 406(b) and does not apply to the aggregate amount of attorney’s fees awarded under both §§ 406(a) and

(b).

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UC - appeal - nunc pro tunc - breakdown in admin. process

Petro v. UCBR – October 19, 2015 – Cmwlth. Court – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1446CD14_10-19-15.pdf?cb=1

 

Late appeal allowed because of breakdown in administrative process.

 

The Referee issued two decisions holding that Claimant’s appeals were untimely. Employer then wrote to the Board that Claimant’s separation from employment was due to a lack of work and that its earlier report that it was due to misconduct was incorrect, but the Board affirmed the Referee’s decisions.

 

The Board erred in denying his appeal nunc pro tunc  ,because there was a breakdown in the administrative process consisting of the UC Service Center twice approving his application for benefits without any objection from Employer. One year later, after benefits had ceased, Employer submitted inaccurate information about the reason for one of several separationss fro employment. Further, Employer acknowledges that its information was inaccurate. There was no misrepresentation on Claimant’s part. The Department’s delays in considering his eligibility for unemployment compensation created a breakdown in the administrative process.

 

Section 501(e) of the Law requires that an appeal from a notice of determination be filed within 15 days from the date the notice was delivered to the claimant. 43 P.S. §821(e).   However, appeals can be accepted nunc pro tunc, or “now for then,” after the 15-day period under certain narrow circumstances. Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appeal nunc pro tunc will be allowed where the late filing is caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent conduct of the claimant or his counsel. Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996).

 A breakdown in the administrative process occurs when “an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000). In the context of unemployment compensation appeals, an administrative breakdown occurs when, for example, “a referee’s decision is mailed to an incorrect address; adequate assistance is not provided to a claimant with cognitive impairment; or, an official misleads a litigant as to the proper procedure for filing an appeal.” Hessou, 942 A.2d at 198.

Here, there are gaps in the record that impede meaningful, effective appellate review. According to the Board, Claimant was issued a UC-44 determination that found Claimant eligible for benefits because the Department “received no information from Employer to the contrary.”

 

However, a remand is necessary because the record contains no records that might explain why the UC Service Center did not hear an objection from Employer on Claimant’s application when it was submitted in February 2013. The Department’s 2014 questionnaire to Claimant asked about his separation from employment, which was confusing because it was sent at a time when he was once again employed full-time by Employer.   A complete record is needed, including the request for relief from charges; the information submitted by Employer to the UC Service Center when Claimant applied for unemployment benefits in February 2013; and the paperwork referenced in Employer’s letter to the Referee. As the record currently stands, we are unable to ascertain whether there was a breakdown in the administrative process to allow Claimant to appeal nunc pro tunc. Remand is the appropriate remedy when effective appellate review cannot be done. Fontana v. Unemployment Compensation Board of Review, 454 A.2d 678, 679 (Pa. Cmwlth. 1983).

 

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - willful misconduct - actual cause of termination - waiver - "standard of conduct" - UCBR is fact-finder

Holdings Acquisition Co., dba Rivers Casino v. UCBR – Cmwlth. Court – 10-19-15 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/135CD15_10-19-15.pdf?cb=1

 

In this willful misconduct case, the claimant was found eligible (or as they like to say, not ineligible), because

 

            - employer claim in Cmwlth Court appeal was not raised before the referee or board, so it was waiver --   An employer “must prove that the act in question was the actual reason for the claimant’s discharge.” Browning–Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 561 A.2d 856, 857 (Pa. Cmwlth. 1989). Issues not properly raised before the Referee and the Board are waived on appeal. See Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981) (quoting Zakrzewski v. Unemployment Compensation Board of Review, 381 A.2d 503, 504 (Pa. 1978)) (holding that issue “is not properly before us” because it was not presented to Referee or Board).  Waiver is also embodied in Pennsylvania Rule of Appellate Procedure 1551(a) 

 

            - standard of conduct is “not an exact science” -  In Woodson v. Unemployment Compensation Board of Review, 336 A.2d 867 (Pa. 1975), the Supreme Court explained: “A determination of whether an employee has engaged in willful misconduct can ... only be made by considering what standard of conduct an employer reasonably requires. Standards expected by one employer may of course not be the standards of another employer. Willful misconduct cannot therefore be considered in a vacuum. It must be considered in relation to the particular employees and to the reasonable standards expected by a particular employer.”  Id. at 868 (emphasis added). Stated otherwise, the “standard of conduct” analysis is not an exact science.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and   Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - employee v. indpt. contractor - right to control

King’s Kountry Corner, LLC v. Dept. of Labor and Industry – October 14, 2015 – Cmwlth. Court – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2139CD14_10-14-15.pdf?cb=1

 

The court affirmed the Department decision that “members” of a limited liability corp. who worked at its stores as salespersons and doing delivery work were “employees” of the LLC and should be subject to UC tax as employees, rejecting the LLC claim that they were independent contractors.   One person held a 93% interest in the LLC and the members each had a 1% interest.  KKC reported compensation paid to members who did sales and delivery work to the federal tax authorities.

 

Liberal construction

The provisions of the Law must be liberally and broadly construed to achieve its objectives of ensuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security. Wedner Unemployment Compensation Case, 296 A.2d 792, 796 (Pa. 1972).

 

“Employment”

The term "employment" is broadly defined as "all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as an officer of a corporation." Section 4(l)(1) of the Law, 43 P.S. § 753(l)(1). Once it has been shown that an individual has performed service for wages, he or she is presumed to be an employee. Section 4(l)(2)(B) of the Law; Cameron v. Dep't of Labor & Indus., Bureau of Emp'r Tax Operations, 699 A.2d 843, 846 (Pa. Cmwlth. 1997). The burden then shifts to the employer to establish an exemption from employment. Hoey v. Dep't of Labor & Indus., Bureau of Emp't Sec., 499 A.2d 1124, 1127 (Pa. Cmwlth. 1985).

 

Right to control

It is the right or authority to exercise control or to interfere with the work of another, not the actual control, that creates an employment relationship. Cameron, 699 A.2d at 846. In order to discern whether the employees were truly employees or independent contractors, it is necessary to look beyond the contract between the employer and the employees to the true facts of the employment. Hoey, 499 A.2d at 1127.  Kountry Korner's managing member had "the authority to … [m]onitor, supervise, manage and control the business activities of  the Company and its employees," as established by testimony and the LLC’s Operating Agreement

 

Because the members performed services for wages, the burden shifted to Kountry Korner to establish that they were not subject to its control or direction over their performance and that they were customarily engaged in an independently established trade, occupation, profession or business. Section 4(l)(2)(B) of the Law. As the Department correctly noted, Kountry Korner did not present any evidence to meet its burden.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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UC - "employee" v. independent contractor

Formularo Catering, Inc.  v. Department of Labor and Industry

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1620CD14_10-16-15.pdf?cb=1

 

Reassessment of employer’s UC taxes upheld by court, which determined that employees which employer claimed were “casual laborers” were “employees” under the UC Law, and not independent contractors.

 

The court upheld the Department’s conclusion that the individuals were engaged in employment under section 4(l)(2)(B) of the Law, 43 P.S. §753(l)(2)(B), that it had satisfiend its burden of showing that the individuals performed services for wages. Specifically, and that it proved an employer-employee relationship between Famularo and the individuals.

 

In determining whether an individual is engaged in “employment” or in the work of an independent contractor under section 4(l)(2)(B) of the Law,  the Department bears the initial burden of showing that the individual provided services in exchange for wages.  Tobey-Karg Sales Agency, Inc. v. Pennsylvania Department of Labor and Industry, 34 A.3d 899, 903 (Pa. Cmwlth. 2011). “[A] person receiving remuneration for services rendered is presumed to be employed and therefore to have ‘employment’ within the meaning of the [Law] . . . .” Electrolux Corporation v. Department of Labor and Industry, Bureau of Employer Tax Operations, 705 A.2d 1357, 1359-60 (Pa. Cmwlth. 1998) (emphasis added).

 

Once the Department meets its burden, the burden shifts to the employer to show that the individual “‘(a) has been and will continue to be free from control or direction over the performance of his or her services [a]nd (b) is customarily engaged in an independent trade.’” Tobey-Karg, 34 A.3d at 903 (citation omitted). Unless the employer proves both elements, the presumption of employment stands. Beacon Flag Car Company (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006).

 

Here, the Department credited testimony that Famularo issued IRS 1099 tax forms to certain individuals but did not report those individuals’ wages to the Department. Although Famularo’s owner disputed the status of these individuals, he acknowledged that Famularo hired them and paid them for their services. Contrary to Famularo’s argument, the Deparetment need only show that the individuals received remuneration in exchange for their services. Electrolux, 705 A.2d at 1359-60. Based on the testimony of  the Deparment witness and Famularo’s owner, the court agreed that the  e Department met its burden. Although the burden then shifted to Famularo, Famularo failed to argue that it met both elements under section 4(l)(2)(B) of the Law.  Therefore, the Department properly concluded that the individuals at issue were engaged in “employment” under section 4(l)(2)(B) of the Law.

 

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consumer - arbitration - motion to compel rejected

Schwartz v. Credit One – ED Pa. – October 14, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0892P.pdf

 

Plaintiff sued Defendant under the Telephone Consumer Protection Act, 47 USC 227 et seq., for its repeated telephone calls to her concerning her son’s credit car account with Defendant, with whom Plaintiff also had an account.

 

The court rejected Defendant’s motion to compel arbitration, since the parties’ agreement concerned only their contractual disputes and not any concerning a dispute between Defendant and Plaintiff’s son.

 

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custody - pre-trial statement - witness list - Rule 1915.4-4

Order      http://www.pacourts.us/assets/opinions/Supreme/out/633civ.pdf?cb=1

 

Rule        http://www.pacourts.us/assets/opinions/Supreme/out/633civ-attach.pdf?cb=1

 

Explanatory comment  

http://www.pacourts.us/assets/opinions/Supreme/out/633civ-rpt.pdf?cb=1

 

 

                                                                     EXPLANATORY COMMENT

 

 

In 2013, the Domestic Relations Procedural Rules Committee (the “Committee”) recognized there was a wide disparity in pre-trial procedures in custody cases among

the various judicial districts. By adopting this rule, the Supreme Court established uniform state-wide pre-trial procedures in custody cases. With an eye toward reducing

custody litigation, the rule encourages early preparation and court involvement for purposes of expedited resolutions. The rule was based upon the pre-trial procedures in

divorce cases as set forth in Pa.R.C.P. No. 1920.33(b). The rule does not affect, however, the First Judicial District's practice of conducting a pre-trial conference upon

the filing of a motion for a protracted or semi-protracted trial.

 

In 2015, the Committee expressed concern the rule as previously adopted by the Supreme Court allowed for an interpretation contrary to the intent of the rule. The

Committee proposed and the Court adopted an amendment to the rule to clarify the rule’s mandate as it relates to witnesses. As a goal of any pre-trial conference is to

settle the case, in whole or in part, the Committee believed a best practice in reaching that goal is having a thorough knowledge of the case, including the substance of

anticipated witness testimony. As amended, the rule plainly states that counsel or a self-represented party is required to discuss with the witness their testimony prior to

including the witness on the pre-trial statement.

 

Unlike Pa.R.C.P. No. 1920.33(b), the rule does not require inclusion of a summary of the witness’s testimony in the pre-trial statement; but rather, an affirmation

by counsel or self-represented party that there was actual communication with each witness about the witness’s testimony. With the additional information from witnesses,

counsel, self-represented parties and the trial court can better engage in more fruitful settlement discussions at the pre-trial conference.

 

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(b)(2)  Inclusion of a witness on the pre-trial statement constitutes an affirmation that the party’s counsel or the self-represented party has communicated with the

witness about the substance of the witness’s testimony prior to the filing of the pre-trial statement

 

 

UC - notice of ineligibility/overpayment - late notice

Grimm v. UCBR – Cmwlth. Court – October 28, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2265CD14_10-28-15.pdf?cb=1

 

Claimant argues that he was prejudiced by the Department’s delay of five months in issuing the notices of determination to inform Claimant that he was ineligible for unemployment compensation benefits and was subject to a fault overpayment and penalty weeks while he continued to receive benefits. However, Claimant did not raise this issue of timeliness of the notices before the referee, and therefore the issue is waived. Grever, 989 A.2d at 402 (“Issues not raised at the earliest possible time during a proceeding are waived.”).

 

Furthermore, the Law does not impose a deadline on the Department to issue notices of determination; instead, Section 501 of the Law requires that the Department “promptly examine” each claim for benefits and notify the claimant in writing if a claim is determined to be invalid.6 43 P.S. § 821(c)(1), (2). Here, that is exactly what happened: the Service Center collected questionnaires from Employer and Claimant regarding Claimant’s separation and also conducted telephonic interviews with Employer and Claimant prior to issuing the notices of determination.

 

6 Timely notice is one of the essential elements of due process; however, “timely notice” for the purpose of procedural due process requires that notice “sufficiently precedes a hearing so as to give the accused enough time to prepare a defense.” Howell v. Bureau of Professional and Occupational Affairs, State Board of Psychology, 38 A.3d 1001, 1008 (Pa. Cmwlth. 2011).  

 

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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admin. law - agency interpretation of statute - level of deference

Lancaster County v. PLRB – Pa. Supreme Court – October 27, 2015

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-15A_B-2015mo.pdf?cb=1

 

To the extent the issues before us concern statutory interpretation, i.e., a legal standard, we note:

 

[A]n administrative agency’s interpretation [of a statute] is be to given

‘controlling weight unless clearly erroneous.’ However, when an

administrative agency’s interpretation is inconsistent with the statute itself,

or when the statute is unambiguous, such administrative interpretation

carries little weight. Appreciating the competence and knowledge an

agency possess in its relevant field, our Court [has] opined that an appellate

court ‘will not lightly substitute its judgment for that of a body selected for its

expertise whose experience and expertise make it better qualified than a

court of law to weigh facts within its field.’ Moreover, we have emphasized

that this high level of deference is especially significant in the complex area

of labor relations.  Lancaster County v. PLRB, ___ Pa. ___, 94 A.3d 979, 986 (2014) (quotations and

citations omitted).

 

Although the Board’s interpretation of the statute is consistent with [the statute], and  thus should be given due deference, the Commonwealth Court effectively substituted, without justification, its own judgment [over that of the agency] .  See Lancaster County, ___ Pa. at ___, 94 A.3d at 986.  The Commonwealth Court’s holding. . . contravenes the plain language of [the statute] , and since there is no indication the Board’s interpretation is clearly erroneous, it should be given controlling weight. See id.

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arbitration - NAF designation - severability

Wert v. Manor Care of Carlisle – Pa. Supreme Court – 10-27-15

 

http://www.pacourts.us/assets/opinions/Supreme/out/J-24-2015oajc%20-%201024134215570705.pdf?cb=1

 

 

Golden Living Center - Gettysburg et al. (“Appellants”) appeal the Superior Court’s decision affirming, in relevant part, the trial court’s order overruling Appellants’ preliminary objections seeking to compel arbitration and reserving for trial the underlying

negligence action filed by Evonne K. Wert (“Appellee”), daughter of Anna E. Kepner (“Decedent”) and executrix of Decedent’s estate. For the following reasons, we affirm the order of the Superior Court and remand to the trial court for further proceedings

consistent with this decision.

 

The following issues of first impression have been presented before this Court:

 

(a) Whether the Superior Court’s decision in Stewart v.

GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Super. 2010), holding that the

NAF Designation voided an identical Arbitration Agreement, was

incorrectly decided and should be reversed, where there is no evidence

indicating that the NAF designation was integral to the Agreement?

 

(b) Whether the Court may ignore undisputed testimonial evidence that

the party seeking to void the Agreement did not consider the NAF

Designation to be an “integral part” of the Arbitration Agreement (because

she did not bother to read the agreement)?

 

Wert v. ManorCare of Carlisle PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per curiam

order) (footnote omitted).

 

Pursuant to the reasoning of the Stewart court and the majority of our sister jurisdictions, we find that, post-consent decree, Section five of the FAA cannot preserve

NAF-incorporated arbitration agreements unless the parties made the NAF’s availability  non-essential by specifically varying the terms of its procedure.17 Regardless of

whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary. The

parties here agreed that any disputes “shall be resolved exclusively by binding arbitration to be conducted . . . in accordance with the [NAF] Code of Procedure, which is

hereby incorporated into this Agreement[.]” R. 348a (emphasis added).

 

We therefore find the provision integral and non-severable. Doing otherwise would require this Court to rewrite the Agreement. Underlying FAA policy, as interpreted by the Supreme Courtin Marmet, does not mandate a different result because our conclusion is based on settled Pennsylvania contract law principles that stand independent of arbitration.

 

UC - late appeal - confusion - UCSC mishandling - nunc pro tunc allowed

Victoria v. UCBR – Cmwlth. Court – October 14, 2015 – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1809CD14_10-14-15.pdf?cb=1

 

Because the current status of the claimant’s case was “entirely unclear” due to numerous and sometimes conflicting notices, the Court found “persuasive a recent decision by this court, Walsh v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374” and held that  as a result of the service center’s mishandling of her claim, the claimant was understandably confused which led to “misstep[s] in her attempts to navigate her way through the Service Center’s errors.”

 

The court held that the circumstances constituted a breakdown in the administrative process and allowed the claimant’s untimely appeal.10  10 See also Carr v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 662 C.D. 2014, filed December 19, 2014), 2014 Pa. Commw. Unpub. LEXIS 728   The UCSC mishandling of the claim constitutes a breakdown in the administrative process warranting a nunc pro tunc appeal.

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An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

consumer - Telephone Consumer Protection Act - standing - regular user

Leyse v. Bank of America National Assn. – 3d Circuit – October 14, 2015

 

http://www2.ca3.uscourts.gov/opinarch/144073p.pdf

 

A “regular user” of a phone line, such as the roommate of the intended recipient of a robocall advertising for credit cards, held to have  standing to sue under the TCPA, 47 USC 227, even though the roommate was not the “called party” or “intended recipient.”

 

The TCPA, 47 U.S.C. § 227, as well as its associated regulations prohibits any person from, among other things, “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the FCC.”

 

The court held that the roommate came within the “zone of interests’ that the TCPA was meant to protecr, given the interests and purposes of the statute.  It held that the evidence made it  “clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion ofprivacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.

wages - payroll records - injunction - pre-emption

Martinez v. CFM Corp. – Pa.Superior – October 7, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A19003-15o%20-%201023867985473186.pdf?cb=1

 

Trial court not pre-empted by federal law from enjoing payroll services firm from issuing new W-2 forms for class of attendant caregivers for MA recipients.  Class alleged screw-up of payroll records and violations of Wage Payment and Collection Law and contract violations.

 

UC - willful misconduct - absence - pre-trial incarceration

Miller v. UCBR – Cmwlth. Court – October 9, 2015 –


order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1

 

opinion 
http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14_10-9-15.pdf?cb=1

 

Case remanded where claimant was absent from work for two weeks during pre-trial incarceration on charge of violation of his probation, where

 

            - claimant, by his wife, gave employer notice of the incarceration

 

            - claimant was found not guilty of having violated his probation

 

“Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary.” Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). Factors that are considered in determining whether absenteeism constitutes willful misconduct are: (1) excessive absences; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of existing company rules, regulations, or policies with regard to absenteeism; and (5) disregard of warnings regarding absenteeism. Petty v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

 

The predominate issue in this case . . ..is whether Claimant had good cause for the absences so as to preclude or negate a finding of willful misconduct. See Medina v. UCBR, 423 A.2d 469, 471 (Pa. Cmwlth. 1980). The concept of “good cause” has been characterized as an action of the employee that is justifiable or reasonable under all the circumstances.   “Absence from work due to pre-trial incarceration is not, itself, willful misconduct.” Bruce v. UCBR, 2 A.3d 667, 671 (Pa. Cmwlth. 2010) (citing Hawkins, 472 A.2d at 1192).

 

Pursuant to Hawkins, Wertman, and Bruce, the dispositive issue in this case is whether Claimant violated his probation. . . . The docket entries are vague and do not demonstrate conclusively that Claimant was found not to have violated the terms of his probation.

Here, the Board disregarded Claimant’s testimony, determined for itself that Claimant violated probation, and, in doing so, overlooked the critical fact that a criminal trial court had already ruled on the probation case.  Notably, the Board did not make any specific credibility determination with respect to Claimant’s testimony that the criminal trial court found that he did not violate the terms of his probation. Where the Board fails to make necessary findings and credibility determinations, we must remand to the Board.

 

Accordingly, we vacate the Board’s order and remand for the Board to determine the credibility of Claimant’s testimony that the criminal trial court found that he did not violate his probation and for additional finding(s) based upon that credibility determination. Because the outcome of the criminal trial court case is absolutely vital to determining whether Claimant violated his probation, on remand, the Board, on its own or on further remand to a referee, shall provide Claimant with the opportunity to submit court documentation – e.g., a court order, a hearing transcript, etc. – to prove that the trial court found that he did not violate probation. . . . .The Board shall then issue a new decision that accounts for its credibility determination and additional finding(s) of fact.

 

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Pa. R.A.P.  3716; 210 Pa. Code § 69.414 (a) Citing Judicial Opinions.  (a) Parties may...cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent.