UC - willful misconduct - lack of willfulness - health reasons for absence - unreasonable rule

Klampfer v. UCBR – Cmwlth. Court – February 1, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/540CD17_4-17-18.pdf?cb=2

Held:  Claimant not guilty of willful misconduct for violating an employer rule concerning absences, where

            - she recently had heart surgery

            - employer granted her FMLA leave

            - she called off work four (4) times within 90 days of her return to work, for legitimate health reasons, in violation of employer rule

            - employer rule did not exempt legit. health reasons from its rule

            - claimant was not able to get doctor’s note until the very day that employer terminated her

No willful misconduct

An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. UCBR, 703 A.2d 452, 459 (Pa. 1997). 

It is “undisputed here that claimant’s absences ere due to illness.”    “[T]he law is clear that absence due to illness is not willful misconduct.” Green v. UCBR, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. UCBR, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, we do not discern willful misconduct based on the policy violation alone. Green.   

Here, as in Green, the Court did not discern any element of “willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. UCBR, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. UCBR, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. That Manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.  

In addition, a claimant with a documented illness has good cause for her absences. See, e.g., Phila. Parking Auth., 1 A.3d at 968 (“Physical illness can constitute good cause for a claimant’s noncompliance with an employer’s directive.”).   Moreover, Claimant’s uncontradicted testimony is sufficient evidence to establish good cause. Roberts v. UCBR, 977 A.2d 12 (Pa. Cmwlth. 2009) (reversing Board; holding claimant had good cause for rule violation under the circumstances based on claimant’s uncontradicted testimony). A claimant is not required to produce medical testimony to substantiate her illness; her own uncontradicted testimony is competent evidence of her illness. Phila. Parking Auth., 1 A.3d 965

Unreasonable application of employer rule

A claimant’s violation of an employer’s sick leave policy may be valid cause for discharge, but not for a denial of UC benefits. Phila. Parking Auth. v. UCBR  (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition). In Philadelphia Parking Authority, the claimant reached her maximum sick leave under the policy, such that additional sick days led to discipline. As a result, she requested and received approved FMLA leave. Nonetheless, the employer discharged her for noncompliance with its sick leave policy. In concluding the claimant did not commit willful misconduct, we explained, “apply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5. The Policy here permits the discharge of an employee who is ill four times within a 90-day period regardless of the circumstances. Claimant is recovering from open-heart surgery. Claimant was absent because of illness four times in the two weeks following her medical leave. In light of these circumstances, Employer did not prove Claimant’s absences rose to the level of willful misconduct. Runkle; Green.

And because Claimant’s absences due to illness do not show a deliberate disregard for Employer’s interests, the Board erred as a matter of law in determining that Claimant’s four call offs within 90 days constituted willful misconduct.

UC - indpt. contractor - self-employment - claimant not self-employed

HPM Consulting v. UCBR – Cmwlth. Court (2-1) – April 13, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/652CD17_4-13-18.pdf?cb=1

Held:  Claimant, a safety consultant, not self-employed, despite written agreement stating that he was an independent contractor. 

Presumption that individual is an employee

“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 4 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).

“The purpose of Section 4(l)(2)(B) [of the Law] ‘is to exclude independent contractors from coverage.’ Beacon Flag Car Co., Inc. (Doris Weyant) v. Unemployment Comp[.] [Bd.] of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). ‘This provision presumes that an individual is an employee.’ Id. However, ‘this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of [his] service and that, as to such service, was customarily engaged in an independent trade or business.’ Id. ‘Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.’ Id. Minelli v. UCBR, 39 A.3d 593, 595-96 (Pa. Cmwlth. 2012).

The employer did not overcome the strong presumption of Claimant’s status as an employee. See Famularo Catering, Inc. v. Dep’t of Labor & Indus., 125 A.3d 866, 869 (Pa. Cmwlth. 2015) (quoting Electrolux Corp. v. Dep’t of Labor & Indus., Bureau of Employer Tax Operations, 705 A.2d 1357, 1359–60 (Pa. Cmwlth. 1998) (“[A] person receiving remuneration for services rendered is presumed to be employed and therefore to have ‘employment’ within the meaning of the [Law] . . . .”)). “[T]he record here lacks any evidence that Claimant customarily engaged in an independent business . . . .” Jia v. UCBR, 55 A.3d 545, 549 (Pa. Cmwlth. 2012). “Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence.” Id. “The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.” Id.

Agreements not dispositive

The Commonwealth Court has “repeatedly held that the existence of an independent contractor agreement is not dispositive of the work relationship,” Lello v. UCBR,  59 A.3d 1153, 1159 (Pa. Cmwlth. 2013).  Nor is the fact that the claimant did not receive a W-2 form dispositive of the issue.   In fact, the contracts here “contain ample evidence supporting Claimant’s presumptive employee status which HPM, who had the burden, did not overcome. For example, the contracts specified Claimant’s hourly rate of pay as well as his overtime rate of pay, and per diem expenses. . . ..  In addition, the contracts expressed that Claimant’s home trips “will be scheduled with approval from the job site” and he consented to drug testing at the jobsite. . . . Further, they provided that Claimant was responsible for his steel tip boots and clothing but would be furnished all necessary equipment at the job site.

UC - determination - reopening/revision - no time limit

Narducci v. UCBR – Cmwlth. Court – 4-14-18 – reported, for publication - 3-judge panel

http://www.pacourts.us/assets/opinions/Commonwealth/out/841CD17_4-4-18.pdf?cb=1  (22 pp.)

Held:  Department had jurisdiction to re-open a case ten (10) months after it had awarded claimant UC benefits, to reverse its initial determination, and to impose a fault overpayment. Employer got notice of initial application for benefits, but did not challenge the claim in any way at that time.   Instead, more than 15 days after receiving the notice, the employer requested relief from charges, based on allegations that on their face would constitute willful misconduct.  Claimant had told the UCSC that he was out of work because of lack of work and was granted benefits because his application was facially valid.   After the Department heard from the employer, it issued a revised determination, holding that claimant was ineligible because of willful misconduct and imposing a fault overpayment.   Claimant challenged the revised determination as being beyond the applicable time limits and thus outside of the jurisdiction of the Department.  The Court rejected that argument, holding gthat “because the Department does not have a specific time limit during which it must issues notices of determination,  it....had jurisdiction to issue” a revised determination in this case.”

The Court discussed the applicable law in considerable detail and summarized it as follows:

[U]nder Section 501 [43 P.S. sec. 821] of the Law, when a claim is filed, the following is to occur:

            · Employer is to receive notice that a claim is filed, and if it opposes the grant of benefits, employer should provide information within 15 days as to why benefits should not be granted.

            · If an employer does not provide information within 15 days giving reasons why the claim should not be granted, the following is to occur:

                        ·  If the claim is facially valid, then benefits can be granted without a notice of determination being issued;

                        · If the claim is not facially valid and denied, then a notice of determination is issued from which a claimant can take an appeal.

            · No notice of any determination is required to be given to an employer who has not provided information that the claimant is ineligible.

            · If an employer files information after 15 days that claimant should be declared ineligible for benefits, then the employer is entitled to a notice of determination regarding its challenge to claimant’s unemployment eligibility.

            · The Department has no time limit to make a revision to an eligibility determination based on employer’s information that a claimant is not eligible for UC benefits.

UC - late appeal - life events

Carney v. UCBR – Cmwlth. Court – January 19, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/623CD17_4-3-18.pdf?cb=2

Held:  Pressure of the particular life events in this case (birth of child, demands of starting a business) are not sufficient to excuse an untimely appeal.

Timely appeal is jurisdictional -- Failure to file a timely appeal as required by Section 501(e) of the Law is a jurisdictional defect. Russo v. UCBR, 13 A.3d 1000 (Pa. Cmwlth. 2010). The time limit for a statutory appeal is mandatory; it may not be extended as a matter of grace or indulgence. Id.

Exceptions - To justify an exception to the appeal deadline, Claimant must demonstrate that his delay resulted from extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances relating to Claimant himself. See id. This is an extremely heavy burden. Blast Intermediate Unit No. 17 v. UCBR, 645 A.2d 447 (Pa. Cmwlth. 1994); Reed v. UCBR, 406 A.2d 852 (Pa. Cmwlth. 1979).

Failure to notice appeal deadline - A claimant’s failure to notice the appeal deadline in a UC determination does not constitute a non-negligent circumstance justifying an untimely appeal. Reed; Delaney v. UCBR, 368 A.2d 1351 (Pa. Cmwlth. 1977). Thus, Claimant’s explanation that he failed to notice the appeal deadline in the determination he received from the Department is legally insufficient to excuse his failure to file a timely appeal.

Pressure of claimant’s particular life events not sufficient - The pressure of many life events is likewise insufficient to excuse an untimely appeal. This Court consistently rejects such excuses. See, e.g., Constantini v. UCBR, 173 A.3d 838 (Pa. Cmwlth. 2017), (ongoing legal issues, home computer network issues, and medical emergency appointments); Maloy v. UCBR (Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), 2016 Pa. Commw. Unpub. LEXIS 271 (unreported) (dealing with brother’s death, moving, and caring for daughter and sick mother); Burgher v. UCBR (Pa. Cmwlth., No. 1929 C.D. 2014, filed July 7, 2015), 2015 Pa. Commw. Unpub. LEXIS 461 (unreported) (anxiety and stress from layoff); Rabe v. UCBR (Pa. Cmwlth., No. 1785 C.D. 2013, filed February 24, 2014), 2014 Pa. Commw. Unpub. LEXIS 115 (unreported) (financial stress and multiple pending court cases); Menges v. UCBR (Pa. Cmwlth., No. 2230 C.D. 2009, filed April 22, 2010), 2010 Pa. Commw. Unpub. LEXIS 254 (unreported) (death in the family and lingering effects of a medical condition). We cite these decisions as persuasive. See 210 Pa. Code §69.414(a).

Major life events may excuse late appeal – “We do not suggest that a major life event can never furnish a sufficient non-negligent reason to allow an untimely appeal. See, e.g., Cook v. UCBR, 671 A.2d 1130 (Pa. Cmwlth. 1996) (en banc) (claimant showed non-negligent extraordinary circumstances justifying a late appeal, where he filed four days late because on the deadline for the appeal, he was hospitalized in a cardiac care unit after a collapse).”

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

UC - Fabric decision - separation from part-time job

Von Dehn v.  UCBR –Cmwlth. Court – April 2, 2018 – to be published

http://www.pacourts.us/assets/opinions/Commonwealth/out/1211CD17_4-2-18.pdf?cb=1

Held:  Claimant who

  - was laid off from his full-time union job, and then

  - worked one 4-hour shift at an intermittent part-time job, and

  - told PT employer not to schedule future work, because it would interfere with being called back for his FT job

was eligible for  benefits, under UCBR v. Fabric, 354 A.2d 905 (Pa. Cmwlth. 1976).

Fabric

When a claimant who is eligible for UC benefits by reason of separation from full-time employment experiences a subsequent separation from part-time employment, “he is rendered ineligible for further benefits only to the extent that his benefits were decreased by virtue of his part-time earnings.” UCBR v. Fabric, 354 A.2d 905, 908 (Pa. Cmwlth. 1976). It is the Board’s burden to “establish that a claimant’s actual benefits would be increased by virtue of the loss of a part-time job. In other words, the part-time job must have yielded income in excess of the partial benefit credit … before a claimant can be denied any benefits because of a voluntary separation.” Id. at 907.

The reason for the separation from part-time employment is irrelevant to the eligibility analysis.  [emphasis added] Whether the claimant is laid off, quits voluntarily, or is fired for willful misconduct, the analysis is the same. See Richards v. UCBR, 480 A.2d 1338 (Pa. Cmwlth. 1984); Walsh v. UCBR  (Pa. Cmwlth., No. 1248 C.D. 2012, filed May 13, 2013), 2013 Pa. Commw. Unpub. LEXIS 374 (unreported). In such a situation, a determination of whether the claimant had a necessitous and compelling reason for leaving his part-time position has no place in the analysis of his eligibility for UC benefits.

Here,  the Board did not calculate Claimant’s partial benefit credit, nor did it compare that amount to Claimant’s part-time earnings from Camp Bow Wow, the PT employer  Thus, the Board could not and did not sustain its burden of demonstrating that Claimant’s separation from Camp Bow Wow rendered him ineligible for UC benefits. Moreover, the record indicates Claimant’s earnings from Camp Bow Wow in 2016 could not have affected the amount of UC benefits to which he was entitled as a result of his layoff by Full-Time Employer.

UC - willful misconduct - violation of employer rule - report arrest "immediately"

Sipps v. UCBR – Cmwlth. Court – March 26, 2018 - published

http://www.pacourts.us/assets/opinions/Commonwealth/out/564CD17_3-26-18.pdf?cb=1

Held:  Claimant guilty of willful misconduct for violating employer rule about “immediately” reporting an arrest, where he was released from incarceration at 10:00 p.m. one day and did not report his arrest until 7:30 p.m. the next day.  Employer’s facility (a security company) was open 24 hours/day.  The court affirmed the UCBR decision, holding that “immediately” meant as soon as possible.

UC - late appeal - failure to report change of address

Duhigg v. UCBR – Cmwlth. Court – December 13, 2017

order to report opinion            http://www.pacourts.us/assets/opinions/Commonwealth/out/412CD17ORD_3-20-18.pdf?cb=1

opinion                                  http://www.pacourts.us/assets/opinions/Commonwealth/out/412CD17_3-20-18.pdf?cb=2

Held:  Claimant’s appeal rejected due to untimeliness, resulting from “her own failure to notify the Department of her changed address” and, hence, her lack of notice of the determinations.

From the opinion:

Mandatory time-limit on appeal period

Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith. 43 P.S. §821(e).

“This fifteen-day time limit is mandatory; if an appeal is not timely filed within the specified time period, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter.” McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006) (citation and internal quotation marks omitted).

In certain instances, this limitation can be waived if a claimant “presents adequate excuse for his delay; however, the claimant carries a heavy burden in such cases and is required to prove more than mere hardship . . . .” Staten v. UCBR, 488 A.2d 1207, 1209 (Pa. Cmwlth. 1985). If the claimant meets that burden, a nunc pro tunc appeal may be allowed if there are “extraordinary circumstances involving fraud or some breakdown in the administrative process caused by the delay in filing.” McClean, 908 A.2d 959. Our Supreme Court has explained that an administrative breakdown occurs “where an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corp. v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000). 

Presumption of receipt of notices

“Notices . . . to unemployment claimants which state the last day to file an appeal therefrom and which are properly addressed and not returned by the postal authorities are presumed to be received, and a claimant's appeal which is not filed within fifteen calendar days after notice of the action was mailed to a claimant's last known address is not timely filed. Without proof of fraud or its equivalent, there is a presumption of regularity of the acts of public officials such as unemployment compensation authorities. Because appeal provisions of [the] Law are mandatory, claimants carry a heavy burden to justify untimely appeals and, absent proof of fraud, cannot prevail. Something more than mere hardship is necessary to justify an extension of time, or its equivalent allowance of the act nunc pro tunc. Exceptions have been recognized, for example, where the presence of fraud or its equivalent is shown, or where a person is misled by an authorized official.”  Ferraro v. UCBR, 464 A.2d 697, 698-99 (Pa. Cwmlth. 1983).

Here, the untimeliness of Claimant’s appeal resulted from her own failure to notify the Department of her changed address.  No evidence of record exists to suggest that Claimant notified the United States Postal Service of her relocation to take advantage of its mail forwarding services. The record also fails to reveal any fraud, misrepresentation, or neglect of the Department.  Therefore, the untimeliness of Claimant’s appeal was not caused by a breakdown of the administrative process, and nunc pro tunc relief is not appropriate in this case.

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corporations - corp. officer liability - participation theory

B & R Resources  v. Dept. of Envir. Protection – Cmwlth. Court – 3-15-18

http://www.pacourts.us/assets/opinions/Commonwealth/out/1234CD17_3-15-18.pdf?cb=1

Under Pennsylvania law, a corporate officer can be liable in tort for his own wrongful conduct on behalf of the corporation, even though the corporation is not a sham and there is no basis for piercing the corporate veil. Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89-90 (Pa. 1983); Francis J. Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. 1997); Bank of Landisburg v. Burruss, 524 A.2d 896, 901 (Pa. Super. 1987).

This basis of individual liability, known as the participation theory, is predicated on the corporate officer’s own actions and participation in the corporation’s wrongful conduct, rather than the corporation’s status and his relationship to the corporation. Wicks, 470 A.2d at 89-90. In Wicks, our Supreme Court explained: “The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.” …

Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful acts. Therefore, corporate officers may be held liable for misfeasance. Nevertheless, corporate officers and directors may not be held liable for mere nonfeasance. Thus, the mere averment that a corporate officer should have known the consequences of the liability-creating corporate act is subject to a motion to strike for impertinence and proof of that averment alone is insufficient to impose liability.

UC - overpayment - fault - claimant's state of mind

Cumpston v. UCBR – Cmwlth. Court – March 12, 2018 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/849CD17_3-12-18.pdf?cb=1

Held:  Board’s finding that overpayment was due to claimant’s fault was “unsupported by either the record or [the Board’s] own factual findings.

The term “fault” in Section 804(a) of the Law is defined as “an act to which blame, censure, impropriety, shortcoming or culpability attaches.” . . . . A “blameworthy act requires a showing of the actor’s state of mind” and “embodies . . . knowing recklessness or gross negligence.” . . . .A finding of fault “requires conduct ‘of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.’” . . . . “Conduct designed improperly and intentionally to mislead [the Department] is sufficient to establish a fault overpayment.” . . . .  However, where the claimant’s failure to provide information is due to negligence, mistake, or confusion, he or she cannot be held liable for a fault overpayment . . . .

Here, the Board made no factual findings regarding Claimant’s state of mind; it merely found that she “did not disclose that she refused continued work in a different department.” . . . .This finding, however, is belied by the record. Although Claimant testified that she did not believe she was offered a job, the record establishes that she did, in fact, notify the Department of a discussion about continuing work in another department.  Claimant also testified to these facts at the hearing, and neither the referee nor the Board discredited that portion of Claimant’s testimony

Most significant, perhaps is the Board’s own finding, in addressing the penalty provisions of Section 801 of the Law, that Claimant “did not knowingly make a false statement” to the Department when she applied for benefits.

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

*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - sideline business - net income

Lerch v. UCBR – Cmwlth. Court – March 12, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/748CD17_3-12-18.pdf?cb=1

Held:  The UCBR improperly calculated claimant’s income from a sideline business by failing to deduct all of her reasonable business expenses, instead of the very limited ones authorized by 34 Pa. Code sec. 65.121, which had previously been held to be improper by two court decisions.  The case was remanded with directions to the Board to recalculate claimant’s UC benefits, consistent with the court holdings as to what is “net income.”

- The term “’net earnings’ must have its plain everyday meaning...[which is] what remains after deducting expenses.”

- “The Board is not free to continue following a regulation that an appellate court has deemed unauthorized.”

UC - able and available - sec. 401(d)(1)

Cotto v. UCBR – Cmwlth. Court – MARCH 9, 2018 – unreported memorandum opinion*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1486CD16_3-9-18.pdf?cb=1

The court affirmed the UCBR conclusion that the claimant did not show that she had an attachment to the job market,  in that she had failed to indicate what job that she could perform in which she could miss work on a regular basis, have a modified work schedule when she does attend work, attend frequent doctor’s appointments, and sleep as necessary throughout the day. R.R. at 179a. We discern no error in the UCBR’s conclusion.

Claimant’s restrictions so limited her availability “as to effectively remove [her] from the labor market.” Rhode, 28 A.3d at 243 (quoting Harwood, 531 A.2d at 826).   The court was sympathetic to Claimant’s health restrictions, but held that she did not produce any evidence of what job she is capable of performing within her restrictions or “that there is a reasonable opportunity for securing such work[.]”   The UCBR properly determined Claimant was not able and available for work. Rhode, 28 A.3d at 243.

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From the opinion

Section 401(d)(1) of the UC Law provides, in part, that ‘[c]ompensation shall be payable to any employee who is or becomes unemployed and who . . . [i]s able to work and available for suitable work.’ The burden of proving availability for suitable work is on the claimant. An unemployed worker who registers for unemployment is presumed to be able and available for work.  This presumption is rebuttable by evidence that a claimant’s physical condition limits the type of work he is available to accept or that he has voluntarily placed other restrictions on the type of job he is willing to accept. If the presumption of availability is rebutted, the burden shifts to the claimant to produce evidence that he is able to do some type of work and that there is a reasonable opportunity for securing such work.

‘The real question is whether [the c]laimant has imposed conditions on his employment which so limit his availability as to effectively remove him from the labor market.’ Harwood v. UCBR, . . . 531 A.2d 823, 826 ([Pa. Cmwlth.] 1987). Rhode v. UCBR, 28 A.3d 237, 242-43 (Pa. Cmwlth. 2011)  “‘[T]he determination of whether a claimant is available for work as required by Section 401(d)[(1)] of the Law is a question of fact for the [UCBR.]’” Craig v. UCBR, 442 A.2d 400, 401 (Pa. Cmwlth. 1982) (quoting Goodwin v. UCBR, 378 A.2d 1308, 1310 (Pa. Cmwlth. 1977)). Further, “the [UCBR] is the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. . . . Where substantial evidence supports the [UCBR’s] findings, they are conclusive on appeal.” Ductmate Indus., Inc. v.  UCBR, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted).

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - findings, reasons - both parties absent from hearing

Kremis v. UCBR – Cmwlth. Court – March 5, 2018 – unreported memorandum decision*

http://www.pacourts.us/assets/opinions/Commonwealth/out/1356CD17_3-5-18.pdf?cb=1

The court remanded the case for a) further findings of facts and reasons, so that the court could exercise appellate review OR b) order a new hearing, where

            - neither party attended the referee hearing

            - the referee based his decision, for the employer, solely on documents

            - the referee made only two findings of fact – 1) claimant work dates, and 2) that claimant quit his job

            - the referee did not offer any reasons for his finding that claimant quit his job.

From the opinion:

Absence of parties – Neither party appeared at the hearing.  “When that occurs, 34 Pa. Code sec. 101.51 provides:  If any party duly 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. In the absence of all parties, the decision may be based upon the pertinent available records. (Emphasis added.) See also Gadsden v. Unemployment Compensation Board of Review, 479 A.2d 74 (Pa. Cmwlth. 1984) (holding that 34 Pa. Code § 101.51, taken together with Section 502 of the Law,4 allows referees to decide the merits of a UC claim, even in the absence of both parties)

Findings and reasons:   “While 34 Pa. Code § 101.51 provides that in the absence of the parties, the Referee may make a decision based upon the pertinent available records, the Referee is still not excused from making findings and explaining the rationale for the determination. Eckert v. UCBR, 483 A.2d 1059 (Pa. Cmwlth. 1984). Where findings are not made which may be legally determinative of a claimant’s eligibility for unemployment benefits, it is not possible for this Court to perform appellate review. McGoldrick v. UCBR, 526 A.2d 461, 463 (Pa. Cmwlth. 1987). . . . Neither the Referee nor the Board explained why they accepted Employer’s version of events rather than Claimant’s version that he was terminated without just cause.”

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - willful misconduct - employer rule v. statute

Crabbe v. UCBR – Cmwlth. Court – February 28, 2018 – en banc – 28 pp.

http://www.pacourts.us/assets/opinions/Commonwealth/out/455CD16_3-5-18.pdf?cb=2

Held: Claimant committed willful misconduct by failing to get her background checks updated by the date specified in her employer’s regulations, July 1, rather than the deadline specified in the relevant statute, December 31. 

Majority -- The majority found that claimant, the manager for a Police Athletic League facility,  had waived the argument about the disparity between the ER rule and the statute and that, even if she hadn’t, she committed willful misconduct by violating the ER rule.  The majority relied heavily on the fact that claimant had received numerous reminders about the need to renew her background checks---even though date specified by the ER and the UC authorities was not consistent with the date in the relevant statute.

 Dissent---The two dissenters “would hold that in a willful misconduct case, the failure of the employer to explain why its new rule deviates from the predicate statutory requirements is fatal to its attempts to defeat unemployment compensation for the terminated employee. Stated differently, [they]I would reverse the denial of unemployment benefits because Employer failed to explain why its new rule was reasonable in light of the deviation from the predicate statutory requirements.” 

The dissent also noted that ‘[a]t the time of termination, Claimant had two of the three clearances required. Further, she had paperwork establishing that she applied for the third clearance. In fact, she applied with the help of her supervisor. Claimant physically received the last clearance after she was terminated. . . .However, there were no findings by the UC authorities, and hence no fact-based discussion by the Majority, as to why Claimant’s “paper trail” or “proof of applications” did not satisfy Employer’s new rule. To the contrary, the UC authorities, after noting Employer’s “paper trail” rule . . . . found that Claimant was escorted from the building . . . .did not have all the clearances submitted to the employer as required under the Law.” . . . .The UC authorities made no findings whatsoever as to the dates of Claimant’s applications or her ‘paper trail.’”

The dissent also noted that the “ ‘proof of applications’ question was specifically raised in Claimant’s appeal to the Board, but the Board never answered it. . . . .(“Claimant had previously been told that as long as she documented her continuing efforts to get the certification, she would not be terminated. [Employer] terminated her despite this promise.”). This unexplained gap in factual findings, together with the referee’s erroneous legal statement as to the statutory compliance date for Claimant, cause real concern whether the UC authorities’ misunderstanding of the predicate statutory requirements clouded their judgment as to conduct amounting to willful misconduct.”

Without citing any supporting case law, both the dissent and majority recognized that “an employer’s prerogative to impose rules which are more stringent than those set by the General Assembly.”

employment - licensure - cosmetologist - criminal conviction - mitigating evidence

Bentley v. State Board of Cosmetology – Cmwlth. Court – February 28, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/648CD17_2-28-18.pdf?cb=1

Held:  Decision of Board suspending cosmetologist’s license for three years reversed and case remanded, with directions to the Board to consider the unrebutted evidence in mitigation that she presented.

Employee has been licensed since 2007.  In 2013 and 2014, she was convicted of felony drug offenses, for which she served two years in prison.  She disclosed the convictions to the Board.  She was re-employed within a couple of months after her release.   

A year after her release, the Board directed her to show cause why her license shouldn’t be suspended.  Her current employer offered strong supportive evidence.  The Board relied solely on the criminal records.  The hearing examiner found her credible and entered eleven (11) findings about the mitigating evidence.  The Board did not adopt any of the findings, stating only that the mitigating evidence was “modest” and otherwise giving it no consideration.   The Board did not explain if it disagreed with the mitigation findings or why it did not adopt them.  

A professional licensing board may use a hearing examiner to take evidence, but the ultimate fact finder is the board. Pellizzeri v. Bureau of Professional and Occupational Affairs, 856 A.2d 297, 301 (Pa. Cmwlth. 2004). An administrative agency is not required to adopt the hearing examiner’s proposed findings of fact. See Bucks County Public Intermediate Unit No. 22 v. Department of Education, 529 A.2d 1201 (Pa. Cmwlth. 1987). However, in reaching its decision, the Board must review the entire record and consider all evidence, including evidence of mitigating circumstances. See Markel v. Bureau of Professional and Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and Salespersons, (Pa. Cmwlth., No. 1800 C.D. 2013, filed May 8, 2014) (unreported). Here, the Board’s adjudication recited that it “reviewed the entire record,” but its “conclusory recital cannot be reconciled with the Board’s adjudication, which does not address the hearing examiner’s extensive findings on and discussion of  the mitigating evidence.”

Before the Board can suspend a cosmetologist’s license, it must give the person notice of the charges and the opportunity for a hearing. See Section 13(a) of the Beauty Culture Law, 63 P.S. §519(a). 4 The purpose of the hearing is to allow licensees an opportunity to “defend against the allegations in the Order to Show Cause or to present evidence in mitigation of any penalty which may be imposed upon [them] or any of [their] licenses, certifications, registrations, permits or other authorizations to practice [cosmetology].” Order to Show Cause, 2/29/2016, at 5-6; R.R. 6a-7a (emphasis added). Where a licensee presents mitigating evidence, the Board must consider that evidence. See Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100, 109 (Pa. Cmwlth. 2012) (when imposing discipline, Board must compare mitigating evidence of record to seriousness of misconduct). The procedures in the Beauty Culture Law apply even though the substantive basis for the Bureau’s enforcement action was CHRIA. The Board suspended Bentley’s license under Section 9124(c)(1) of Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §9121 et seq. , which is a general statute that applies to every Pennsylvania licensing agency.

By contrast, the statute by which the employee holds a license is the Beauty Culture Law, and it authorizes a license suspension only for misconduct related to the practice of cosmetology.  63 P.S. §519(a) (emphasis added). This has been construed to mean that a cosmetologist’s “license can be revoked ‘for gross incompetency or dishonest or unethical practices’ but, like the [Barber License] Law, does not include any reference to revocation for criminal convictions.” Kirkpatrick v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 117 A.3d 1286, 1293 (Pa. Cmwlth. 2015) (internal quotation omitted).   

CHRIA is a general law that authorizes, but does not require, an agency to suspend a license upon the licensee’s felony conviction. CHRIA does not provide standards for the exercise of the agency’s discretion under Section 9124(c)(1). By contrast, the specific, and more relevant statute, is the Beauty Culture Law, and it does not authorize any discipline for criminal convictions unrelated to the practice of the profession. This makes a licensee’s evidence of mitigating circumstances critical where presented.

Here, the Board did not take any steps to sanction the employee immediately upon her conviction. Instead, it waited for over a year after her release from prison to take any action, from which it had the discretion to forbear. The Board’s capricious disregard of the mitigation evidence constitutes a violation of its responsibility to review, with care, such evidence.   Accordingly, the court vacated the Board’s adjudication and remanded the case tothe Board to consider the evidence of mitigation.

consumer - UTPCPL - non-resident plaintiff

Danganan, et al. v. Guardian Protection Services – Pa. S.Ct. – February 21, 2018

http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Questions%20Answered%20%2010343689633251610.pdf?cb=1

Non-resident plaintiff permitted to sue business headquartered in Pennsylvania, despite lack of nexus between this state and the transaction/injury in question. 

Plaintiff’s claims were brought exclusively under the Pa. consumer protection law, 73 P.S. 201-1, et seq., under which there is “no textual basis” for imposing any nexus requirement.  There are no residency or geographic restrictions in the statutory definitions of “person” or “trade and commerce.” 

In this case, a homeowner in Washinton, D.C., entered into a three-year contract with a Pennsylvania company for home security services.  Before the end of the contractual term, the homeowner moved to California and notified the company of his intent to cancel the contract.   When the company refused to honor the cancellation and continued to bill the homeowner, the latter sued in CCP Philadelphia.  The company moved to dismiss the case, claiming that non-Pennsylvania residents could only sue under UTPCPL if there was a sufficient nexus between the transaction/injury and the forum state (Pennsylvania), such that the improper conduct primarily and substantially occurred in Pennsylvania.  The Court rejected this position, as set out above.

contracts - statute of limitations - contract under seal

Driscoll v. Arena – Pa. Super.  – February 12, 2018  (2-1)

http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010342570932914664.pdf?cb=1

Held:  A contract which does not have “seal” or “L.S.” or other language to indicate that it was signed under seal is subject to the regular contract statute of limitation of four (4) years,  42 Pa. C.S. 55245(a)(8) and not the extended 20-years SOL for contracts under seal, 42 Pa. C.S. 55245(b)(1).

That result is not changed by the inclusion of a paragraph entitled “waiver” which includes the following language: ““Borrower intends this to be a sealed instrument and to be legally bound thereby.”

The court recognized that contracts under seal are a “vestige of the past.” 

Ed. note:  What the court did not say is that the seal practice is a trap for all but the very most sophisticated parties, and that virtually no one has the slightest idea of what “seal” means or does.   This seems like something that could be challenged in an appropriate case.  See, e.g., Investors Loan Corp.v. Perez, 74 D & C 2d149 (C.P.Adams 1975).

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

debt collection - FDCPA - tine-barred debts - settlement offer "could" violated FDCPA

Tatis v. Allied Interstate, LLC – 3d Cir. – February 12, 2018

http://www2.ca3.uscourts.gov/opinarch/164022p.pdf

A collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt may violate the FDCPA general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

The collection letter stated as follows: “[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . . .”

Huertas v. Galaxy Asset Management, 641 F.3d 28, 32–33 (3d Cir. 2011) (per curian) stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so long as they do not threaten or take legal action. But the FDCPA sweeps far more broadly than the specific provision found in § 1692e(2)(A). It prohibits “any false, deceptive, or misleading representation” associated with debt-collection practices. 15 U.S.C. § 1692e (emphasis added). Accordingly, this appeal requires us to decide whether collection letters may run afoul of the FDCPA by misleading or deceiving debtors into believing they have a legal obligation to repay time-barred debts even when the letters do not threaten legal action.

Since Huertas, three other United States Courts of Appeals have addressed the question presented in this appeal. All three have determined that, even absent threats of litigation, it is plausible that offers to “settle” time-barred debts could mislead the least-sophisticated debtor.  McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014);  Buchanan v. Northland Group, Inc. held that a settlement offer could “plausibly mislead an unsophisticated consumer into thinking her lender could enforce the debt in court.” 776 F.3d 393, 395 10 (6th Cir. 2015);  Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 513 (5th Cir. 2016).  The court was persuaded that these decisions offer the best interpretation of the FDCPA.

The court reiterated what it said in Huertas and elsewhere: standing alone, settlement offers and attempts to obtain voluntary repayments of stale debts do not necessarily constitute deceptive or misleading practices. See Huertas, 641 F.3d at 32–33; see also Campuzano-Burgos, 550 F.3d at 299 (noting that “[t]here is nothing improper about making a settlement offer”).   Nor did the court impose any specific mandates on the language debt collectors must use, such as requiring them to explicitly disclose that the statute of limitations has run. 

  The court did not, therefore, hold that the use of the word “settlement” is “misleading as a matter of federal law.” Buchanan, 776 F.3d at 400 (Kethledge, J., dissenting). Rather, in keeping with the text and purpose of the FDCPA, “we merely reiterate that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt.”  See, e.g., Caprio, 709 F.3d at 149 (noting that “even the ‘least sophisticated debtor’ is expected to read any notice in its entirety”); Huertas, 641 F.3d at 33 (examining the specific language used in the letter from the perspective of the least-sophisticated debtor); Campuzano-Burgos, 550 F.3d at 300 (analyzing letters “as a whole”).

UC - willful misconduct - absences - illness

Klampfer v. UCBR -  Cmwlth. Court – 2-1-18 – unreported memorandum opinion**

http://www.pacourts.us/assets/opinions/Commonwealth/out/540CD17_2-1-18.pdf?cb=1

Claimant was terminated after she called off work four (4) times within two weeks of her return to work after undergoing open heart surgery and being on approved FMLA leave.   Claimant got a doctor’s note, stating that her absences were legitimate, but was unable to provide it until after she was terminated.   The ER policy stated that termination would result with 4 chargeable absences (anything other than a death in the family within a 90-day period.  ER policy did not specify a time limit on providing a doctor’s note, which would have resulted in collapsing the four absences into one.

Willful misconduct

The court held that, under the circumstances, claimant did not commit willful misconduct.

An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd. of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 459 (Pa. 1997).

Absence due to illness is not willful misconduct.

“[T]he law is clear that absence due to illness is not willful misconduct.” Green v. Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, there is no willful misconduct based on the policy violation alone. Green.

In this case, as in Green,  there was “ no willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green.   The fact that the manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.

The application of the ER policy is this case was unreasonable. Phila. Parking Auth. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition).   “[A]pply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5.

Good cause

The court went on to hold that, even though claimant’s actions did not constitute willful misconduct, it nevertheless recogniaed that a claimant with a document illness has goode cause  for non-compliance with an employer directive.

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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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

admin.law - credibility - review by factfinder who did not hear/see the evidence

J.K. v. Dept. of Human Services – Cmwlth. Court – January 30, 2018

http://www.pacourts.us/assets/opinions/Commonwealth/out/367CD17_1-30-18.pdf?cb=1

Generally, “[d]eterminations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. DPW, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does not observe the testimony that is the basis of the evidence, a more thorough review of credibility determinations is required. See McElwee v. SEPTA, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting such testimony seems especially pronounced where, as here, the trial court did not observe witness demeanor but, instead, merely reviewed the deposition transcripts and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be arbitrary. Id.