UC - late appeal - nunc pro tunc - USPS tracking number

Barsky v. UCBR – Cmwlth. Court – August 31, 2021 – reported, precedential

 

Held: UCBR erred in denying nunc pro tunc late appeal, where 

• there was no postmark or postage meter mark on envelope
• appeal received one day after last appeal date

So appeal did not satisfy any of the conditions of 34 Pa. Code 101.82(b) regarding filing appeal by mail, even though logical mailing date showed that appeal was mailed before final appeal date. Verch v. UCBR, 676 Al2d 1290, 1291-5 (Pa. Cmwlth. 1996).

 

But, UCBR capriciously disregarded tracking number evidence that, while insufficient to establish timeliness of appeal under sec. 101.82of UCBR regulations, was “certainly relevant to nunc pro unc relief, under the extraordinary circumstances of the case.” Case remanded for consideration of whether nunc pro tunc relief was warranted.

An appeal nunc pro tunc is only warranted in extraordinary circumstances “involving fraud or some breakdown in the court’s operation,” or where the delay is quotations omitted) (quoting Bass v. Cmwlth., 401 A.2d 1133, 1135 (Pa. 1979)). [W]here an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and [the] appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.  Id. In reviewing a request for nunc pro tunc relief on non-negligent grounds, “[t]he question of whether there are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal conclusion to be drawn from the evidence and is reviewable on appeal.” Harris v. Unemployment Comp. Bd. of Rev., 247 A.3d 1223, 1231 (Pa. Cmwlth. 2021) (quotingV.S. v. DPW, 131 A.3d 523, 527 (Pa. Cmwlth. 2015)). It is well settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. UCBR., 645 A.2d 447, 449 (Pa. Cmwlth. 1994).

The extraordinary/exceptional circumstances of this case included (1) an appeal filed by mail during the COVID-19 pandemic, during which significant backlogs and errors in USPS’s mailing operations occurred; (2) claimant’s CPA mailing the appeal from home due to an at-risk health condition; and (3) Claimant seeking UC benefits in the first instance as a result of Governor Wolf’s mandated closure of non-essential business. Clearly, the factual setting surrounding Claimant’s application for unemployment benefits and the filing of Claimant’s appeal was anything but ordinary, and it warranted a detailed review of all the evidence of record. 

USPS Tracking number - a tracking number is a federally established and reliable means of demonstrating exactly when a piece of mail is sent and received through USPS. . . .The tracking number is clearly a part of the record, with the number being printed under the barcode on the certified mail sticker on the front of the envelope containing Claimant’s appeal. . . . Indeed, in entering the tracking number into the USPS website, this Court was able to discern quickly and easily that the appeal was mailed on June 1, 2020, or earlier.  This information, coupled with witness testimony, may have been sufficient to permit Claimant’s appeal nunc pro tunc, but the Board did not engage in such an analysis.

Tax sale - RETSL - service of notice of sale - owner-occupied property - apparent or reputed owner

Gutierrrez v. Washington County Tax Claim Bureau – Cmwlth. Court – June 10, 2021 

Published, precedential opinion (after motion to publish granted)

 

Held: Tax sale of owner-occupied manuf. home (MH) voided due to failure of tax claim bureau (TCB) to make personal service of the notice of the tax sale, as required by RETSL (Real Estate Tax Sale Law), 72 P.S. sec. 5860.601 (a)(3).

 

Kudos to Dan Vitek of Community Justice Project for litigating this case and getting the opinion published.

 

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Facts: Seller of manuf. home failed to give notice of sale and change of ownership to proper authorities, nor did the Buyer, whom the trial court recognized was “[i]nexperienced and unwitting of real estate tax matters concerning mobile homes and possessing only a bare understanding of the English language.” 

When Buyer failed to pay taxes, TCB started tax sale proceedings, but sent all notices to the seller/prior owner.  Two notice were returned to the TCB. The TCB posted notices of the sale on the manuf. home. Buyer saw the notices but “was unable to read them and did not seek help in translating them.”

The trial court held that tax sale was valid and that personal service of the notice of sale could be waived, since Buyer was “neither an owner of record nor an apparent owner” under 72 P.S. sec. 5860.201 (“owner”), despite undisputed evidence that Buyer entered into a lease with the MH park owner, who had a copy of the lease. The only attempt at personal service was by knocking on the MH door at a time when Buyer was not at home.

From the opinion

The notice provisions of the Tax Sale law must be strictly construed – A presumption of regularity attaches to tax sale cases. However, once exceptions are filed, the burden shifts to the tax claim bureau to show that proper notice was given. In re Upset Sale Tax Claim Bureau McKean Cnty. on Sept. 10, 2007, 965 A.2d 1244, 1248 (Pa. Cmwlth. 2009). The Tax Sale Law’s notice provisions must be strictly construed and a tax claim bureau’s failure to comply with all the notice requirements ordinarily will nullify a tax sale. Cruder v. Westmoreland Cnty. Tax Claim Bureau, 861 A.2d 411, 415 (Pa. Cmwlth. 2004). 

Special notice requirements for owner-occupied property - Where owner-occupied property is at issue, Section 601(a)(3) of the Tax Sale Law provides that the notice described in Section 602 must be personally served on an owner-occupant at least ten days prior to the date of the actual sale by the sheriff. 72 P.S. § 5860.601(a)(3).  Section 601(a)(3)’s personal service requirement “expresse[s] a desire to provide a qualitatively different type of notice to an owner[-]occupant and afford such owner [with] increased protection by way of additional notice.” McKelvey v. Westmoreland Cnty. Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009). The attribution of enhanced importance to personal service for owner-occupied property requires a tax claim bureau to establish good cause for a waiver of the requirement of personal service.

The Buyer was an “apparent or reputed owner” of the property – The Buyer was not an “owner” of the property, because both the Seller and Buyer failed to provide the proper documentation of the transaction. However, Buyer was an “apparent or reputed owner. . .open, peaceable and notorious possession of the property, as apparent owner. . .or the reputed owner. . .thereof in the neighborhood of such property” and thus was entitled to personal service of the notice of the sale, 72 P.S. sec. 5860.102 (“owner). . . The accepted evidence establishes that Buyer is an apparent or reputed owner under Section 102’s definition of “owner.” The parties stipulated that the title issued by the Department described the mobile home that Buyer was living in and named her as its owner.  Additionally, there is no dispute that Buyer and her family openly reside in the mobile home located at the address of the property sold at tax sale. Further, the trial court summarized the parties’ stipulation that Buyer lived there and had a lot lease at a mobile home court. 

Actual notice does not negate the statutory requirement of personal service - Actual notice does not waive strict compliance with Section 601(a)(3)’s personal service requirement. Consequently, “unless a taxing bureau obtains an order waiving the personal service requirement for good cause shown, its failure to comply with [S]ection 601(a)(3) of the [Tax Sale Law] will render a tax sale invalid.” Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 952 (Pa. Cmwlth. 2015). . .

The TCB did not show good cause for waiving personal service of the notice of sale – Determination of good cause involves consideration of the facts of the case “in light of the fundamental purposes of the [Tax Sale] Law.”9 Appeal of Neff, 132 A.3d at 650.  “The primary purpose of tax sale laws is to ensure ‘the collection of taxes, and not to strip away citizens’ property rights.’” Id. at 650 [quoting Rice v. Compro Distrib., Inc., 901 A.2d 570, 575 (Pa. Cmwlth. 2006)].  In other words, the aim of these laws is not to punish taxpayers who did not pay taxes due to mere oversight or error. Appeal of Neff. Instead, the purpose is to protect local governments from persistent tax delinquents such that “failed attempts at personal service of notice may be, depending on the specific facts of the case, legally sufficient to obtain a waiver under Section 601(a)(3) of the Law.” Id. at 651. However, we must be mindful of the legislature’s heightened concern for owner- occupants being divested of the very property in which they are living. Id. at 646. In other words, someone’s home could be at stake. Id. at 651.  The TCB made only one attempt at personal service and should have been on notice that there was a new owner, the Buyer, since its two mailed notices to the Seller were returned with notations that they were “undeliverable.”

 

 

 

 

 

 

 

 

 

 

Evidence - immigration status - Pa. Rule of Evidence 413

Order https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104862828142846890.pdf?cb=1

 

Rule    https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104862828142846883.pdf?cb=1

 

Final Report https://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104862828142847021.pdf?cb=1

 

Rule 413. Evidence of Immigration Status

1. (a)  Criminal or Delinquency Matters; Evidence Generally Inadmissible. In any criminal or delinquency matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the offense, to show motive, or to show bias or prejudice of a witness pursuant to Rule 607. This paragraph shall not be construed to exclude evidence that would result in the violation of a defendant’s or a juvenile’s constitutional rights. 
2. (b)  Civil Matters; Evidence Generally Inadmissible. In any civil matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the action, or to show bias or prejudice of a witness pursuant to Rule 607.
3. (c)  Procedure. Unless a party did not know, and with due diligence could not have known, that evidence of immigration status would be necessary, the following procedure shall apply prior to any such proposed use of immigration status evidence: 
   1. (1)  The proponent shall file under seal and serve a written pretrial motion containing an offer of proof of the relevancy of the proposed evidence supported by an affidavit. 
   2. (2)  If the court finds that the offer of proof is sufficient, the court shall order an in camera hearing. 
   3. (3)  The court may admit evidence of immigration status pursuant to paragraph (a) or paragraph (b) if it finds the evidence is reliable and relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.
4. (d)  Voluntary Revelation. This rule shall not prohibit a person, or the person’s attorney, from voluntarily revealing his or her immigration status to the court.

Comment

Pa.R.E. 413 has no counterpart in the Federal Rules. This rule is modeled, in part, after Washington Rule of Evidence 413.

In practice, the introduction of immigration status has received heightened consideration in terms of relevancy and prejudice. See, e.g., Commonwealth v. Sanchez, 595 A.2d 617 (Pa. Super. 1991) (reference to defendant as an “illegal alien” was irrelevant and prejudicial). This consideration is warranted to avoid potential intimidation of witnesses for fear of deportation. See, e.g., 8 U.S.C. § 1227 (Deportable Aliens). This rule is intended to limit the admissibility of evidence of immigration status for purposes other than those stated in the rule. See, e.g., Commonwealth v. Philistin, 53 A.3d 1 (Pa. 2012) (discussing admissibility of immigration status for purpose of proving motive). Paragraphs (a) and (b) may serve as a basis for limiting discovery about immigration status.

This rule requires the proponent to seek pretrial approval prior to the introduction of evidence of immigration status. If evidence is admissible, the trial court may consider a cautionary jury instruction to ameliorate its prejudicial effect. See, e.g., Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014).

Nothing in this rule prohibits a court from unsealing a motion.

The procedure set forth in paragraph (c) is unnecessary for immigration status voluntarily revealed pursuant to paragraph (d). However, all other Rules of Evidence remain applicable. See, e.g., Pa.R.E. 402, 403.

Note: Adopted August 11, 2021, effective October 1, 2021. Committee Explanatory Report:

Final Report explaining the August 11, 2021 adoption of Rule 413 published with the Court’s Order at 51 Pa.B. __ (__ __, 2021).

 

SUPREME COURT OF PENNSYLVANIA COMMITTEE ON RULES OF EVIDENCE

FINAL REPORT1 

Adoption of Pa.R.E. 413

On August 11, 2021, upon recommendation of the Committee on Rules of Evidence, the Court ordered the adoption of Pennsylvania Rule of Evidence 413 governing the admissibility of evidence of immigration status. 

The Committee previously received a recommendation from the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness for changes to the Pennsylvania Rules of Evidence to limit the admissibility of a party’s or witness’s immigration status. In response, the Committee proposed amendment of the Comment to Pa.R.E. 401, see 49 Pa.B. 2218 (May 4, 2019), which received several comments concerning the need for a rule addressing specifically immigration status given that evidence of immigration status may be used for the purpose of intimidation.

Thereafter, the Committee proposed a standalone rule in the form of Pa.R.E. 413 to address the admissibility of evidence of immigration status. Similar to Washington Rule of Evidence 413, the standalone rule would have limited the admission of such evidence to prove an essential fact of, an element of, or a defense to, an action, or a party’s or witness’s motive. See 50 Pa.B. 5222 (September 26, 2020). Another function of the proposed rule would put the opponent on notice that a proponent intends to introduce evidence of immigration status. The opponent can then seek a pretrial ruling as to the admissibility of the evidence. This process would be similar to that employed by Pa.R.E. 404(b)(3) for notice in criminal cases for prior bad acts, but the notice would require the specific, rather than general, nature of any evidence of immigration status. Thereafter, the opponent could weigh whether to challenge the relevancy and potential prejudice of the evidence.

The Committee again received several responses to the proposal. A majority of respondents suggested a bifurcated rule similar to Washington Rule of Evidence 413, with differing provisions applicable to criminal proceedings and civil proceedings to permit admission only when immigration status is an essential fact of a party’s cause of action. Further, the waiver of advance notice should be restricted to when the moving 

1 The Committee’s Final Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee’s Comments or the contents of the Committee’s explanatory Final Reports. 

party did not know or, with due diligence, could not have known that immigration status would be an essential fact. Finally, the court should be required to conduct an in camera review, similar to Washington Rule of Evidence 413, and the review, together with the evidence or motion, should be sealed.

Based on these responses, the Committee revised proposed Pa.R.E. 413 to bifurcate the general exclusion of such evidence, together with exceptions, into paragraph (a) for criminal and juvenile matters and paragraph (b) for civil matters. Both paragraphs were revised to include exceptions “to show bias or prejudice of a witness pursuant to Rule 607.” Further, paragraph (a) included an additional exception so application of the rule in criminal or juvenile proceedings would not result in the violation of a defendant’s or a juvenile’s constitutional rights.

The Committee agreed with the respondents’ suggestion for a specific procedure for determining the admissibility of evidence of immigration status. Under Pa.R.E. 103, admissibility may be determined either by a pretrial motion in limine or contemporaneous objection in open court. However, experience informs that relying upon contemporaneous objections often cannot “unring the bell” of the issue being raised through the question posed. Moreover, offers of proof in open court, notwithstanding being outside the hearing of the jury, remain on the record and do little to assuage witness intimidation.

Therefore, largely structured after Washington Rule of Evidence 413(a)(1)-(4), paragraph (c) was added as a means for determining the admissibility of immigration status. The process would require a pretrial motion in limine filed under seal. Thereafter, the trial court could allow the evidence to be admitted if it was relevant and its probative value outweighed its prejudicial nature. The paragraph also contains an exception for when a party does not know, and with due diligence could not have known, that evidence of immigration status would be necessary at trial.

The Committee observed that two other jurisdictions, in their analogous evidentiary provisions, have included a provision allowing a party to waive the rule’s protection and reveal evidence of immigration status. See 735 Il.C.S. 5/8-2901(b)(3) (pertinently stating that evidence is admissible if “a person or his or her attorney voluntarily reveals his or her immigration status to the court”); Cal. Evid. Code § 351.3(b)(3), § 351.4(b)(3) (providing that, in civil actions other than for personal injury or wrongful death and in criminal actions, the statute does not “[p]rohibit a person or his or her attorney from voluntarily revealing his or her immigration status to the court”). 

Although evidence of immigration status has the potential for intimidation and prejudice, if such evidence is probative and the person whose immigration status is revealed does so voluntarily, then the proposed evidentiary and procedural safeguards appear unnecessary. Further, an exception for voluntary disclosure may lessen the

procedural burden on parties when immigration status is admissible pursuant to paragraph (a) or (b).

Therefore, the Committee revised the rule to add paragraph (d), which is modeled after California Evidence Code § 351.3(b)(3). Paragraph (d) contains several noteworthy aspects. First, it pertains to a personal revelation of one’s own immigration status, not another person’s immigration status. Second, the status must be revealed in court, not to sources outside of court. Cf. Pa.R.E. 803(25) (An Opposing Party’s Statement). Third, the procedure set forth in paragraph (c) is rendered unnecessary under the circumstances of paragraph (d), i.e., “this rule shall not prohibit.” A statement to that effect was added to the Comment with an observation that the other Rules of Evidence nonetheless remain applicable even if the procedure of paragraph (c) is not followed.

The Committee received a concern that a Rule of Evidence permitting the use of evidence of immigration status for impeachment purposes may open the door to additional discovery on that topic. Similarly, the respondent expressed concern that permitting evidence of immigration status to be admissible in court as an element of a defense in civil matters pursuant to paragraph (b) may have similar effect. The Committee is not insensitive to such concerns, but the Rules of Evidence are intended to regulate the admissibility of evidence in court proceedings, see Pa.R.E. 101, not the scope of discovery. Notwithstanding, a sentence was added to the Comment indicating that paragraphs (a) and (b) may serve as a basis for limiting discovery about immigration status; however, the procedural mechanism for doing so, i.e., a protective order, is not governed by the Rules of Evidence. 

This rule becomes effective October 1, 2021.

 

 

 

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employment - wages/hours - time spent on security screening is compensable under state wage/hour law

In re Amazon.com, Inc.  – Pa. Supreme Court – reported decision on certified question from 6^th Circuit - July 21, 2021

 

Majority https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020mo%20-%20104839808140967303.pdf?cb=2

dissent https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020do%20-%20104839808140911397.pdf?cb=1

dissent https://www.pacourts.us/assets/opinions/Supreme/out/J-76-2020do1%20-%20104839808140963694.pdf?cb=1

 

Contrast the U.S. Supreme Court decision in Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014). In Busk, the high Court ruled that time spent by Amazon warehouse workers in Nevada going through the same security screenings the employees in the present case were subjected to was not compensable under the federal FLSA. 

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We answer herein two certified questions from the United States Court of Appeals for the Sixth Circuit: (1) whether time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screening is compensable as “hours worked” within the meaning of the Pennsylvania Minimum Wage Act1 (“PMWA”)?; and (2) whether the doctrine of de minimis non curat lex,2 as described in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), applies to bar claims brought under the PMWA? Our reply to these questions is that time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screening constitutes “hours worked” under the PMWA; and there exists no de minimis exception to the PMWA. 

1 43 P.S. §§ 333.101-333.115.
2 Literally translated, this Latin phrase means: “The law does not concern itself with trifles.”. It is frequently referred to in legal vernacular simply as “de minimis.” Id. Pursuant to this principle, “courts disregard trivial  matters that serve merely to exhaust the court's time.” Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 810 A.2d 492, 504 n.20 (Pa. 2002).

 

employment - EMT - licensure - misstatement of fact on application - Dept. discretion as to penalty

Hynes v. Dept. of Health -  Cmwlth. Court – September 17, 2020 – unreported memorandum decision**

 

Held: Ever though applicant for EMT certificate admittedly failed to disclose a 20+ year-old convictions on his application, it was error for the Department of Health to deny his application and revoke his certification, because:

 

• “there is no material relevance between the convictions and his present ability to perform EMT duties
• Age of convictions – “Importantly, the conduct in question occurred 25 years ago”
• In spite of applicant’s conduct, the Dept. had discretion about the mature of the disciplinary action against applicant
• The Department “committed a manifestly unreasonable exercise of judgment” in revoking EMT certification, given applicant’s mitigating evidence

 

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

 

UC - referee decision - re-opening - good cause - written request

Massie v. UCBR – Cmwlth. Court – June 1, 2021 – reported decision

https://www.pacourts.us/assets/opinions/Commonwealth/out/902CD20_6-1-21.pdf?cb=1

 

 

Held: It was error for the referee to re-open a case after an initial hearing, at which only the claimant appeared, where the employer had a post-hearing oral (voicemail), pre-decision communication with the referee but did not

            - submit a written notice asking for the case to be re-opened

            - set out reasons for failure to attend that constitute “proper cause”

all of which is required by 34 Pa. Code sec. 101.24(a).

 

Reopening - The regulation at 34 Pa. Code §101.24(a) does not authorize a referee to reopen the record on her own motion. “Agencies and their agents have only those powers that are conferred on them by the legislature in their enabling statute or authorized regulations.” County of Allegheny Orphans’ Court/ v. UCBR, 220 A.3d 730, 736 (Pa. Cmwlth. 2019) The “authority to reopen the record and further develop the evidence in the interest of justice is not afforded to a referee.” Id. Rather, that authority has been conferred solely on the Board. Moreover, even assuming that a voicemail message constituted an “implicit” request to reopen the record, the request did not satisfy the regulation at 34 Pa. Code §101.24(a). A request to reopen the record “shall be in writing” and must explicitly recite the party’s good cause for missing the hearing.  The voicemail message in this case satisfies neither requirement. 

Willful misconduct/voluntary quit - It was error for the Referee to reopen the record sua sponte. County of Allegheny Orphans’ Court, 220 A.3d at 736. Further, “the referee is not the ultimate fact-finder to whom discretion in developing an adequate record may be implied.” Id. The Board has this responsibility. The Referee exceeded his authority in reopening the record on his own initiative. The Board erred in not limiting the record to the evidence admitted during the initial hearing, at which only the claimant appeared and gave evidence, none of which supported a factual finding that the claimant voluntarily quit his job or committed willful misconduct. 

UC - sec. 402 (e.1) - drug policy - marijuana prescription

Jack Lehr Electric v. UCBR – Cmwlth. Court – June 8, 2021 – reported opinion

https://www.pacourts.us/assets/opinions/Commonwealth/out/913CD20_6-8-21.pdf?cb=1

 

 

Held:  Claimant not disqualified under sec. 401(e.1) of the UC Law, 43 P.S. 802(e.1), even though he failed an employer drug test, where 

-claimant had a valid marijuana prescription and  patient ID card 

- claimant did not ingest marijuana while at work

- ER provided evidence that claimant was under the influence of marijuana while at work

- ER drug policy provides that “proper use” of prescription drugs is “exempt” from ER drug policy

 

tax sales - notice - due process - jurisdiction to order/confirm sale

In re Judicial Tax Sale – Lackawanna County – Cmwlth. Court – May 10, 2021

Held: Where there is evidence that proper notice of a tax sale was not given, or where there is doubt that it was given, failure to comply with additional reasonable efforts under 72 P.S sec. 5860.607a to give notice of tax sale deprives a court, ab initio, of jurisdiction to consider or order a judicial sale of property on account of non-payment of taxes.  Noncompliance with the law’s notice requirements under sec. 607a “is a jurisdictional defect that can void a judicial sale” – which defect can be raised at any time.

From the opinion:

Fundamental rights at issue – 

“Given the fundamental rights at issue when the government sells private property for nonpayment of taxes and the critical role compliance with the Law’s reasonable notice requirements plays in protecting those fundamental rights, Ms. Brown’s arguments that noncompliance with the Law’s requirements is a jurisdictional defect that can void a judicial sale are persuasive and supported by our caselaw. As we held in Manu, “[f]ailure to strictly comply with the service requirement[s] deprives the court of jurisdiction to authorize a sheriff’s sale.” 76 A.3d at 605-06. This is because “[s]trict compliance with the service requirement protects the procedural due process rights of all interested parties to notice and an opportunity to be heard and guards against deprivation of property without substantive due process of law.” Id. at 606 (emphasis added); see also Fraisar, 892 A.2d at 77 (“The rules governing service . . . [are] to ensure notice . . . .”). In cases where, as here, the sale of property is directed by the court of common pleas it is important for that court to “make ‘an independent inquiry’ regarding . . . strict compliance with the service requirement[s],” Manu, 76 A.3d at 605, in order to confirm that it has jurisdiction. . . .Further, the confirmation of proper service and notice is crucial in judicial sales because the statute of limitations to challenge such sales is a mere six months, as opposed to the six-year limitations period available to challenge upset tax sales. Absent jurisdiction, common pleas lacked the authority to approve the judicial sale of the property in the first instance.

Purpose of tax collection law is not to deprive citizens of their property

We must be cognizant that the purpose of the Law is to ensure the collection of taxes, not to deprive citizens of their property. Rinaldi, 22 A.3d at 315. These provisions “were never meant to punish taxpayers who omitted through oversight or error . . . to pay their taxes.” In re Return of Sale of Tax Claim Bureau, 76 A.2d 749, 753 (Pa. 1950). Our Supreme Court has stated that, over time, “taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen’s property to forfeiture for the non-payment of taxes.” Tracy v. Cnty. of Chester, Tax Claim Bureau, 489 A.2d 1334, 1339 (Pa. 1985) (emphasis added). “It is a fundamental provision of both our state and federal constitutions that no person shall be deprived of property except by the law of the land or due process of law,” which requires notice and an opportunity to be heard. Hess v. Westerwick, 76 A.2d 745, 748 (Pa. 1950). Such notice must be reasonable under the circumstances. Id. 

The General Assembly has established, via the Law, what notice is reasonably required prior to selling a property at tax sale. These notice requirements are mandatory and must be strictly construed. Mfrs. & Traders Tr. Co. v. Luzerne Cnty. Tax Claim Bureau, 56 A.3d 36, 39 (Pa. Cmwlth. 2012). One of these mandatory requirements is a tax claim bureau’s obligation to make reasonable efforts to find an owner pursuant to Section 607.1 when mailed notice is returned or when there is doubt that the owner received such notice. 

UC - voluntary quit - unjust accusations, abusive treatment, use of profanity

Spectrum Community Services, Inc. v. UCBR – Cmwlth. Court – May 24, 2021 – unreported memorandum decision**

Claimant held to have had necessitous and compelling reason to quit her job, where her employer had unjustly accused her of dishonesty and addressed her in abusive and profane manner over a period of time.

From the opinion –

Under Section 402(b) of the UC Law, “[w]here a claimant has voluntarily quit employment, in order to obtain benefits, [the claimant] must show that [the claimant] left [his or her] employment for necessitous and compelling reasons.” Collier Stone Co. v. UCBR., 876 A.2d 481, 484 (Pa. Cmwlth. 2005). Here, it is undisputed that Claimant voluntarily left her employment. Thus, the burden is on Claimant to show that she had a necessitous and compelling reason to do so. Latzy v. UCBR, 487 A.2d 121, 123 (Pa. Cmwlth. 1985). 

To satisfy this burden, Claimant must demonstrate that: “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve [her] employment.” Brunswick Hotel & Conf. Ctr., LLC v. UCBR, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Whether a claimant had necessitous and compelling reasons for terminating his employment is a question of law subject to review by this Court. Wise v. UCBR., 111 A.3d 1256, 1261 (Pa. Cmwlth. 2015). 

“Mere dissatisfaction with one’s working conditions does not constitute cause of a necessitous and compelling nature for terminating one’s employment.” Brunswick Hotel, 906 A.2d at 660. Likewise, “[p]ersonality conflicts, absent an intolerable work atmosphere, do not amount to a necessitous and compelling cause for leaving one’s employment.” Wert v. Unemployment Comp. Bd. of Rev., 41 A.3d 937, 940 (Pa. Cmwlth. 2012). However, the Court has recognized that “abusive conduct” may constitute a necessitous and compelling reason to voluntarily quit. First Fed. Sav. Bank v. UCBR., 957 A.2d 811, 816 (Pa. Cmwlth. 2008). This includes being called names or being “subject to criticism and ridicule from [a superior] that was uncalled for and incorrect.” Id. at 817. Similarly, an accusation of dishonesty or theft can serve as a necessitous and compelling reason to justify voluntarily quitting. Arufo, 391 A.2d at 45. Even “a single accusation, if the circumstances surrounding the incident warrant, may produce sufficient pressure to terminate employment that would compel a reasonable person to act.” Sol Neft Sports v. UCBR, 610 A.2d 539, 541 (Pa. Cmwlth. 1992) (emphasis omitted). 

In addition to the above cases, the Court relied heavily on Arufo v. UCBR, 391 A.2d 43 (Pa. Cmwlth. 1978) and Indiana Univ. of Pa. v. UCBR, 202 A.3d 195 (Pa. Cmwlth. 2019)

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

MDJ appeals - proof of service of notice of appeal - dismissal

Kelley v. Harr – Pa. Super. – May 4, 2021 – non-precedential decision**

http://www.pacourts.us/assets/opinions/Superior/out/J-A02032-21m%20-%20104765738134426335.pdf?cb=1

 

Held: Court refused to reinstate Plaintiff’s appeal, which was dismissed when defendant/appellee filed praecipe for dismissal when plaintiff/appellant failed to file proof of service of notice of appeal in this civil, non-LT case.

 

MDJ Rule 1005(B) requires an appellant to file “proof of service of copies of the notice of appeal. . . within 10 days after filing the notice of appeal.” Appellant failed to do so.  MDJ Rule 1006 provides a mechanism for an appellee to have the appeal stricken “upon praecipe, for failure to file a proof of service: ‘Upon failure of the appellant to comply with Rule 1004A or Rule 10056, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa.R.C.P.M.J.D. 1006. 

 

However, Rule 1006 also allows the Court of Common Pleas to reinstate the appeal "upon good cause shown." Id. In this usage, "good cause" "require[s] an appealing party to proffer some legally sufficient reason for reinstating the appeal." Slaughter , 636 A.2d at 1123 (citing Anderson v. Centennial Homes, Inc., 594 A.2d 737, 739 (Pa.Super. 1991)). Appellant filed to provide such proof. Pro se status, without more, is not good cause.

 

Moreover, appellant here did not provide any record evidence of actually having served the notice of appeal, regardless of the failure to provide proof of any such service.

 

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**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

 

 

federal courts - motion to proceed anonymously

Jane Doe v. College of New Jersey – 3d Cir. – May 18, 2021

https://www2.ca3.uscourts.gov/opinarch/202469p.pdf

 

Motion to proceed anonymously denied.

 

From the opinion –

 

We turn to the non-exhaustive, multi-factor test we employed in Doe v. Megless, Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011) where we asked whether the plaintiff presented a reasonable fear of severe harm meriting an exception to “the public’s common law right of access to judicial proceedings.” 654 F.3d at 408 (citation omitted); see Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties[.]”). The factors in favor of anonymity include: 

(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. 

Megless, 654 F.3d at 409 (citation omitted). The factors advising against anonymity include: 

(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. 

Id. (citation omitted). 

 

 

Pa. Consumer Protection Law - right to jury trial

Senter v. Mr. Rooter of Pittsburgh – Pa. Superior Court – April 27, 2021 – unreported memorandum decision**

 

In dictum in n. 3, the Court calls into question the validity of its own prior decision in a 2017 case, holding that a plaintiff under the state consumer protection law, 73 P.S. sec. 201-1 et seq., does not have a right to a jury trial.

 

Here’s what the Court said in n. 3:

 

The trial court reasoned that a plaintiff has no right to a jury trial on a UTPCPL claim, citing Krishnan v. Cutler Group, Inc., 171 A.3d 856 (Pa. Super. 2017). . . .However, the relevant statement in Krishnan appeared in a three-paragraph quotation of the trial court’s opinion, which also addressed other issues. See Krishnan, 171 A.3d at 863, quoting Trial Ct. Op. at 1-2 (“There being no right to a jury trial under the UTPCPL, the court scheduled the jury trial on [Appellees’] common law claims to begin[.]”). The remainder of the Krishnan opinion presented no discussion on the accuracy of this statement. 

Our review of the UTPCPL and relevant decisional law reveals no such authority, for the principle that a UTPCPL claim may not be presented to a jury. Indeed, several decisions by this Court have implicitly approved — by not addressing the propriety of — the presentation of a UTPCPL claim to the jury. See, e.g. Berg v. Nationwide Mut. Ins. Co., 189 A.3d 1030, 1034 (Pa. Super. 2018) (jury found UTPCPL violation, but this Court vacated trial court’s finding of bad faith), appeal granted in part and affirmed on other grounds, 235 A.3d 1223 (Pa. 2020) (plurality); Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 149 (Pa. Super. 2012) (affirming jury finding of UTPCPL violation); Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1032 (Pa. Super. 2005) (affirming jury finding of UTPCPL violation, but remanding for trial court to recalculate award of attorneys’ fees). Nevertheless, neither party has challenged the bifurcated nature of the trial. 

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**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

UC - employer contribution tax rate

Rothrock Motor Sales v. UC Tax Services – unreported, memorandum decision** – Cmwlth. Court – April 27, 2021

 

Note: This decision is being posted to the UC listserv, because it shows how an employer’s UC contribution tax rate is  calculated.

Held: Court affirmed denial of employer appeal of it UC contribution tax rate, due to employer’s failure to comply with DOLI wage reporting requirements

Under Section 301(a)(1) of the Law, an employer’s tax contribution is calculated by multiplying the employer’s taxable wages paid during a fiscal year by the tax rate assigned by the Department. 43 P.S. § 781(a)(1). Taxable wages are determined by wage reports submitted by employers to verify their employee wages paid during the fiscal year. Section 304 of the Law, 43 P.S. § 784; 34 Pa. Code § 63.52. The Department’s regulations require that wage reports be filed through the UC Management System (UCMS), a Department-run electronic filing system. 34 Pa. Code § 63.52(e). The filing date of a report is the date of receipt by UCMS. Id. § 63.52(f). Payments are to be made concurrently with each report. Section 305 of the Law, 43 P.S. § 785. An employer’s tax contributions are held in a reserve account established and maintained by the Department. Section 302 of the Law, 43 P.S. § 782.

An employer’s tax rate is calculated based on “employer experience,” or its history and regularity of filing reports and paying tax contributions. Employers with high employer experience are eligible for a reduced tax rate; employers with less experience, or employers that fail to either timely file reports or pay tax contributions, are assigned a standard tax rate. See generally Section 301.1 of the Law, 43 P.S. § 781.1.

Employers that qualify for an adjusted tax rate under Section 301.1 of the Law are further categorized into Group 1, 2, or 3, with Group 3 having the most experience. Id. § 781.1(b)(1). An employer retains its group designation once classified under Section 301.1(b)(1); however, it must still meet the requirements of that group to qualify for an adjusted tax rate.  A Group 3 employer must make tax contributions for at least one quarter in each of the four fiscal years prior to the tax rate’s effective date. Id. Simply put, high employer experience, accrued by timely reporting and accurate payments, results in a lower tax rate in the next fiscal year, while insufficient experience results in the standard tax rate. 

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