UC - willful misconduct - racial slurs - no per se rule

Bixler v. UCBR – Cmwlth. Curt – 8-4-22- unreported memorandum decision**

 

The court upheld the UCBR finding of willful misconduct, which involved claimant’s use of a racial slur about his employer (“It’s fucking jot in here. I hope I’m the one to have a heat strike so then I can sue the Indian bastard and own this company.”

 

However, the court specifically declined to adopt a per se rule about such speech, holding that “such statements should be considered on a case-by-case basis and should be considered in the context in which they were made.”

Even absent an employer policy or work rule, an employee’s use of vulgar and abusive language toward a superior, when unprovoked and greater than de minimis, can constitute willful misconduct. Id.; Allen v. UCBR, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994). We have also “recognized that words referencing nationality are offensive” and “that even a single incident of offensive language can constitute willful misconduct.” Witkowski v. UCBR, 633 A.2d 1259, 1260 (Pa. Cmwlth. 1993); see also Poplin v. UCBR, 690 A.2d 781, 783 (Pa. Cmwlth. 1997) (citing Witkowski).7 

However, “whether such comments are willful misconduct must be evaluated on a case[-]by[-]case basis and should be considered in the context in which they were made.” Poplin, 690 A.2d at 784. Once the employer makes a showing of willful misconduct, the burden shifts to the employee to establish that good cause justified his conduct. Brown, 49 A.3d at 937. 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

LT - tenant failure to get supersedeas does not warrant dismissal of tenant appeal

RCKA Investments v. Johnson – Pa. Su[er. 8-22-22 – precedential, reported

 

Philadelphia trial court improperly dismissed entire tenant appeal of judgment for money and possession based on tenant’s alleged violation of case management order, which only specified what tenant had to do to get supersedeas of judgment tor possession. The court agreed with tenant/appellant that “the only consequence of failing to deposit money into an escrow account is the risk of being evicted while the appeal is pending. Appellant concludes the court erroneously dismissed his appeal, and this Court should vacate the court’s order and remand for further proceedings in accordance with the Pennsylvania Rules of Civil Procedure.” 

 

The court cited a similar case under a similar prior rule. See Morris v. Smith,  584 A. 2d 331, 332 (Pa. Super. 1990).

 

 

attorney fees - UTPCPL -

Gregg v. Ameriprise Financial  - Pa. Superior Court – June 30, 2022- non-precedential**

 

The purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices. See 73 P.S. §§ 201-2., 201-3. To facilitate that goal, in addition to other relief, the statute permits a court to award costs and reasonable attorney fees. See 73 P.S. § 201-9.2(a);see also Krishnan v. Cutler Group, Inc., 171 A.3d 856, 871 (Pa. Super. 2017). In cases involving a lawsuit that includes claims under the UTPCPL, a trial court considers the following factors when assessing the reasonableness of counsel fees: 

(1) [t]he time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case; 

(2) [t]he customary charges of the members of the bar for similar services; 

(3) [t]he amount involved in the controversy and the benefits resulting to the clients from the services; and 

(4)[t]he contingency or certainty of the compensation. 

Sewak v. Lockhart, 699 A.2d 755, 762 (Pa. Super. 1997), abrogated on other grounds, 245 A.3d 637, 648 (Pa. 2021). 

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** An unreported decision of the Superior Court can be cited for its persuasive value, but not as binding precedent pursuant to Pa.R.A.P. 126(b). 

 

 

 

employment - free speech - government employer

Amalgamated Transit Union v. Port Authority of Allegheny County – 3d Cir. – June 29, 2022

 

Held: Government body violated the First Amendment by prohibiting its employees from wearing COVID masks expressing support for Black Lives Matter. 

 

From the opinion:

Beginning in April 2020, the Port Authority of Allegheny County (“Port Authority”) required its uniformed employees to wear face masks at work. Some employees wore masks bearing political or social-protest messages. Concerned that such masks would disrupt its workplace, Port Authority prohibited them in July 2020. When several employees wore masks expressing support for Black Lives Matter, Port Authority disciplined them under this policy. In September 2020, Port Authority imposed additional restrictions, confining employees to a narrow range of masks. Together with their union, Amalgamated Transit Union Local 85 (“Local 85”), the employees sued, alleging that Port Authority had violated their First Amendment rights.1 

The District Court entered a preliminary injunction rescinding discipline imposed under the July policy and preventing Port Authority from enforcing its policy against “Black Lives Matter” masks. Port Authority appeals. 

The government may limit the speech of its employees more than it may limit the speech of the public, but those limits must still comport with the protections of the First Amendment. Port Authority bears the burden of showing that Employees and Local 85 amended their complaint to reflect the September policy. its policy is constitutional. It has not made that showing. We will affirm the District Court’s order. 

 

 

UC - willful misconduct - violation of ER rule - inconsistent enforcement - findings of fact

Leao v. UCBR – Cmwlth. Court – June 14, 2022 – ** unreported memorandum opinion

 

Held: Failure of referee and UCBR to make findings to resolve conflicting testimony about inconsistent enforcement of  ER rule required remand for findings on the issue, which goes to whether ER met its burden of proving deliberate violation of a rule, a requirement for a finding of willful misconduct.

 

Inconsistent enforcement of an employer rule negates finding of willful misconduct  -- 

In Gordon Terminal Serv. Co. v. UCBR, 211 A.3d 893, 898 (Pa. Cmwlth. 2019). the Court held that a claimant may challenge whether an employer meets its burden of proof in a rule violation case by establishing that the rule is not consistently enforced, and, if it is not, the rule violation does not support a finding of disqualifying willful misconduct. 211 A.3d at 899. “[I]nconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow.” Id. at 900 (emphasis added). See also Great Valley Publ’g v. Unemployment Comp. Bd. of Rev., 136 A.3d 532, 538-39 (Pa. Cmwlth. 2016) (holding that where an employer admittedly tolerated violations of its policy governing employees’ internet use, the employer failed to establish that the claimant’s use of internet amounted to willful misconduct). The “inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct.”5 Gordon Terminal Serv. Co., 211 A.3d at 900 (emphasis added). In both Gordon Terminal Service Co. and Great Valley Publishing, the Court held that the employers could not meet their burdens of proving a deliberate rule violation so as to support a finding of willful misconduct where the employers did not consistently enforce their rules. See also Fegley Mgmt. & Energy v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 11 C.D. 2020,  filed Oct. 14, 2020), slip op. at 10 (holding that “[b]ecause [the e]mployer did not show that it consistently enforced its own . . . policy, it was as if there was no rule at all”).6 

 

5 This distinguishes a claim of “inconsistent enforcement” from “disparate treatment,” which is an affirmative defense and occurs when an employer enforces a rule differently for different employees. Gordon Terminal Serv. Co., 211 A.3d at 899. 

6 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an unreported opinion of this Court, while not binding, may be cited for its persuasive value. 

 

The referee UCBR failed to resolve conflicting testimony about inconsistent enforcement  

While the Referee acknowledged that Claimant could “establish . . . that the policy is not fairly enforced or uniformly applied,” the Referee rendered no findings or credibility determinations regarding the evidence on whether the Policy was uniformly enforced or otherwise addressed the issue beyond this statement. Further, notwithstanding Claimant’s argument to the Board regarding the inconsistent enforcement of the Policy, the Board likewise made no credibility determinations or findings regarding this conflicting testimony and did not address the issue. Because the Board did not resolve the conflicting evidence and address the issue of Employer’s uniform enforcement of the Policy, we cannot exercise effective appellate review over the Board’s Order to determine whether it erred in finding that Employer had met its burden of proving a deliberate violation of the Policy. 

 

Findings & reasons -  2 Pa. C.S. § 507 – “All adjudications…shall contain find­ings and the reasons for the adjudica­tion” 

            a) Basic findings of fact are “essential to the validity” of an administrative decision. The findings must be “sufficiently specific to enable the reviewing court to adequately review the findings and decide questions of law. Begis, 398 A.2d 643.  Accord, Page’s Dept. Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975).  “Failure to make the requisite findings is a violation of due process,” Begis;  2 Pa. C.S. §507.

            b)  Findings must be specific, not general and conclusory.  Koggan v. UCBR, 472 A.2d 277 (Pa. Cmwlth 1984) 

            c) Findings must be complete.  They must cover all issues “necessary to resolve the issues raised by the evidence which are relevant to the decision.”  Koggan, Page’s Dept. Store.

            d) The appellate court may not infer from the absence of a finding that a question was resolved in favor of the prevailing party before the agency.  Koggan

            e) Where findings are not adequate, the appellate court will usually remand the case to the agency, since it is not the court’s function to be a fact-finder.”  Koggan, Page’s Dept. Store.

            f) credibility findings – Held sufficient in UC cases if the UCBR simply says it chose to believe one side or the other.  Peak v., UCBR, 501 A2d 1383, 1387 (Pa. 1985), 1387.  Compare, Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004), where court held that a credibility determination was not adequate because the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations." 

 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - phone hearing - tech. problems - due process

Walthour v. UCBR – Cmwlth. Court – May 12 2022 – reported, precedential

 

UCBR order reversed and case remanded where claimant was unanble to participate in phone hearing becaiuse of technical problems (blocked call issues)  and referee’s failure tom make reasonable efforts to contact claimant..

 

The court followed its (unpublished) op8nion in  O’Leary v. UCBR (Pa. Cmwlth., No. 984 C.D. 2020, filed October 27, 2021), where it noted that

the [Board] does not cite—and our own review of [the Board’s] regulations fails to find—any authority for the proposition that “[p]arties are responsible for their own technology and in charge of their phone and incoming calls,” let alone any regulation suggesting that technological difficulties of unknown cause can preclude a party from having his day in court. Even though an administrative tribunal has discretion over how to conduct a hearing, there are still “certain fundamental rights that must be honored, including the right to a fair hearing in accordance with due process of law.” Collins v. Unemployment Comp. Bd. of Rev., 415 A.2d 145, 146 (Pa. . .  .. .While it [wa]s unclear here whether the problem was with [the c]laimant’s cell phone or otherwise, the Board’s policy which expects the average [UC] claimant to have a sophisticated understanding and proficiency in program[m]ing technological devices is patently unreasonable.  [emphasis in original]

Generally, where a claimant has yet to testify regarding her failure to participate at a hearing, we would remand to the Board for it to make factual findings. However, in this case, the record before the Referee conclusively establishes that Claimant contacted the Referee prior to the conclusion of the hearing, asking why she had yet to receive a call. . . . It also establishes that the Referee did not attempt to contact Claimant, either through his office staff or the alternate phone number in his records. Instead, he faulted Claimant for having a phone that did not accept calls from blocked numbers and closed the record. As such, the evidence of record conclusively establishes that Claimant contacted the Referee’s office “in real time,” was apparently never informed that there was an issue with her phone, and, like the claimant in O’Leary, was improperly charged with being responsible for her own technology and in charge of her phone and any incoming calls. 

Accordingly, for the above reasons, we vacate the Board’s order and remand this matter to the Board for it to hold a hearing and make findings of fact relative to (1) the timeliness of Claimant’s appeal to the Referee, (2) Claimant’s allegation that she did not receive the UC Service Center’s determination, and (3) whether Claimant’s allegation, if true, warrants nunc pro tunc relief, such that the Board must accept the untimely appeal and consider it on its merits. 

 

 

 

admin. law - findings and reasons

Appeal of Apex Properties – Cmwlth. Court – May 18, 2022 – ** unreported memorandum decision

 

In this zoning variance case, the court reversed and remanded because of lack of findings and reasons, as required by 2 Pa. C.S. § 555, which requires that “[a]ll adjudications of a local agency shall be in writing [and] shall contain findings and the reasons for the adjudication . . . .”

 

The court said that it could not address the merits of Apex’s arguments on appeal, because of “the substantive deficiencies of the Board’s Decision. In this instance, the Board did not explain in its decision how or why it came to the conclusion that Apex had failed to satisfy its burden of proof. Instead, the Board merely summarized the facts, stated the legal standard for determining whether a variance application should be approved, and then flatly concluded that Apex had not satisfied that standard. There is thus no way for us to clearly discern the reasoning underpinning the Board’s conclusions.

Furthermore, it appears that the Board improperly reviewed the party’s steep slope variance application using the Zoning Code’s standards for use variance, a different and more stringent variance. 

Given all of this, the court held that the Board failed to provide adequate “findings and . . . reasons for [its] adjudication,” 2 Pa. C.S. § 555, and did not “explain its decision in sufficient detail to permit meaningful appellate review.” Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1389 (Pa. 1985).  Accordingly, the court vacated the board order and remand the matter with instructions that it issue a new, legally sufficient adjudication, through which it must properly articulate its reasons for denying Apex’s variance application. See Troiani Grp. v. City of Pittsburgh Bd. of Appeals, 260 A.3d 1006, 1014-15 (Pa. Cmwlth. 2021).

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - partial week compensation - firing prior to effective date of resignation - referee duty to develop record - fault OP, claimant state of mind

Gribshaw v., UCBR – Cmwlth. Court – en banc - May 10, 2022 – **unreported memorandum opinion

 

Held: Board decision against claimant reversed, case remanded, for reasons set out below.

 

1 – Partial week compensation  - firing prior to effective date of resignation – unconventional work schedule

There are no provisions in the UC Law that address a claimant’s eligibility for partial week compensation. Thus, it is the general rule that where a claimant commits a disqualifying act, at any point in the benefit week, the claimant shall be ineligible for benefits. DeMoss, 454 A.2d at 1148.  The UC Law defines “week” as “any calendar week ending at midnight Saturday, or the equivalent thereof[.]” 43 P.S. §753(z). The phrase “the equivalent thereof” is applicable here.The phrase clearly implies recognition by the General Assembly that not all full-time employees work traditional, 40-hour schedules and that some full-time employees will work unconventional schedules.  

Based on our interpretation of the phrase “the equivalent thereof” in Section 4(z) of the UC Law, it would be unfair to penalize an employee who commits a disqualifying act only after she would have completed her unconventional, full- time schedule but for the employer’s conduct. Under such circumstances, we decline to impose a per se rule that prohibits an employee from receiving benefits. Thus, if Claimant can establish that she would have completed her unconventional, full-time schedule prior to her resignation, but for the termination by Employer, then she may be entitled to benefits for the period ending May 30, 2020. 

2 – Referee failed to develop the record –

“Where a party is not represented by counsel, the tribunal before whom the hearing is being held should advise [her] as to [her] rights, aid [her] in examining and cross-examining witnesses, and give [her] every assistance compatible with the impartial discharge of its official duties.” 34 Pa. Code § 101.21(a). While the referee “need not advise a party on evidentiary questions or on specific points of law,” the referee “must act reasonably in assisting in the development of the necessary facts.” Hackler v. Unemployment Comp. Bd. of Rev., 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011). In determining whether the referee has given a pro se claimant reasonable assistance at an evidentiary hearing, the Court considers whether the referee is guiding the parties to bring out facts of which the referee knows or should know. Id. at 1116.  Claimant brought her unconventional work schedule to the attention of the Referee when she initiated her appeal. 

However, the Referee failed to question Claimant regarding her shift schedule. In our view, the Referee was on notice that Claimant worked an unconventional schedule and should have assisted Claimant in developing the record in this regard. Accordingly, we remand to the Board with instructions to remand to the Referee for further fact-finding to ascertain Claimant’s unconventional schedule.

3 – fault overpayment – no finding on claimant’s state of mind

 Section 804(a) of the UC Law provides that if a person received unemployment compensation benefits due to his or her “fault,” the claimant is responsible for repaying the amount received in error plus interest. 43 P.S. §874(a). The word “fault” within the meaning of Section 804(a) connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches. Narducci v. UCBR, 183 A.3d 488, 497 (Pa. Cmwlth. 2018). Conduct that is designed to improperly mislead the Department is sufficient to establish a fault overpayment. Id. In order to find fault, the Board must make some findings with regard to a claimant’s state of mind. Id. A finding of fault is appropriate where a claimant fails to disclose earnings and is aware of an obligation to do so. Summers v. UCBR., 430 A.2d 1046 (Pa. Cmwlth. 1981). 

Here, the Board made no finding as to Claimant’s state of mind or whether she intended to deceive the Department. See Board’s Decision/Order, 10/23/20. Moreover, Claimant testified before the Referee that she was unaware that she had to report that she resigned because she believed that she had been terminated. See N.T. at 6. Without a finding as to Claimant’s state of mind and in light of Claimant’s testimony, we conclude that the Board erred when it determined that Claimant was liable for a fault overpayment. 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

 

UC - willful misconduct - failure to get flu shot, as required by ER rule - no good cause

Brown v. UCBR – Cmwlth. Court – reported, precedential decision - 

https://www.pacourts.us/assets/opinions/Commonwealth/out/1306CD18_5-5-22.pdf?cb=1

 

Held: Claimant, a senior nursing assistant at Children’s Hospital of Philadelphia,  committed willful misconduct by failing to get annual flu vaccine or, in the alternative, provide a religious or medical reason for not getting vaccinated – as set out in the employer’s 2012 rule.

The employer rule was reasonable – 

As a children’s hospital, employer had a legitimate interest in  protecting the health and safety of its patients. Employer made a business decision that requiring its employees to be vaccinated against the flu each year was necessary to protect its patients’ health.. See Rebel v. UCBR., 723 A.2d 156, 159-60 (Pa. 1998) (recognizing that “[t]he creation of rules and requirements that govern the workplace is the prerogative of the employer” and that “[a]n employer has the right to make decisions as to how [it] is going to run [its] business”) (emphasis added). 

Claimant did not have good cause for violating the employer rule – 

Any legal relationship that a person voluntarily enters into can, and usually does, diminish some common law right he could otherwise exercise with impunity: be the right personal or proprietary. Virtually every legal relationship assumed by a person creates duties and obligations to the other party that are not owed to people outside the relationship. Such a relationship is that of employee and employer. An employee owes his employer, among other duties, a reasonable level of cooperation regarding matters that are important to the employer’s interest. . . . [I]f an employer’s request can be deemed circumstantially reasonable, after considering the burden to the employee, then the employee has an implied obligation to cooperate. Although there might be practical reasons that can justify an employee’s refusal to cooperate, such noncompliance cannot be predicated upon asserted common law personal and property rights. As to employer requests that are reasonable in the above sense, the employee has waived those rights as a basis for noncompliance; [she] waived them when [she] voluntarily assumed the legal relationship with [her] employer.  Simpson, 450 A.2d at 311 [emphasis omitted]) accord Rebel, 723 A.2d at 158-59. 

With regard to Claimant’s informed consent argument, it is true that Claimant has a legal right, as a patient, to refuse a vaccine or other medical treatment. However, Claimant was not Employer’s patient; she was its employee. By voluntarily entering into an employment relationship with Employer, Claimant was obligated to comply with Employer’s reasonable directives related to its business interests. See Simpson, 450 A.2d at 311 (recognizing that an employee waives certain legal rights as a basis for noncompliance with a reasonable employer directive when she “voluntarily assumed the legal relationship with [her] employer”). 

While Claimant had a right to choose to not be vaccinated for a non-religious, non-medical reason, she was notified and aware that, under Employer’s policy, that choice would have a consequence: termination of her employment. . . . Claimant cites no authority for the proposition that an employee can refuse a vaccine as an express condition of employment  . . . .“[C]laimant’s mistaken understanding of her legal rights does not justify her refusal to comply with [E]mployer’s reasonable request.” . . .; see Rebel, 723 A.2d at 159-60 (holding that the claimant’s refusal to submit to drug testing pursuant to his employer’s policy, on the ground that the drug policy violated his right to privacy, was willful misconduct under Section 402(e) of the Law).

 

 

 

 

UC - willful misconduct - habitual tardiness

Martin-Horn v. UCBR – Cmwlth. Court – April 19, 2022 – not reported**

https://www.pacourts.us/assets/opinions/Commonwealth/out/1206CD20_4-19-22.pdf?cb=1

Held: Claimant guilty of willful misconduct due to numerous instances of tardiness, in violation of an emeployer rule.

Employer policy—ER had a specific attendance and tardiness policy with a point system and progressive discipline for repeated violations.  Employees are expected to be ready to start work at the beginning of their scheduled shift. Employees can clock in on their computer or by swiping their identification badge. See F.F. 9. Employees clocking in any time after their scheduled shift commences are considered tardy. A tardy clock-in is considered a violation of the Tardiness Policy, with each individual tardy receiving half a point in the policy’s points scheme.  The Tardiness Policy does not provide for a grace period during which employees do not accrue points for clocking in after their shift has begun. Under the Tardiness Policy, amassing 10 total points is grounds for employee termination. 

Referee findings -- The referee determined that Claimant continually violated the Tardiness Policy despite Employer changing her start time, reminding her of the requirements of the Tardiness Policy, and offering suggestions to  help her present to work on time. The referee also noted that Claimant had not informed Employer of her learning disability until she received a corrective action plan, and that the only accommodation she requested thereafter had been a computer dictation program, which Employer provided. The referee further noted that Employer was lenient with Claimant by considering the challenges of Claimant’s personal life and allowing her to amass 21 tardiness points, despite the fact that only 10 points would have justified Claimant’s termination under the Tardiness Policy. 

Burden of proof - For purposes of determining a discharged employee’s eligibility for unemployment compensation, the employer bears the burden of proving that the employee engaged in willful misconduct connected with his work. See Section 402(e) of the Law, 43 P.S. § 802(e); Adams v. UCBR., 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). 

Willful misconduct -- This Court has defined willful misconduct as (1) wanton and willful disregard of an employer’s interests; (2) deliberate violation of [an employer’s] rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer’s interests or the employee’s duties and obligations.  Waverly Heights, 173 A.3d at 1228 (quoting Johns v. UCBR., 87 A.3d  1006, 1009 (Pa. Cmwlth. 2014)). Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove good cause for her actions. See Downey v. UCBR., 913 A.2d 351, 353 (Pa. Cmwlth. 2006). 

Work rule violation - “Where an employer seeks to deny UC benefits based on a work[]rule violation, the employer must prove the existence of a work rule, the reasonableness of the rule and the employee’s violation of the rule.” Waverly Heights, 173 A.3d at 1228 (internal citation omitted). An inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct. See Chester Cmty. Charter Sch. v.UCBR., 138 A.3d 50, 55 (Pa. Cmwlth. 2016). “Thus, a determination of what amounts to willful misconduct requires a consideration of all of the circumstances, including the reasons for the employee’s noncompliance with the employer’s directives.” Eshbach v.UCBR., 855 A.2d 943, 947-48 (Pa. Cmwlth. 2004) (internal quotation marks and citation omitted). Where the employee’s action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. See id. at 948. 

Habitual tardiness - “It is well settled that habitual tardiness can constitute willful misconduct, thus justifying the denial of benefits.” Cipriani v.UCBR, 466 A.2d 1102, 1104 (Pa. Cmwlth. 1983); see also Grand Sport Auto Body v. UCBR., 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (“Excessive absenteeism or tardiness may constitute willful misconduct.”). This is so because “[e]mployers have the right to expect that employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.” Grand Sport, 55 A.3d at 190 (internal citation, quotation marks, and ellipses omitted). Thus, habitual tardiness “is inimical to an employer’s interest.” Id. For this reason, this Court has “repeatedly held that habitual tardiness is adequate ground[s] for a finding of willful misconduct.” Id.; see also Ellis v.UCBR., 59 A.3d 1159, 1163-64 (Pa. Cmwlth. 2013) (claimant’s 6 tardies within 21⁄2 weeks without good cause sufficient to find willful misconduct); Dotson v.UCBR., 425 A.2d 1219, 1220 (Pa. Cmwlth. 1981) (benefits denial appropriate where claimant was late 27 times and absent 7 times during two-year period and court rejected claim of good cause based on claimant illness); Bowers v. UCBR., 392 A.2d 890, 892 (Pa. Cmwlth. 1978) (benefits denied where claimant was late 12 times during four-month period); UCBR v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976) (benefits denied where Board rejected claimant’s contention that chronic lateness was due to illness). 

Here, Employer terminated Claimant’s employment based on Claimant’s repeated instances of tardiness.  The tardiness policy assigns one-half of a point for each instance of tardiness and that the assessment of a total of 10 points for tardiness even with proper notification to Employer constitutes grounds for termination.  Claimant amassed 21 points for tardiness from March through December 2019, a total representing 42 instances of tardiness during that period,more than double the number of points that would have justified Claimant’s discharge. 

Good cause - “The issue of whether good cause exists is a factual one for the Board to resolve.” Ellis, 59 A.3d at 1164. Here, the Board concluded that Claimant did not meet her burden to prove that she had good cause for her tardiness. Her reasons for her tardiness were found to be vague and repetitive. Moreover, Employer attempted to accommodate claimant’s issues with tardiness, and was lenient with her, but she still accumulated 21 points.  The Board maintains the exclusive province to make this finding, which cannot be impugned on appeal. See Waverly Heights, 173 A.3d at 1227-28; Ellis, 59 A.3d at 1164. 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

 

real estate tax sales - notice - personal service - owner-occupied properties

In re Lay v. County of Erie Tax Claim Bureau – Cmwlth. Court – March 2, 2022 – unreported**

 

Held: Since the property at issue was “owner-occupied,” personal service of the notice of tax sale was required, despite the owners having received actual notice of the sale and despite them being “serial and willing tax delinquents.”

 

From the opinion:

 

Purpose of the tax sale law – The “purpose of tax sales is not to strip the taxpayer of his property but to insure the collection of taxes.” Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa. Cmwlth. 2013). 

Burden of proof – “In all tax sale cases, the tax claim bureau has the burden of proving compliance with the statutory notice provisions.” In re Consol. Reps. & Return by Tax Claims Bureau of Northumberland Cnty. of Props. (Appeal of Neff), 132 A.3d 637, 644-45 (Pa. Cmwlth. 2016).

Owner-occupied properties – In addition to other notice requirements of the RETSL (Real Estate Tax Sale Law), sec.  601(a)(3) of the RETS, 72 P.S. 5860.601 (a)(3), requires that the county tax claim bureau personally serve an “owner-occupant” of a property subject to an upset sale with notice of that sale. The RETSL defines “owner-occupant” as “the owner of a property which has improvements constructed thereon and for which the annual tax bill is mailed to an owner residing at the same address as that of the property.” Section 102 of the RETSL, 72 P.S. § 5860.102. The plain text of this definition “contains four necessary elements: (1) an owner-occupant must be an owner of the property; (2) the property must have improvements constructed thereon; (3) the annual tax bill for the that property must be mailed to an owner at the property; and (4) such owner referenced in prong three must reside at the property.”  Commonwealth v. Giulian, 141 A.3d 1262, 1267 (Pa. 2016) (“A statute’s plain language generally provides the best indication of legislative intent.”). 

Actual notice of the sale does not cure a defect in service - The requirements of Section 601(a)(3) “are cumulative and apply in addition to the tax claim bureaus’ obligations to provide notice through publications, posting, and mail.” Appeal of Neff, 132 A.3d at 645. Therefore, actual notice is not a defense to a lack of personal service under Section 601(a)(3) and does not cure a defect in the personal service requirement. See McKelvey v. Westmoreland Cnty. Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).

 

+++++++

 ** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

contracts - parol evidence rule

Gasbarre Products v. Smith – Pa. Superior Court – reported decision – February 7, 2022

 

This case discusses the parol evidence rule. 

 

From the opinion:

 

In DeArmitt v. New York Life Ins. Co., 73 A.3d 578 (Pa. Super. 2013), this Court explained: Pennsylvania law defines the parol evidence rule as:

Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.

Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 497, 854 A.2d 425, 436 (2004) (quotingGianni v. R. Russel & Co., 281 Pa. 320, 323, 126 A. 791, 792 (1924)).

The parol evidence rule seeks to preserve the integrity of a written agreement by barring the contracting parties from trying to alter the meaning of their agreement through use of contemporaneous oral declarations. Lenzi v. Hahnemann University, 445 Pa. Super. 187, 664 A.2d 1375, 1379 (1995).

Id. at 589.

As reflected in the above-quoted excerpt from Yocca, the Pennsylvania Supreme Court has instructed that the terms and agreements reflected in a written contract cannot be added to or subtracted from, absent fraud, accident, or mistake. Yocca, 854 A.2d at 436. “Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract.” Id. at 436-37 (citations omitted). More recently, however, the Court explained:

When parol evidence is admissible, “it must generally have a foundation in pre-existing evidence of fraud, accident or mistake,” except when it is introduced “not to contradict or vary, but to explain the contract, as when something is omitted . . . so as to qualify the tribunal passing upon the writing to interpret it truly according to the intent of the parties.”

Starling v. Lake Meade Property Owners Association, Inc., 162 A.3d 327, 341 (Pa. 2017) (quotingBaltimore & Phila. Steamboat Co. v. Brown, 54 Pa. 77, 81–82 (1867)).

Similarly, in Lenzi, the Pa. Superior Court held that “[t]he parol evidence rule does not preclude the admission of evidence to establish whether the parties intended the writing to be a complete embodiment of their agreement.” Lenzi, 664 A.2d at 1379 (citing Murray v. University of Pennsylvania Hospital, 490 A.2d 839 (Pa. Super. 1985)) (emphasis in original).

“[W]hether the writing constituted the entire agreement was a question of law for the court,” and, therefore, the trial court properly allowed testimony to determine whether the writing represented the entire contract. Id. at 1379. “The trial court did not accept the introduction of parol evidence to vary theterms of the [document], but allowed the testimony to aid in defining the intent of the parties with regard to termination of [Lenzi’s] employment.” Id. at 1379-80 (emphasis in original). “Therefore, the introduction of testimony as to intent was relevant to the ultimate issue as to whether the [document] was a fully integrated writing and did not constitute error.” Id. at 1380. See also Murray, 490 A.2d at 844 (“Parol evidence may always be considered by the court to determine whether the parties intended the writing to be a complete embodiment of their agreement.”).

 

 

 

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custody - civil rules - appt. of atty. for child - child interview - child attendance at proceedings - Rule 1915.11

Order https://www.pacourts.us/assets/opinions/Supreme/out/Order%20-%20105020175159411240.pdf?cb=1

Rule    https://www.pacourts.us/assets/opinions/Supreme/out/atttachment%20-%20105020175159411166.pdf?cb=1

Report https://www.pacourts.us/assets/opinions/Supreme/out/report%20-%20105020175159411181.pdf?cb=1

 

SUPREME COURT OF PENNSYLVANIA DOMESTIC RELATIONS PROCEDURAL RULES COMMITTEE

ADOPTION REPORT

On January 20, 2022, the Supreme Court of Pennsylvania adopted Recommendation 2 of 2021 of the Domestic Relations Procedural Rules Committee (Committee). The Recommendation amends Pa.R.Civ.P. 1915.11. This rule addresses the appointment of a child’s attorney in a custody case, the child interview by the court, and a child attending various court proceedings. The Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained in this Adoption Report are those of the Committee, not the Court.

The Committee received correspondence suggesting Pa.R.Civ.P. 1915.11(b) infringes upon a self-represented party’s ability to represent himself or herself by not permitting the self-represented party to participate in the child interview in the same manner as a represented party through counsel. Currently, Pa.R.Civ.P. 1915.11(b) provides that the court may interview the child in the presence of the parties’ attorneys and, if the court permits, the parties. Moreover, the current rule permits a party’s attorney to question the child, but not a self-represented party, which was the basis for the proposed rulemaking. This specific provision creates the appearance of a disadvantage to the self-represented party by not allowing that party to put forth questions to the child that are relevant to the self-represented party’s case and, presumably, the child’s best interest. The Committee agreed this distinctively dissimilar treatment between represented and self-represented parties could impact the court’s best interest analysis. Bearing in mind the court’s overall concern in child custody cases is the child’s best interest, including the process of determining the child’s best interest, the Committee believes the Recommendation strikes a balance between the self-represented party’s right to present evidence for determining the child’s best interest and the child’s best interest in addressing the court’s questions without intimidation or fear.

The Recommendation does not substantively amend subdivisions (a) and (c) with revisions in those subdivisions limited to stylistic changes. Instead, the Recommendation’s substantive amendments are included in subdivision (b), which has been restyled, as well. This subdivision provides the court with two options for the parties or counsel to participate in the child interview. First, subdivision (b) incorporates the current rule’s provision of permitting an attorney to question the child under the court’s supervision into subdivision (b)(4)(i) but adds the qualifier requiring that all parties are represented; and second, the Recommendation adds subdivision (b)(4)(ii) as an additional option for the court to allow counsel and a self-represented party to submit to the court written questions that are directed to the child, which the court may include in its child interview.

The amendment becomes effective April 1, 2022.

 

 

 

 

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PFA - testimony of parties' therapist about threats allowed into evidence

Ryan v. Ruize – Pa. Super. – 12-14-21 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Superior/out/J-S21002-21o%20-%20104984205154548011.pdf?cb=1

 

 

Held: In PFA case, trial court properly permitted fact testimony of the parties’ therapist concerning husband’s statements to her, during counseling session, that if he killed mother with a gun at their home, it would look like an accident.

 

The court held that

 

• Psychiatrist/psychologist privilege under 42 Pa. C.S. 5944 did not apply, by definition, to the therapist, who was not part of a treatment team that included a psychiatrist or psychologist, Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016); Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. 1998) (counselor’s title not dispositive)

 

• Privilege under 42 Pa. C.S. 5948 for confidential communications to a “qualified professional” in divorce or custody cases did not apply to PFA cases.

 

• ++++++++++++++++++

 

This case is also reported in the PLAN Legal Update, which you can access and search without a password.