Can unemployment benefits be denied for negligence involving property damage?

If you were terminated from your job because you accidentally damaged your employer’s property or equipment due to an accident, you may face difficulty obtaining Pennsylvania unemployment compensation (UC) benefits. Accidents are typically caused by what is considered negligent conduct. While a casual act of negligence would not lead to a denial of unemployment benefits, certain acts of negligence could lead to a denial of unemployment benefits.

In order for negligence causing property damage to lead a denial of UC benefits, the conduct must rise to the level of willful carelessness. The UC referee deciding the case will typically look for some conduct which would indicate some level of culpability or fault on the part of the employee.

In some cases, it’s easy to differentiate between negligent conduct which should lead to a denial of benefits and conduct which should not. However, it’s not always clear cut. Employers will typically try to argue the frequency of events to show that the conduct resulted in willful carelessness. For example, if an employee breaches safety protocol and is issued a warning and the employee violates the same type of protocol which results in the same type of property damage, that may be construed as willful carelessness since the employee was put on notice on what specific procedures are required to be followed.

But what if the accident is the first incident resulting in property damage? If that’s the case, the referee deciding the case will simply have to examine all of the facts and circumstances to reach a determination. The most common type of situation where I’ve seen property damage eligibility issues come up is in the context of fork lift operators. Conduct which would lead to a denial of benefits would be speeding on the forklift or a blatant disregard of safety protocols.

Keep in mind that in most contexts, negligence which results in damage to property or equipment will not result in a denial of unemployment benefit unless the employer is able to establish that the negligence was the result of willful carelessness. The employer bears the burden of proof on this issue which is important to note.

If your UC benefits have been denied by the UC Service Center or your employer is filing an appeal, feel free to contact me for a consultation by calling (484) 362-9286. I am a UC attorney that represent claimants located in the Lehigh Valley of Pennsylvania and surrounding areas.

How Severance Pay Affects PA UC Benefits

On January 1, 2012, Act 6 of 2011 went into effect, which made some very important changes to Pennsylvania’s Unemployment Compensation Law. The most important aspect of this law was the way severance pay was treated with respect to calculating an employee’s unemployment compensation benefits. In some cases, severance pay may act as an offset against unemployment benefits which would reduce the amount of unemployment benefits a person can receive.

Prior to Act 6, employees could collect unemployment benefits regardless of the amount of severance received from their former employer. After the enactment Act 6, an offset is taken into consideration. The offset uses a formula to determine the amount of the offset based on “40% of the average annual wage.” Currently, “40% of the average annual wage” equals $17,853, which is subject to change. An employee can receive up to 40% of the average annual wage until their unemployment benefits are affected. As of 2015, this amount has increased to $19,417, and this figure will continue to change annually.

This means that if your severance award is less than $19,417, your unemployment benefits will not be affected. Any severance award you receive over $19,417 will reduce your unemployment benefits on a dollar-for-dollar basis. Severance agreements reached prior to January 1, 2012, will not be affected by this law. When applying for PA UC benefits, it’s important to notify the Department of Labor if you are receiving any severance so they can properly calculate the unemployment benefits you may be entitled to.

If you have any questions regarding your PA UC benefits, please feel free to contact me at (484) 362-9286.

Please also review the Severance FAQ provided by the Pennsylvania Department of Labor.

My PA UC Claim Is Under Review – What Should I Do?

Question:

I went to check the status of my PA UC claim and I received a message that states “there is an issue on the claim that is currently being reviewed.” What does this mean for me?

Answer:

The PA UC Application Review Process

After you apply for unemployment compensation benefits in Pennsylvania, your case is assigned to a UC Representative who is responsible for investigating your claim and reaching a determination on whether or not you are eligible for UC benefits. This individual will review your initial application to obtain basic information regarding your claim. The representative will then contact the employer and request that the employer submit a questionnaire regarding the reason the employee’s employment ended. You may also be asked to submit a questionnaire as well.

If additional information is needed to clarify responses, the investigator has the ability to interview both the employee and the employer over the phone. However, the UC representative typically issues a determination based on the initial application  as well as subsequent questionnaires submitted by both parties.

The review process typically takes 4-6 weeks. Simply stay patient during this process. If you wish to check the status of your claim, you can call the UC Service Center for an update.

The PA UC Decision

The UC Representative will then reach a decision on whether an applicant is eligible for benefits. This decision is called the Notice of Determination. Both the employee and the employer will be mailed the Notice of Determination and either party has the right to file an appeal. An appeal must be filed within 15 days from the date the Notice of Determination is mailed.

The Notice of Determination will state if a particular section of law disqualifies a claimant from receiving unemployment benefits. The section of law that is most often used is Section 402(e) which relates to “willful misconduct.” This section will be used if the employer is alleging a rule violation or some sort of wrongdoing on the employee’s part. Other sections may also be used, such as Section 402(b) if you voluntarily quit your employment.

The PA UC Appeal Process

Upon filing an appeal to a Notice of Determination, the case will be scheduled for a UC Referee Hearing in approximately 4-6 weeks from the date of the appeal. Both the employer and the employee will be given the opportunity to provide testimony and offer evidence regarding the reason the employment ended. The referee hearing is the parties only opportunity to present evidence and testimony. After the referee hearing, an appeal can be filed with the Board of Review, who will review the referee’s decision to determine if it was correct.

Hiring a PC UC Attorney

If you are interested in retaining a Pennsylvania unemployment compensation attorney for your hearing, please contact me. My phone number is (484) 362-9286 and I am happy to provide a consultation for your case. My office is located in Bethlehem, PA, and I primarily practice in the Lehigh Valley area.

Pennsylvania Landlord-Tenant Laws Regarding Abandoned Property

Throughout the years, Pennsylvania’s laws regarding abandoned property of a tenant have faced uncertainty. If property was left behind by a tenant, landlords were unsure of what their duties were with respect to that property, at what point the property would be considered abandoned by a tenant, and whether they were permitted to dispose of or sell property that was left behind.

That uncertainty has been resolved with the passage of Act 129 of 2012, the Abanonded Property Bill. Act 129 was signed by Governor Corbett on July 5, 2012, and went into effect September 2012. Act 129 deals with the disposition of personal property left behind after a tenant relinquishes possession of real property.

When Personal Property Becomes Abandoned

There are two ways where a tenant will have relinquished possession of real property: (1) an order of possession is entered by a magistrate court following a hearing, the entry of a judgment for possession, and the ten day appeal period has expired; or (2) the tenant physically vacates the property, removes substantially all personal property, and provides a forwarding address or written notice that he has vacated.

Landlord’s Duties Regarding Abandoned Property

The eviction process starts by filing a complaint for the recovery of possession of real property with a magistrate court. Once the complaint is filed and served on the tenant, a hearing will be scheduled. The District Justice will then award possession of the property to the landlord. The tenant has ten days to file an appeal. If an appeal is not taken, the landlord can request a Writ of Possession after the ten day appeal period has expired.

The Writ of Possession should soon be amended to advise a tenant of his right to make a request to the Landlord that he is coming back for his possessions within ten days.  If the tenant informs the landlord within 10 days of an Order of Possession being entered that he intends to come back for any possessions left behind, the landlord must hold the property for a period of 30 days. The property can be held at the property or in storage.

If the Writ of Possession does not include that notice to the tenant, the landlord must provide the tenant with a written notice to the tenant about the remaining property and give the tenant ten days from the date of the postmark of the notice to communicate his intent. If there is no communication within ten days, the landlord can dispose of the property.

If the tenant retrieves the items within ten days, the landlord cannot charge the tenant for removal and storage. If the tenant retrieves the items after ten days, but within 30 days, the landlord can charge the tenant for the removal and storage of the items. The law does not specify whether a landlord can refuse to relinquish possession unless the costs are simultaneously paid by the tenant.

In the second scenario outlined above, if a tenant vacates the property and provides a forwarding address and a landlord sells the goods for more than the tenant owes the landlord, the excess proceeds of the sale are to be mailed to the tenant’s forwarding address via certified mail. If no forwarding address is provided, the landlord must hold the proceeds for thirty days, after which the landlord may keep the excess.

Leases should also be amended to inform tenants of their rights under Act 129. If you have questions regarding Act 129, feel free to contact me at (484) 362-9286.

How To Collect a Landlord-Tenant Judgment in Pennsylvania

Many landlords know how to file an eviction action against a tenant who has failed to pay their rent. After the tenant is evicted, the landlord is completely aggravated since their rental property has not produced any income for months while the tenant has stayed in possession of the property without paying rent. The situation could also cause the landlord’s mortgage to fall into default only making matters worse.

Following the eviction hearing, the landlord will likely obtain a judgment for possession and for the rent in arrears that is owed. Most landlords simply want possession of the property back so they can locate a qualified tenant who has the ability to pay rent and they give up on collecting on the judgment. Collecting a judgment from a tenant can be quite a daunting task. However, it is not impossible and hopeless.

Pennsylvania Law Allows Landlords To Garnish Wages

Pennsylvania law recently allowed the attachment of wages for money judgments obtained by a landlord arising out of a residential lease. This law went into effect on January 21, 2006. The law directs the employer of the defendant (the garnishee) to garnish 10% of the defendant’s net wages once the proper procedure for garnishing wages is followed. In order to start the process, you’ll need the tenant’s new residential address or the address of their employer.

If the tenant shows up at the magistrate eviction hearing, use that as an opportunity to gain information from the tenant about where they are employed or where they may be moving to. Additionally, prior to executing the lease, a rental application should be used to gain information from the tenant regarding their date of birth, social security number, prior addresses, and the name and address of their current and prior employers.

Pennsylvania Wage Garnishment Process

After a judgment is obtained from the magistrate court, the judgment must then be entered in the County Court of Common Pleas. It is advised to consult with an attorney to enter a magistrate judgment in the County Court of Common Pleas.

Once a judgment is entered in the Court or Common Pleas, the landlord can proceed by filing a Praecipe for Notice of Intent to Attach Wages. This Notice must then be served by the sheriff as if it were service of original process in a civil complaint. That is why knowing where the tenant is located or employed is critical to pursuing collection efforts. If the tenant has taken off for parts unknown, you may be out of luck.

Once the tenant is served with this Notice, they then have an opportunity to file a claim within thirty (30) days that they are exempt from wage garnishment because their income is below the federal poverty guidelines. Assuming that the tenant has been served by the sheriff and nothing has been filed by the tenant within thirty (30) days, the landlord can proceed by requesting a Writ of Attachment from the Court which formally directs the tenant’s employer to garnish the tenant’s wages. You are then on your way to getting the judgment you obtained satisfied.

Pennsylvania Landlord Judgment Collection Attorney

If you are looking for a landlord-tenant attorney to help you collect a money judgment arising out of a residential lease in Pennsylvania, please contact me at (610) 417-6345 or email me. I practice in Northampton and Lehigh County and am happy to assist landlords throughout the Allentown, Bethlehem, Easton areas.

What happens when a tenant appeals an eviction judgment for possession in PA?

Basics of the Eviction Process in Pennsylvania

When a landlord has a tenant who fails to pay rent, a landlord must file an eviction proceeding at the local magistrate court that has jurisdiction over the property. Once a complaint it filed, a hearing is scheduled.

The hearing is very straight forward. The landlord testifies that the tenant has failed to pay rent and a judgment is entered in the landlord’s favor for the amount of rent owed plus court costs and the court will grant the landlord possession.

If an appeal is not filed by the tenant within ten (10) days and the tenant remains in possession of the property, the landlord must then file an Order of Possession with the court so a constable to sheriff can perform the actual eviction to forcibly remove the tenant from the property.

Appeal Process When Tenant Appeals a Judgment Granting Possession

Although the tenant has failed to pay rent, the tenant can exercise their right to appeal the judge’s decision. Some tenants can be very good at “gaming the system” or taking advantage of their right to due process of law. The landlord-tenant appeal process is very aggravating for most landlords who simply want to remove a tenant who has stopped paying rent.

After the magistrate judge enters a judgment and awards a landlord possession, the tenant has the right to file an appeal to the possession portion of the judgment within ten (10) days. After the tenth day, the tenant can still appeal the money portion of the judgment within thirty (30) days of the judgement, but the tenant can no longer appeal the award of possession. Rule 1002.

A tenant would file an appeal with the Court of Common Pleas in the county the property is located in such as the Lehigh or Northampton County Court of Common Pleas. When a tenant files an appeal, they ask the court to enter a Rule to Show Cause, which would require a landlord to file a civil complaint in the court within twenty (20) days. Rule 1004. An appeal is conducted de novo, which means a new hearing is required. Rule 1007.

When an appeal is filed by a tenant, the tenant is required to post with the court the amount of rent in arrears or three (3) months rent, whichever is less. Rule 1008(B).  If rent is not posted with the court, the tenant will not be granted a supersedeas, which is a term that essentially means that the constable or sheriff cannot move forward with the actual eviction process while the appeal is pending. Furthermore, the tenant must deliver the notice of appeal to the magistrate court to be granted the suersedeas and serve a copy upon the landlord.

When a tenant fails to post rent with the court, the landlord can terminate the superseadas by filing a praecipe (“document”) with the court. Once this is done, the tenant’s appeal is terminated and the eviction process can proceed.

Indigent Tenants Filing Appeals

Where things can get more aggravating is if a tenant is claiming they are indigent and cannot afford to post the lesser of the rent in arrears or three (3) months rent. Under Pennsylvania law, the tenant is permitted to submit an affidavit stating they do not have the financial ability to post with the court the lesser of three (3) months rent or the actual rent in arrears and the court would permit the appeal to proceed.

If the tenant files this affidavit and has not paid rent in the month the appeal is filed, they’re merely required to pay one-third (1/3) of their monthly rent payment at the time of appeal. The remaining two-thirds (2/3) must then be posted within twenty (20) days of the appeal.  The tenant must then continue to pay rent every thirty (30) days after filing the appeal with the court. Rule 1008(C)(3).

If there tenant ever fails to pay rent with the court as they’re required to do during the appeal, the landlord can file a praecipe (“document”) asking the court to terminate the appeal so the eviction can proceed.

Getting Rent the Tenant Posts

In order to obtain rent after a tenant files an appeal, a landlord must file an application with the court so the sums posted by the tenant can be released from escrow. Rule 1008(C)(7).

Have Tenant Problems? Contact Me

If you are a landlord that has a tenant who filed an appeal after you obtained a judgment for possession, feel free to contact me at (484) 362-9286 or email me.

Don’t let your problem tenant take advantage of you. I can help you file a complaint in court, terminate the tenant’s appeal, proceed with the eviction, obtain any rent the tenant has posted with the court, and potentially collect the balance of the judgment awarded.

My office is located in Bethlehem, PA and I practice in Northampton County and Lehigh County.  I am happy to serve clients located in the Allentown, Bethlehem, and Easton areas.