Saturday, August 29, 2015

schools - free transportation - two difft. parental residences w/in same district

Watts v. Manheim Twp. School District – Pa. Supreme Court – Augusut 26, 2015



We granted review to consider whether the Public School Code of 1949mandates that a school district provide free transportation to a student from two different

residences where the student’s parents share physical custody of the student and both parents reside within the school district. The Commonwealth Court held that the

Manheim Township School District (“the School District”) must provide transportation to both parents’ residences.


For the reasons set forth herein, we agree that the School District is required to provide free transportation to and from both parents’ residences in this case. Accordingly, we affirm the decision of the Commonwealth Court.

Thursday, August 20, 2015

FMLA - deficient request - opportunity to cure

The petition for rehearing filed by appellee Lehigh Valley Hospital Network in the above-entitled case having been submitted to the judges who participated in the decision of this Court, it is hereby O R D E R E D that the petition for rehearing by the panel is granted. The opinion and judgment entered June 22, 2015 are hereby   V A C A T E D.1A subsequent opinion and judgment will be issued.


Hansler v. Lehigh Valley Hospital Network – 3d Cir. – August 19, 2015



Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA” or the “Act”), 29 U.S.C. § 2601 et seq.1 Specifically, Hansler submitted a medical certification requesting leave for two days a week for approximately one month. As alleged in the complaint, the medical certification refers to the length of her requested leave but not the nature or duration of her condition.  A few weeks later, after she took several days off work, Lehigh Valley terminated Hansler’s employment without seeking any clarification about her medical certification, as required by law.


Lehigh Valley cited excessive absences and informed her that the request for leave had been denied. Hansler sued Lehigh Valley for violations of the Medical Leave Act, and the District Court dismissed the complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” We conclude that, by alleging that Lehigh Valley terminated her instead of affording her a chance to cure any deficiencies in her medical certification, Hansler has stated a claim that Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.



Friday, August 14, 2015

UC - willful misconduct - progressive disciplinary system

Philadelphia Corp. for Aging v. UCBR – Cmwlth. Court – August 5, 2015 – unreported memorandum opinion



Employer did not satisfy its burden of proving willful misconduct where it did not follow its own progressive disciplinary policy (PDP) in terminating claimant’s employment.   The employer presented no evidence that its PDP permitted it to reinstate claimant’s probationary status, where claimant had completed probationary period and became regular employee subject to PDP.


“Where an employer has established a specific rule applicable to all employees, it must follow its own progressive discipline policy when disciplining specific employees.” Looney v. Unemployment Compensation Board of Review, 529 A.2d 612, 614 (Pa. Cmwlth. 1987.)


Employer is correct that it can legally terminate employment of an at-will employee without strictly adhering to its Disciplinary Actions Guide; however, Employer relies on wrongful termination cases, which do not discuss eligibility for UC benefits, in its attempt to extend that proposition to the instant UC case.  UC Law, on the other hand, examines whether an employer adheres to its established policy in disciplining or terminating an employee because “promulgation of specific rules puts employees on notice that the employer will not consider such conduct to be adverse to its interest until the requisite number of violations have been committed.” PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). If an employer does not follow its disciplinary policies when discharging a claimant, we have held that the employer has consequently not established, for purposes of UC Law, “that the discharge was for willful misconduct related to [the] [c]laimant’s work.” Id. In these circumstances, the claimant will not be deemed ineligible for UC benefits pursuant to Section 402(e) of the Law notwithstanding the employer’s prerogative to discharge at-will employees for any number of reasons.


Here, Employer does not address the Referee’s finding that, after Claimant successfully completed probation on December 22, 2013, she became a regular employee subject to the rights and protections set forth in Employer’s personnel handbook, including being disciplined in accordance with the Disciplinary Actions Guide. Employer has provided no record evidence of the disciplinary procedures, as provided for in its Disciplinary Actions Guide, or specified the basis upon which it could reinstate a 90-day probationary period for a regular employee who is tardy or absent in violation of Employer’s rules.6 Because Employer did not proffer the Disciplinary Actions Guide or any testimony of any other procedures it follows as record evidence, there was no evidence to support Employer’s argument that it could reinstate Claimant’s probation as it did. The Board, therefore, could consider Claimant as a regular, non-probationary employee for purposes of Employer’s disciplinary policy, and there was no evidence that the policy provided for termination under the facts found in this case.



This  summary is also posted at the PLAN Legal Update, which is searchable  and can be accessed without a password.


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414. – soon to be Rule 3716 ***


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website




UC - negligence v. willful misconduct - prior warnings - lack of findings - remand

Shadowfax Corp. v. UCBR – Auust 4, 2015 – unreported memorandum decision



The court remanded the case for findings about the employer’s alleged prior warning to claimant about her job performance.   Claimant was an activities coordinator at a mental health facility.  She was fired after she forgot to take one of the residents on a field trip, claiming to have inadvertently/negligently left him behind.


Mere negligence or inadvertence on its own does not rise to the level of willful misconduct. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). Rather, willful misconduct requires “the additional element of an intentional disregard of the employer’s interests.” Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 626 n.3 (Pa. 1993). However, repeated conduct of an employee in the face of multiple warnings will support a finding of willful misconduct. Scott, 36 A.3d at 648.   


The employer  presented evidence that Claimant had been previously warned concerning issues with her supervision of individuals under Employer’s care.   The Board capriciously disregards evidence when it “willfully or deliberately ignore[s] evidence that any reasonable person would have considered to be important.” Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013). Although the Board is the ultimate fact-finder when it comes to resolving evidentiary conflicts and making credibility determinations, the Board may not willfully ignore evidence when making credibility determinations. Id. Here, the referee’s findings of fact, which the Board adopted and incorporated, make no mention of the repeated warnings. Although the referee found Claimant’s testimony credible that she inadvertently left the resident at Employer’s facility, neither the Board nor the referee expressly considered Claimant’s previous warnings regarding supervisory concerns in analyzing whether her actions constituted willful misconduct.


In unemployment cases, the Board is the ultimate fact-finder empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).    However, the Board in this case did not make any findings or determinations based on Claimant’s prior received warnings and did not make any credibility determinations concerning Employer’s witnesses. As reflected in Scott, supra, these findings are necessary to a determination of whether Claimant’s actions rise to the level of willful misconduct.   We reiterate that it is the Board’s duty and functional purpose to assign credibility and weight determinations to the evidence presented. See Wardlow v. Unemployment Compensation Board of Review, 387 A.2d 1356, 1357 (Pa. Cmwlth. 1978). The Board’s failure to do so impedes our ability to conduct meaningful appellate review and requires that the case be remanded for such findings.




The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website




Thursday, August 06, 2015

MERS - recorder of deeds v. MERS - 3d Cir.

Montgomery Co. Record of Deeds v. MERSCORP – 3d Cir. – August 3, 2015



In 2011, Appellee Nancy J. Becker, the Recorder of Deeds for Montgomery County, Pennsylvania , brought this action on behalf of herself and other similarly situated county recorders of deeds in Pennsylvania against MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc., entities associated with the MERS System (“MERS”), a national electronic registry system for mortgage loans.  The Recorder sought to recover millions of dollars in unpaid recording fees, contending that the MERS entities have unlawfully failed to pay such fees in violation of Pennsylvania law, 21 Pa. Cons. Stat. Ann. § 351. Because we conclude that § 351 does not create a duty to record all land conveyances, a key premise on which the Recorder’s claims were and are based, we will reverse.


We will also deny the Recorder’s motion for certification of two issues to the Supreme Court of Pennsylvania. The answer to the issue of state law that decides this case, at least before us, is so clear that we would be abdicating our responsibilities by punting. We recognize, of course, that were the Supreme Court at some point to answer the question differently, that decision would control. Cf. County of Ramsey v. MERSCORP Holdings, Inc., 776 F.3d 947, 951 (8th Cir. 2014) (declining to certify issue to the state’s highest court); Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 735 (7th Cir. 2013) (same).

Monday, August 03, 2015

expungement - founded report

DM v. DPW – Cmwlth Court – August 3, 2015



The court upheld DPW’s dismissal of D.M.’s (Petitioner) appeal to expunge a founded report of child abuse maintained in the ChildLine Registry pursuant to the Child Protective Services Law (CPS Law). 


It rejected arguments that (i)the record from Petitioner’s criminal proceeding did contian sufficient facts to serve as the basis for a “founded” report of child abuse;  and (ii) that a report of suspected child abuse based upon court action must be reported as “unfounded” if it is not finalized within sixty (60) days of the date of criminal sentencing.


The subject child was seventeen years old at the time of the events at issue and a resident at a facility for adolescents.   Petitioner was employed at the residential facility and in his capacity as a staff member and supervisor was responsible for Child’s welfare.


Petitioner pleaded no content to a harassment charge.  The information filed by the District Attorney stated that the harassment charge was based upon the following:

with intent to harass, annoy, or alarm another person, [Petitioner] did communicate to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures, in that [Petitioner] did state to a seventeen (17) year old female victim “I bet you don’t shave your [p---y].” and/or did ask the victim what kind of underwear she was wearing and/or did grab his penis in front of the victim while stating “I bet you can’t handle this.”

Tuesday, July 21, 2015

disability - step 2 - severity

O’Keefe v. Colvin – ED Pa. -  July 20, 2015



 The Court will sustain O’Keefe’s objection that the Administrative Law Judge erred in holding his mental impairment did not meet the standard of severity in step two of the five-step sequential evaluation process used to determine if an individual is disabled.   Accordingly, O’Keefe’s request for review will be granted, and this case will be remanded to the Commissioner for further review consistent with this Memorandum.


The ALJ found at step two of the analysis that O’Keefe’s obesity was a severe impairment and that his hypertension and fatty liver disease, when combined, were also severe impairments. The ALJ also concluded, however, that O’Keefe’s affective disorder was best described as depression, NOS (not otherwise specified), and was nonsevere.


O’Keefe asserts that impairment severity is a “de minimis” inquiry and an impairment must be found severe if it imposes anything more than a minimal effect on claimant’s ability to work. He argues the ALJ failed to properly assess and weigh the material health evidence, and the ALJ did not properly analyze the expected duration of O’Keefe’s mental impairments despite evidence that his medical condition steadily declined after he entered a formal mental health center. The Court agrees and finds the ALJ did not use the appropriate standard when finding O’Keefe’s mental impairment was not severe.


“The burden placed on an applicant at step two is not an exacting one,” and “an applicant need only demonstrate something beyond ‘a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing Soc. Sec. Admin. Program Policy Statement, SSR 85-28, 1985 WL 56856, at *3 (1985)); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (“If the evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process should continue.”). Further, “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant.” McCrea, 370 F.3d at 360 (citing Newell, 347 F.3d at 546-47).


In making his decision as to disability, the ALJ does not have discretion to reject a medical expert’s opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical evidence, and he cannot “supplant[] the opinions of [the claimant’s] treating and examining physicians with his personal observation and speculation.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ must give the opinions of a claimant’s treating physician “substantial and at times even controlling weight.” See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 (3d Cir. 2008) (citation omitted). If rejecting a treating physician’s opinion outright, he may only do so “on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317 (citations and internal quotation marks omitted). In other words, the ALJ may not substitute his lay opinion for the medical opinion of a treating physician, especially in cases involving mental disabilities. See Id. at 319; Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014).


If an ALJ believes that the submitted reports are conclusory or unclear, it is “incumbent upon the ALJ to secure additional evidence from another physician.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); see also Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (“[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.”). According to SSA policies, the ALJ “must obtain an updated medical opinion from a medical expert” when additional medical evidence is received that “may change the State Agency’s medical or psychological consultant’s findings.” SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996); Morales, 225 F.3d at 319-20; accord 20 C.F.R. § 416.912(e) (stating that an ALJ may ask claimant to attend a consultative exam if evidence from claimant’s own medical sources are insufficient or nonexistent); 20 C.F.R. § 404.1517 (explaining if a claimant’s medical sources cannot or will not provide sufficient medical evidence about claimant’s impairment, an ALJ may ask the claimant to have one or more physical or mental examinations).


Wednesday, July 15, 2015

consumer - negligent misrepresentation

Gongloff Contracting v.  Kimball & Associates – Pa. Super. – July 8, 2015




The elements of a common law claim for negligent misrepresentation are:


“(1) a misrepresentation of a material fact; (2) made under circumstances in

which the misrepresenter ought to have known its falsity; (3) with an intent

to induce another to act on it; and (4) which results in injury to a party

acting in justifiable reliance on the misrepresentation.” Bilt-Rite, 866 A.2d

at 277 (quoting Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999)). Negligent

misrepresentation differs from intentional misrepresentation “in that the

misrepresentation must concern a material fact and the speaker need not

know his or her words are untrue, but must have failed to make a

reasonable investigation of the truth of these words.” Bortz, 729 A.2d at



Pennsylvania law generally bars claims brought in negligence that

result solely in economic loss. David Pflumm Paving & Excavating, Inc.

v. Foundation Services Company, 816 A.2d 1164, 1168 (Pa. Super.

2003) (“This Court has consistently denied negligence claims that cause only

economic loss”). However, a narrow exception is found in Section 552 of the

Restatement (Second) of Torts entitled, “Information Negligently Supplied

for the Guidance of Others,” and provides:


(1) One who, in the course of his business, profession or

employment, or in any other transaction in which he has a

pecuniary interest, supplies false information for the guidance of

others in their business transactions, is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon

the information, if he fails to exercise reasonable care or

competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1).



In Bilt-Rite, the Pennsylvania Supreme Court adopted Section 552

and held that it applied in:


cases where information is negligently supplied by one in the

business of supplying information, such as an architect or design

professional, and where it is foreseeable that the information will

be used and relied upon by third persons, even if the third

parties have no direct contractual relationship with the supplier

of information.


866 A.2d at 287. The adoption of Section 552 was not meant to “supplant[]

the common law tort of negligent misrepresentation, but rather, [to] clarify[]

the contours of the tort as it applies to those in the business of providing

information to others.” Id.