Wednesday, July 20, 2016

criminal history record - expungement - summary conviction - "five years following"

Commonwealth v. Giulian – July 19, 2016 – Pa. Supreme Court


We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and conclude the lower courts erred in holding expungement unavailable as a matter of law in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18 Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time, appellant was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S. §5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking, 18 Pa.C.S. §6308(a), to which she pleaded guilty.   Appellant was then arrested on September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18 Pa.C.S. §3304.  

Appellant has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her criminal history record under Section 9122(b)(3), which provides: (b) Generally.--Criminal history record information may be expunged when: * * * (3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense. (ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense. 18 Pa.C.S. §9122(b)(3).

The Court agreed with appellant that the Superior Court incorrectly read into the statute a requirement that the five arrest-free years be “immediately” following the conviction sought to be expunged, when the actual text of the statute does not include that qualifier.
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Tuesday, July 19, 2016

UC - late appeal - non-negligent conduct of claimant

Claimant allowed to appeal nunc pro tunc from decision that she had received fault overpayments where --

            - Claimant received benefits between 11-16-13 and 5-24-14
            - On May 15, 2015, the Dept. issued an overpayment notice, charging fault OP
            - Claimant had moved from her old address, at which she received benefits, about a year before the OP notice was sent
            - CL eventually learned of OP notice and filed appeal, beyond appeal date
            - Claimant had not provided forwarding address to USPS because she was being hounded by creditors

Court held that under applicable late appeal jurisprudence, e.g., Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008), the “non-negligent conduct of the claimant” exception should be applied.  Nothing that CL did was negligent.  She had moved more than a year after her benefits had ended and had no duty or reason to let UC authorities know of this.   The testimony showed that CL had an unstable housing situation and moved to avoid creditors, but not that she was in any way negligent.

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

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





Friday, July 15, 2016

civil procedure - complaint - right to amend - PaRCP 1033

Blackwood, Inc. v. Reading Blue Mtn. and Norther Railroad Col – Superior Court – July 15, 2016


Under Pa.R.C.P. 1033, a party can amend his pleading either with the consent of the other party or with the court’s permission. “Leave to amend lies within the sound discretion of the trial court and the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.” Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996)).

Under the pertinent rule: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa.R.C.P. 1033. However, amendment is not permitted to present a new cause of action where the statute of limitations has expired. See Phillips v. Lock, 86 A.3d 906 (Pa.Super. 2014).

Generally, an abuse of discretion occurs if a complaint is dismissed without leave to amend. Hill, supra. “There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. However, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” Id. at 557 (citation and emphasis omitted).
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Tuesday, July 12, 2016

housing - service/support animal - reasonable accommodation

Kennedy House v. Phila.  Commission on Human Relations – Cmwlth. Court – June 11, 2016


Held, that refusal to allow woman to have her dog live with her, in residence with no-dog policy, did not violate city fair housing ordinance or federal Fair Housing Act, 42 USC 3604(f).  There is an extensive discussion of federal fair housing statutes and regs.   Potential tenant did not establish the nexus between her disability and the assistance provided by her dog.
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Friday, July 08, 2016

UC - accident - negligence v. willful misconduct

General Pipe Cleaning and Sewer v. UCBR – Cmwlth. Court – July 7, 2016 – unpublished* memorandum opinion


The court affirmed the UCBR decision that claimant truck-driver had not committed willful misconduct as a result of his negligence in causing an accident, which caused $100,000 damage.  Substantial evidence supported the Board’s findings that
            a)  claimant was discharged because of the accident, and not a violation of ER rules.
            b) claimant did not deliberately cause the accident – cf. Heitczman v. UCBR, 638 A.2d 461 (claimant knowingly violated ER rule)

Claimant’s actions in causing the accident and the damage to the employer’s vehicle, were clearly negligent. Negligence, however, is not willful. Therefore, as repeatedly held by the courts benefits cannot be denied under Section 402(e) of the Law. See Myers [v. Unemployment Comp. Bd. of Review, 625 A.2d 622 (Pa. 1997)]; Navickas [v. Unemployment Comp. Bd. of Review, 787 A.2d 284 (Pa. 2001)]; Grieb [v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002).

The courts have repeatedly held that for a rule violation to constitute willful misconduct, the violation must be done knowingly and deliberately. Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943 (Pa. Cmwlth. 2004); BK Foods, Inc. v. Unemployment Comp. Bd. of Review, 547 A.2d 873 (Pa. Cmwlth. 1988); Kriebel v. Unemployment Comp. Bd. of Review, 426 A.2d 1240 (Pa. Cmwlth. 1981); Frazier v. Unemployment Comp. Bd. of Review, 411 A.2d 580 (Pa. Cmwlth. 1980); Holomshek v. Unemployment Comp. Bd. of Review, 395 A.2d 708 (Pa. Cmwlth. 1979). Claimant’s inadvertent conduct here does not amount to willful misconduct.
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* An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

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


Thursday, July 07, 2016

UC - statute v. regulation - registration requirement - exceptions - recall to work

Dept. of Labor & Industry v. UCBR – Cmwlth. Court – June 8, 2016 – unreported* memorandum opinion


The Court upheld that Board’s decision, which found that claimant was exempt from the registration requirement of 401(b)(1)(l), 43 P.S. 801(b)(1)(l), because she had been recalled to work.  The court rejected the Dept.’s argument that its regulation, 34 Pa. Code 65,11(g)(2), which required a recall date in writing, prevailed of the statute, 43 P.S. 801(b)(5), which did not.  The employer notice of recall in this case was oral, not written.

Section 401(b)(6) authorizes the Board to “waive or alter” the registration requirement where “compliance with such requirements would be oppressive or ... would be inconsistent with the purposes of this act.” 43 P.S. §801(b)(6). Stated otherwise, an untimely registration is not “a per se violation that automatically disqualifies a claimant from unemployment.” Department of Labor and Industry, 131 A.3d at 600.   The court agrees with the “the Board’s case-by-case approach to evaluating whether a claimant had good cause for failing to timely register for employment search services under Section 401(b)(1)(i) of the Law” and to exercise its judgment accordingly. Id. at 602.

The Board’s discretion to “waive or alter” the registration requirement “is aligned with the remedial and humanitarian objectives of the Law, as set out in 43 P.S. 752.

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

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




Wednesday, July 06, 2016

IFP - denial - reasons

Lynch v. Gittelmacher – Cmwlth. Court – Kjune 8, 2016 – unreported* memorandum opinion


The lower court erred when it denied an IFP petition without giving reasons.  Pa. R.C.P. No. 240 (c)(3) requires that , “ If the petition is denied, in whole or in part, the court shall briefly state its reasons.”

An order denying in forma pauperis status in a civil case is a final and appealable order because “[a] litigant who is denied the ability to bring a cause of action due to his true inability to pay the costs is effectively put out of court.” Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005).

“A trial court’s belated 1925(a) opinion does not cure this problem, since the brief statement of reasons enables the party to correct any defects in the petition and the 1925(a) opinion does not.” Goldstein v. Haband Company, Inc., 814 A.2d 1214, 1215 (Pa. Super. 2002).

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

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



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