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.


Tuesday, June 30, 2015

debt collection - fdcpa - "materiality"

Jensen v. Pressler & Pressler – 3d Cir. – June 30, 2015





McKEE, Chief Judge.


We are asked to decide whether a false statement in a communication from a debt collector to a debtor must be material in order to be actionable under a provision of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e. We conclude that materiality is required, as it is subsumed within the “least sophisticated debtor” standard that has traditionally governed FDCPA claims. Because we do not find the misstatement at issue in this case material, we will affirm the District Court’s grant of summary judgment to Pressler & Pressler and Midland Funding, LLC.

Friday, June 26, 2015

UC - willful misconduct - absences

Beck v. UCBR – Cmwlth. Court – unreported memorandum opinion – June 16, 2015



Absences alone, although possibly grounds for discharge, do not necessarily constitute willful misconduct. Vargas v. Unemployment Compensation Board of Review, 486 A.2d 1050, 1051 (Pa. Cmwlth. 1985). At least one of the following elements must be present to justify the denial of benefits: (1) excessive absenteeism; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of an employer’s policy; or (5) disregard of warnings. Id. at 1052. “An employer has the right to expect [its] employee[s] to maintain regular working hours and to comply with office procedures.” Unemployment Compensation Board of Review v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976).


Once the employer meets its burden, the burden of proof shifts to the employee to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. 1976). Whether a claimant has good cause to violate a work policy is a question of law subject to our review and should be viewed in light

of all of the attendant circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).



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




UC - vol. quit - substantial change in working conditions and compensation - retaliation

WFG Natl. Title Insurance Co. v. UCBR – Cmwlth. Court – June 25, 2015 – unreported memorandum opinion



Claimant worked as a vice president of agency sales. His compensation was an annual salary of $105,000, plus commission.   In September 2013, Employer advised Claimant that he would be working under the direction of a new supervisor. In light of problems involving harassment and profanity that he was experiencing with his former supervisor, however, Claimant deemed it time to “go on the record” and registered a formal complaint with Employer’s human resources department outlining the behavior of his former supervisor and how it had increased his anxiety and led to a higher dose of medication.  Although Employer conducted an investigation, it dismissed Claimant’s allegations and took no disciplinary action against the former supervisor.


In October, 2013, Claimant’s new supervisor presented him with an itemization of new goals and expectations for the fall of 2013.  Part of the new plan involved the exclusion of Claimant’s top two income producing clients, something that would would result in a pay decrease of approximately 15% - 20% yearly.”  Another part of the new plan included the expectation that Claimant would achieve an average of ten new agents per month, despite that fact that Employer, as a whole, “achieve[d] only slightly higher than ten new agents per month.”  Soon thereafter, Claimant met with both his former and current supervisors, expressing his dissatisfaction with the new plan. In response, they advised Claimant that there would be no changes and that “he would be expected to conform to the new expectations.”  Claimant believed that the new plan constituted retaliation for his formal complaint.  Claimant quit his job “due to his belief [that] the new goals and expectations represented a unilateral change to his job duties and contained unachievable expectations.”


A claimant bears the burden of proving necessitous and compelling cause for leaving his or her job.   In order to show such cause, the claimant must establish that: “(1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve [his] employment.”  While we recognize that cause of a necessitous and compelling nature may exist where an employer has instituted an unreasonable, unilateral change in the employment agreement, mere dissatisfaction with reasonable modifications in working conditions is not considered good cause for a voluntary quit. Kistler v. UCBR, 416 A.2d 594, 597 (Pa. Cmwlth. 1980). It is up to the claimant to establish that the change was so unreasonable and so burdensome that a reasonable person under like circumstances would have been compelled to quit. Unangst v. UCBR, 690 A.2d 1305, 1307-08 (Pa. Cmwlth. 1997).


Where an employer modifies the method by which it pays its employees, such as altering the basis for commissions, necessitous and compelling cause for a voluntary quit may be established. #1 Cochran, Inc. v. Unemployment Comp. Bd. of Review, 579 A.2d 1386, 1390 (Pa. Cmwlth. 1990). While a significant reduction in pay may constitute necessitous and compelling cause, Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 914 (Pa. Cmwlth. 1984), there is no talismanic percentage figure to denote a sufficiently substantial reduction in pay from one that is not. Each case must be decided on its own circumstances. Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).


In concluding that Claimant established necessitous and compelling cause for his voluntary quit, the Board weighed the evidence and found significance in both the combination and relatively quick succession of events. These events included Claimant’s reassignment to a new supervisor, Employer’s unwillingness to act on Claimant’s formal complaint, the substantial reduction in his compensation and presentation of the memo itemizing unachievable new goals and expectations. The proverbial “last straw” occurred at the supervisors’ meeting with Claimant when they refused to negotiate the unreasonable goals outlined in the memo. As the Board determined, it was not unreasonable for Claimant to conclude that Employer’s presentation of unattainable targets was retaliation for his recent complaint, which resulted in no action being taken by Employer. Accordingly, accepting Claimant’s version of the events and weighing the evidence, the Board concluded that Employer’s substantial and unilateral changes, done in the spirit of retaliation, constituted necessitous and compelling cause for Claimant’s voluntary quit. We agree.




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, June 25, 2015

UC - wages - sec. 401(a) and 404 - claimant must earn at least 49.5% of wages outside of highest quarter

Alla v. UCBR – Cmwlth. Court – Junbe 25, 2015 -



It is a claimant’s burden to prove that he is financially eligible for unemployment benefits. Devine, 101 A.3d at 1237; Pagliei v. UCBR, 37 A.3d 24, 26 (Pa. Cmwlth. 2007). To be financially eligible for benefits, a claimant must satisfy the earnings requirements of sections 401 and 404 of the Law for his base year. 43 P.S. §§801(a), 804. Claimant received a payout of accrued sick, annual, and personal leave upon his separation in the third quarter of 2013 in the amount of $30,728. This payment was properly characterized as wages, and, absent evidence that Employer generally makes accrued leave payments in a different manner, it was properly included in the quarter in which it was paid by Employer to calculate Claimant’s base year wages. Id.; 34 Pa. Code §61.3(a).   Claimant did not earn at least 49.5% of his earnings outside his highest quarter for the qualifying base year.   Thus, Claimant is financially ineligible for unemployment compensation benefits under sections 401(a) and 404 of the Law.


Pa. Constitution - legislative procedure - single subject, change of original purpose

Leach v. Commonwealth – Cmwlth. Court – June 25, 2015 – en banc 7-0



Held: Act 192 violates Pennsylvania Constitution Article III, Section 1 and Section 3, relating to original purpose and single subject.


Act No. 192 of 2014, which began as a two-page bill establishing criminal penalties for the theft of secondary metals.   In the final stages of enactment, it became an act that also created a civil cause of action for a broad class of individuals and organizations seeking to challenge municipal firearm legislation, and it authorized an award of attorney fees to successful challengers in the newly-created civil action.


Tuesday, June 23, 2015

FMLA - oppty. to cure insufficient medical certification - 3d Cir.

Hansler v. Lehigh Valley Hospital Network – 3d Cir. – June 22, 2015



Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network, under the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. She submitted a medical certification requesting leave for two days a week for approximately one month.  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, in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act. Accordingly, we reverse and remand for further proceedings.


The Department of Labor’s regulations govern how employers are to respond to perceived deficiencies in medical certifications. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). A certification is “incomplete” if the “employer receives a certification, but one or more of the applicable entries have not been completed.” Id. A certification is “insufficient” if the “employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” Id. If the employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.” Id.; see Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 837 (7th Cir. 2014) (“[T]he regulations do not authorize the employer to deny FMLA leave where the employee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.”).


Hansler does not argue on appeal that her certification established the “extended period of time” requirement under the FMLA, and we do not decide that issue here.   Instead, Hansler maintains she was entitled to the cure period set forth in the regulations because the certification was insufficient, rather than negative on its face. We agree.  When a certification submitted by an employee is “vague, ambiguous, or non-responsive” the employer must, under 29 C.F.R. § 825.305(c), provide the employee an opportunity to cure the deficiency within seven days.   Cf. cases discussing negative certifications.  Although the First, Sixth, and Seventh Circuits appear to agree that “employers have no responsibility to conduct further investigation when a certification is invalid on its face,” the cases discussing negative certifications do not apply where a court or employer are considering an ambiguous or non-responsive certification. Hoffman, 394 F.3d at 418-19.



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