UC - voluntary quit - follow-the-spouse - newly-married couple

Pa. Gaming Control Board v. UCBR - Cmwlth. Court - May 23, 2012 (2-1 decision)


http://www.pacourts.us/OpPosting/Cwealth/out/927CD11_5-23-12.pdf

Facts - Claimant was last employed in August 2010, as a full-time administrative assistant for the Pennsylvania Gaming Control Board. She began dating her future spouse in May of 2008. In August of 2008, her future spouse enlisted in the United States Coast Guard, which sent him to Louisiana, where he was stationed and purchased a residence. In May, 2010, the claimant was married to her spouse. In August 2010, the claimant voluntarily resigned her employment to relocate to Louisiana to be with her spouse. The claimant and her spouse had an insurmountable commuting distance. The claimant and her spouse could not afford to maintain two residences.

The court rejected the Employer's argument that the follow-the-spouse rule does not apply at all, because Claimant’s husband relocated to Louisiana before the couple married. Employer’s argument ignored the fact that under Schechter v. UCBR, 491 A.2d 938 (Pa. Cmwlth. 1985), the "follow-the-spouse" doctrine is applicable to a situation where a claimant begins a marriage living apart from a spouse and later moves to be with the spouse, provided that necessitous and compelling reasons otherwise exist for the move. In such an instance, whether a spouse relocated prior to the marriage is irrelevant to the analysis. Here, it is similarly irrelevant that Claimant’s spouse relocated at a time prior to the couple’s marriage.

The Court also held that claimant showed a nececessitous and compelling reason to locate, under the Schlecter analysis. She showed an economic hardship, an insurmountable commuting distance, and that the move was for reasons beyond mere personal choice. Thus, although Claimant was not required to establish that her spouse’s relocation was beyond her control, she, nevertheless, still was required to and did establish that her own relocation to Louisiana following her marriage was for necessitous and compelling reasons and not merely due to personal preference.

The Board specifically found that an "insurmountable commuting distance" existed, the couple "could not afford to maintain two residences" (as Claimant was not maintaining a residence while she lived in Pennsylvania with her parents), and that Claimant’s spouse "was relocated by the United States Coast Guard to Louisiana where he was currently stationed and purchased a residence." Although Claimant’s testimony reveals that her decision to relocate to where her husband was currently stationed involved some personal preference, Claimant’s testimony revealed that the other factors identified above (i.e., economic hardship and insurmountable commuting distance) also played a role in her decision. Based upon those factors, it is apparent that Claimant acted reasonably and with good faith in making her decision to relocate. The Board, therefore, did not err in concluding that cause of a necessitous and compelling nature existed for Claimant to voluntarily terminate her employment.

consumer - UDAP - deceptive or misleading conduct v. fraud - pleading

Bennett v. A.P. Masterpiece Homes - Superior Court - March 6, 2012


http://www.pacourts.us/OpPosting/Superior/out/a03006_12.pdf

Held: Plaintiff in a consumer protection case alleging misleading or deceptive conduct need not plead or prove elements of common law fraud, reversing a line of contrary Superior Court decisions.

The UTPCPL provides a private right of action for anyone who “suffers any ascertainable loss of money or property” as a result of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).

Section 201-2(4) lists twenty enumerated practices which constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL also contains a catchall provision at 73 P.S. § 201-2(4)(xxi).

The pre-1996 catchall provision prohibited “fraudulent conduct” that created a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4)(xvii). In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added).

Under this "catchall" provision, a plaintiff does not need to allege or prove common law fraud. The court rejected its own decisions which continued to apply pre-amendment law that required pleading and proving the element of fraud, such as. Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa.Super. 2010) (stating catchall section requires proof of common law fraud); Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006) (stating same); Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa.Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1242 (2000) (stating same); Skurnowicz v. Lucci, 798 A.2d 788 (Pa.Super. 2002) . Despite the addition of language regarding deceptive conduct, these post-amendment cases do not discuss the 1996 amendment in any detail, or consider what effect it might have on the catchall provision.

Commonwealth Court decisions - The Superior Court adopted the holding in the contrary line of case from Commonwealth Court. See, e.g., Commonwealth v. Percudani, 825 A.2d 743, 746-47 (Pa.Cmwlth. 2003) (holding 1996 Amendment to Section 201-2(4)(xxi) provides liability for deceptive conduct). These cases view the 1996 addition of “deceptive conduct” as substantively altering the catchall provision and allowing for liability based on the less restrictive standard of “deceptive conduct.” Com. ex rel. Corbett v. Manson, 903 A.2d 69, 74 (Pa.Cmwlth. 2006) (permitting catchall liability for deceptive conduct and rejecting Superior Court’s continued interpretation of Section 201-2(4)(xxi) as requiring proof of common law fraud). See also Com. v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, 2011 WL 4056170 (Pa.Cmwlth. 2011) (stating Commonwealth Court has adopted “deceptive” standard under post-amendment catchall section of UTPCPL because language of 1996 amendment signaled approval of less restrictive pleading requirements); Pennsylvania Dept. of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n.28 (Pa.Cmwlth. 2010) (applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts). In rejecting this Court’s postamendment interpretation of the catchall provision, the Commonwealth Court found Skurnowicz inapplicable to post-amendment cases because Skurnowicz did not acknowledge the 1996 amendment and relied on preamendment case law to hold the catchall section required proof of common law fraud.

Federal court decisions - Most Pennsylvania federal courts similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision. See Schnell v. Bank of New York Mellon, ___ F.Supp.2d ___, 2011 WL 5865966 (E.D.Pa. Nov. 22, 2011) (stating deceptive conduct is sufficient to satisfy catchall provision); Vassalotti v. Wells Fargo Bank, N.A., 732 F.Supp.2d 503, 510 n.7 (E.D.Pa. 2010) ; Wilson v. Parisi, 549 F.Supp.2d 637 (M.D.Pa. 2008); Chiles v. Ameriquest Mortg. Co., 551 F.Supp.2d 393, 398-99 (E.D.Pa. 2008). Like the Commonwealth Court, the federal courts examining this issue were persuaded by the revised statutory language of the catchall provision and our Supreme Court’s directive to read the UTPCPL broadly. Seldon v. Home Loan Services, Inc., 647 F.Supp.2d 451, 469 (E.D.Pa. 2009). Accord Genter v. Allstate Property and Cas. Ins. Co., 2011 WL 2533075 (W.D.Pa. June 24, 2011); Haines v. State Auto Property and Cas. Ins. Co., 2009 WL 1767534 (E.D.Pa. June 22, 2009); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427 (E.D.Pa. 2002); In re Patterson, 263 B.R. 82 (Bankr.E.D.Pa. 2001). Federal court generally declined to follow the Superior Court’s post-Amendment precedent because the Superior Court cases relied on pre-amendment interpretations of the catchall section without acknowledging the 1996 amendment. Seldon, supra at 469; Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa. 2007) (rejecting post-amendment cases from Superior Court because they rely on authority that interpreted preamendment catchall provision).

tax sale - "proof of mailing"

Horton v. Washington Co. Tax Claim Bureau - Cmwlth. Court - May 21, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/75CD11_5-21-12.pdf

Section 602 of the Real Estate Tax Sale Law, 72 P.S. §5860.602(e)(2), requires that notice of a scheduled tax sale be provided by three separate methods: publication at least thirty days prior to sale; notification by certified mail at least thirty days prior to sale; and posting on the property at least ten days prior to sale. 72 P.S. §5860.602(a), (e).

With respect to the notice by certified mail, the statute also states that if a return receipt is not received from the property owner, "then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address…." Section 602(e)(2) of the Law, 72 P.S. §5850.602(e)(2) (emphasis added).

Consistent with the decision in In Re: York County Tax Claim Bureau Donalynn Properties, Inc. v. York County Tax Claim Bureau, 3 A.3d 765 (Pa. Cmwlth. 2010), the court held that the "proof of mailing" requirement in section 602(e)(2) of the Law can only be satisfied by the use of a USPS certificate of mailing, also known as USPS Form 3817.

The holding in York County is based on

- the statutory language in the context of the Law’s other notice provisions. The Court observed that all other types of mailing specified in the statute are USPS services and that the phrase "proof of mailing" immediately follows "United States first class mail," which is exclusively USPS terminology. Based on the plain language alone, the Court concluded that the legislature intended "proof of mailing" to mean a USPS form and determined that the only official record providing that proof was a USPS certificate of mailing.

- a need for statewide uniformity with respect to the ten-day notice, which is the final notice sent to a property owner before a tax upset sale.

- the minimal burden that requiring a USPS certificate of mailing imposes on county tax bureaus.

Right to Counsel - Statute of 11 Henry VII - article

A new article explores the possibility of civil right to counsel arguments based on the incorporation of English common law that provided for a right to counsel. It's Taking the English Right to Counsel Seriously in American 'Civil Gideon' Litigation, 45 U. Mich. J.L. Reform 635 (2012), available at http://ssrn.com/abstract=1753407

There is a lot in the article about the Statute of 11 Henry VII, c. 12, which also includes a right to proceed in forma pauperis. The Statute says

[E]very poor person or persons which have & hereafter shall have cause of action or actions against any person or persons within the realm shall have, by the discretion of the Chancellor of this realm, for the time being writ or writs original and writs of subpoena according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, . . . [a]nd that the said Chancellor for the same time being shall assign . . . Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in like wise the same Justices shall appoint attorney and attorneys for the same poor person or persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels, help, and business in the same . . .

The Statute of 11 Henry VII is incorporated into the law of Pennsylvania by virtue of Pa. C.S. § 1503(a). The Statute is cited in a number of Pennsylvania cases, including Thompson v. Garden Court, Inc., 419 A.2d 1238 (Pa. Super. 1980), where the court said

“Indulgence toward poor persons in bringing their actions has existed from an early period . . . .” 15 Stand.Pa.Prac.-Costs s 125 at 681 (1965). Under the Statute of 11 Henry VII, c. 12 (1494),

(E)very poor person or persons, which have, or hereafter shall have cause of action or actions against any person or persons within this realm, have, by the discretion of the Chancellor of this realm for the time being, writ or writs original, and writs of subpoena, according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, nor to any person for the writing of the same writ or writs to be hereafter sued; . . .“

This statute is part of the common law of Pennsylvania, Report of the Judges, 3 Binn. 593, 617 (1808); 1 Pa.C.S.A. s 1503 (1964-78 Pamphlet), and provides relief from filing fees and court costs to in-digent persons in the commencement and prosecution of civil actions. Mitek v. Ste-Mel Signs, Inc., 222 Pa.Super. 395, 294 A.2d 813 (1973); 3 Goodrich-Amram 2d s 1137:1 at 427 n. 8.

See also, Madden v. City of York, 59 Pa. D. & C. 2d 367, 369-70 (Ct. Com. Pl. 1972) and Mitek v. Ste-Mel Signs, 294 A.2d 813 (Pa. Super. 1972) (cited in Davila v. Soto, 378 A.2d 443 (Pa. Super 1977); Zerr v. Scott, 39 Pa. C & C 3d 459 (CP Berks 1985); In re Community Legal Services, 43 Pa. D & C 2d 51 (CP Phila. 1967).

Megan's Law - registration - homelessness

Commonwealth v. Demmitt - Pa. Super. May 2, 2012

 

http://www.pacourts.us/OpPosting/Superior/out/E02007_10.pdf

 

The Commonwealth of Pennsylvania appeals the July 15, 2009 order entered in the Centre County Court of Common Pleas that granted Harvey Elwood Demmitt, Jr.’s motion for a new trial after a jury convicted him of failing to comply with registration of sexual offender requirements pursuant to 18 Pa.C.S.A. § 4915(a)(1).

 

The Commonwealth argues Appellee was not entitled to a new trial as Megan’s Law1 should not be construed to allow sexually violent predators to circumvent the requirement of registering a location as their “residence” by asserting a defense of homelessness. We agree and reverse.

UC - job offer contingent on claimant dropping UC claim

Big Mountain Imaging v. UCBR - Cmwlth. Cour - April 30, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/2138CD11_4-30-12.pdf

An offer of employment may not be contingent on an employee waiving his right to collect unemployment benefits, Claimant had good cause to reject Employer’s offer. Section 701 of the Law, 43 P.S. §861 (no agreement by employee to release rights under this act shall be valid); see Lee v. UCBR, 33 A.3d 717 (Pa. Cmwlth. 2011) (an employer cannot accept a settlement of an unemployment compensation claim); Pitt. Chem. & Sanitary Supply Co., Inc. v. UCBR, 9 A.3d 274 (Pa. Cmwlth. 2010).

sec. 1983 - qualified immunity - private entity doing public function

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

SUPREME COURT OF THE UNITED STATES

Syllabus

FILARSKY v. DELIA

No. 10–1018. Argued January 17, 2012—Decided April 17, 2012

Respondent Delia, a firefighter employed by the City of Rialto, California, missed work after becoming ill on the job. Suspicious of Delia's extended absence, the City hired a private investigation firm to conduct surveillance on him. When Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation. It hired petitioner Filarsky, a private attorney, to interview Delia. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify Delia’s claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials. Delia brought an action under 42 U. S. C. §1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Court of Appeals for the Ninth Circuit affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.

Held: A private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983. Pp. 4-16.

Syllabus
(a)
In determining whether the Court of Appeals made a valid distinction between City employees and Filarsky for qualified immunity purposes, this Court looks to the general principles of tort immunities and defenses applicable at common law, and the reasons the Courthas afforded protection from suit under §1983. See Imbler v. Pachtman, 424 U. S. 409, 418. The common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-timepublic servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level.Government work was carried out to a significant extent by individ- uals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government’s work, the common law did not draw distinctions based on the nature of a worker’s engagement with the government. Indeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself. Common law principles of immunity were incorporated into §1983 and shouldnot be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should notvary depending on whether an individual working for the governmentdoes so as a permanent or full-time employee, or on some other basis. Pp. 4–11.

(b)
Nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule. First, the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business— which has been called “the most important special government immunity-producing concern,” Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual suedas a state actor works for the government full-time or on some otherbasis. Second, affording immunity to those acting on the government’s behalf serves to “ ‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’ ” Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees. Finally, distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to “ ‘reasonably anticipate when their conduct may give rise to liability for damages,’ ” Anderson v. Creighton, 483 U. S. 635, 646. Pp. 11-13.

(c)
This conclusion is not contrary to Wyatt v. Cole, 504 U. S. 158, or Richardson v. McKnight, 521 U. S. 399. Wyatt did not implicate the reasons underlying recognition of qualified immunity because the defendant in that case had no connection to government and pursued purely private ends. Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work. Pp. 13-15.

621 F. 3d 1069, reversed.
ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-BURG, J., and SOTOMAYOR, J., filed concurring opinions.

UC - willful misconduct - rule violation - proof of rule - threats to co-worker

Lewis v. UCBR - Cmwlth. Court - April 16, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/1552CD11_4-16-12.pdf

Proof of employer rule

The employer failed to present adequate evidence of the rule that claimant was accused of violating. - An employer witness provided the only evidence regarding a work policy when he stated, in response to a question about whether Claimant should have known that a heated argument was prohibited in the workplace, “We have rules and regulations and also we have [a] harassment policy.” Critically, Employer did not identify any specific rule or policy that Claimant violated, nor did it present any documentary evidence of such a policy.

Testimony that Employer has “rules and regulations” and a “harassment policy” is insufficient to establish the type of policy that the UCBR found Claimant violated. See Pennsylvania National Insurance Company v. UCBR, 531 A.2d 832, 834 (Pa. Cmwlth. 1987) (finding no willful misconduct where there was no evidence of a specific rule that the claimant violated); Goodson v. UCBR, 424 A.2d 1019, 1020 (Pa. Cmwlth. 1981) (finding no willful misconduct where the employer’s witnesses failed to specify what company regulation the claimant violated). Even if Employer had proven the existence of a policy, however, the UCBR made no finding that Claimant was aware or should have been aware of it. Therefore, we conclude that Employer failed to prove Claimant’s deliberate violation of a work rule.

Threats to a co-worker

While it is true that threats of harm toward a co-worker (CW) may disqualify an employee from receiving benefits, see Andrews v. UCBR, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993), there is no evidence here that Claimant threatened a co-worker. The only evidence Employer presented regarding any threat was Claimant’s written statement that the co-worker said that he [the co-worker] carries guns and Claimant’s response that he had been shot before and was not afraid of guns. Claimant himself did not threaten to use firearms. According to Claimant, the CW then "went on about how [tough] he was and I went on about how [tough] I was to [sic]."

An employee’s remark to another employee that he is "tough," without more, cannot be construed as a threat of physical harm disqualifying him from receiving benefits. See Blount v. UCBR, 466 A.2d 771, 773 (Pa. Cmwlth. 1983) (noting that, where an employee’s offensive remark to another employee was justifiably provoked and of a de minimis nature, it did not constitute willful misconduct).7 Furthermore, the UCBR made no findings, nor was there any evidence, that Claimant used profanity or offensive language during the argument or that there was any physical contact between the two men. Thus, we cannot conclude that Claimant’s behavior rose to the level of willful misconduct.

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