Thursday, June 23, 2016

drivers license - suspension - delay in reporting conviction

Capizzi v. DOT – Cmwlth. Court – June 23, 2016


As a general rule, delays in reporting driving convictions to DOT do not negate a license suspension, unless a) the delays are chargeable to DOT and b) the delay results in prejudice to the driver.  However, a suspension can be negated where the delay is extraordinarily long (e.g. seven or eight years) and results in prejudice, even if the delay is attributable to the clerk of courts, rather than DOT.  See, Gingrich v. Department of Transp., Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016).


Wednesday, June 22, 2016

custody - relocation

D.K.D. v. A.L.C. – Superior Court – June 15, 2016


The Court reversed the grant of mother’s relocation motion (Florida), where she had already moved with the child, and ordered the return of the child to Pennsylvania, in custody of father.

The court held that “the record will not sustain the trial court’s consideration of the § 5337(h) relocation factors. Specifically, the trial court erred in (1) finding that Mother would not further thwart Father’s relationship with L.D. following relocation; (2) ignoring that Mother’s principal motivation was to return to her native state of Florida and her concern for L.D.’s developmental condition was secondary; (3) accepting as adequate, Mother’s chiefly symbolic search for employment opportunities in Pennsylvania; and (4) concluding that Mother’s financial condition was so strained that relocation to Florida was unavoidable. “

These errors implicated five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and warranted reversing the trial court’s decision to grant Mother’s petition for relocation.   As the trial court's conclusions are unreasonable as shown by the evidence of record, the court could “....not accept the court’s conclusion that relocation is in L.D.’s best interest.”




The Court reversed the grant of mother’s relocation motion (Florida), where she had already moved with the child, and ordered the return of the child to Pennsylvania, in custody of father.

The court held that “the record will not sustain the trial court’s consideration of the § 5337(h) relocation factors. Specifically, the trial court erred in (1) finding that Mother would not further thwart Father’s relationship with L.D. following relocation; (2) ignoring that Mother’s principal motivation was to return to her native state of Florida and her concern for L.D.’s developmental condition was secondary; (3) accepting as adequate, Mother’s chiefly symbolic search for employment opportunities in Pennsylvania; and (4) concluding that Mother’s financial condition was so strained that relocation to Florida was unavoidable. “

These errors implicated five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5), (6), and (7) and warranted reversing the trial court’s decision to grant Mother’s petition for relocation.   As the trial court's conclusions are unreasonable as shown by the evidence of record, the court could “....not accept the court’s conclusion that relocation is in L.D.’s best interest.”


appeals - per curiam affirmances - how to interpret

Brentwood Borough School District v. Held – Pa. Supreme Court – June 20, 2016


There are two kinds of per curiam affirmances (PCAs):

            - PCAs adopting the opinion below --  thereby signaling the Court’s approval of the mandate and adoption of the reasoning of the court below, see, e.g., Commonwealth v. Greene, 81 A.3d 829 (Pa. 2013), and


            - PCAs affirming only the order below.  In these cases, the Court offers neither approval nor disapproval of the reasoning below; the Court either agrees with the mandate, or at a minimum, is unconvinced the appellant has made a sufficient showing to disturb that result. See Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (when Court issues per curiam affirmance, “[u]nless we indicate that the opinion of the lower tribunal is affirmed per curiam, our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition”) (emphasis in original). 

Tuesday, June 21, 2016

admin. law - Chevron deference - procedure for adoption of regs - reasons for change of regs

Encino Motorcars v. Navarro – US SCt – June 20, 2016 (6-2)


1.  Chevron deference is not warranted where a regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.

A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme. . . .  When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that “relatively formal administrative procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev­ron should apply. . . But Chevron deference is not warranted where the regulationis “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.


2.  One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. Where the agency has failed to provide even a minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. Agencies are free to change their existing policies, but in explaining its changed position, an agency must be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.”  Here, the regulation in question, which involved a change of position, was issued without a reasoned explanation.

One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the factsfound and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). That requirement is satisfied when the agency’s explanation is clear enough that its “path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974). But where the agency has failed to provide even that minimal level ofanalysis, its action is arbitrary and capricious and so cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43.

Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. . . . .Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” . . . . But the agency must at least “display awareness that it is changing position” and “show that there are good reasons for the new policy.” . . . .“In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” . . . .It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” . . . An arbitrary and capricious regulation of this sort is itself unlawful and receives no Chevron deference.



Wednesday, June 01, 2016

UC - willful misconduct - lateness - car problems

Shiloh Home Care v. UCBR – Cmwlth. Court – May 18, 2016 – unreported memorandum decision


Claimant not guilty of willful misconduct for violating employer’s lateness policy.  Her car had broken down.  She could not afford to buy another car.  Her alternate means of transportation (family and friends) was not reliable.  The Court relied on Bell Socialization Services v. UCBR, 74 A.3d 1146 (Pa. Cmwlth. 2013).
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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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This is Gerry Studzinski’s case, MPLS-York.


Tuesday, May 31, 2016

foreclosure - lockout of owner - damage to property - insurance -

Davis v. Wells Fargo Bank – 3d Cir. – May  27, 2016


In this federal follow-up to a foreclosure case, Michael Earl Davis is pursuing a variety of claims against an entity 3 that he calls “Wells Fargo U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust, 2005-11.” It is the purported holder of Davis’s mortgage, and we will refer to it as “Wells Fargo” or “the bank.”1 Davis has also sued Assurant, Inc., believing it to be the provider of insurance on his home. His claims against both Wells Fargo and Assurant arise from damage that occurred to his house after Wells Fargo had locked him out of it, damage that went unrepaired and worsened into severe structural problems.

The United States District Court for the Eastern District of Pennsylvania dismissed Davis’s claims against Wells Fargo, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that claim preclusion and a statute of limitations barred recovery. We will affirm that portion of the District Court’s order.

The District Court also dismissed all of Davis’s claims against Assurant, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. The Court reasoned that Davis lacked standing to bring those claims because he sued the wrong corporate entity, namely Assurant, when he should have sued Assurant’s wholly-owned subsidiary, American Security Insurance Company (“ASIC”). That conclusion about standing was in error.

Standing is indeed a jurisdictional predicate, but, rightly understood, this case is not about standing at all.   An analysis of standing generally focuses on whether the plaintiff is the right party to bring particular claims, not on whether the plaintiff has sued the right party. The latter question goes not to standing and jurisdiction but to the merits of the claims themselves. Therefore, the District Court erred in considering the claims against Assurant under Rule 12(b)(1) rather than Rule 12(b)(6). That difference has important consequences here. In the end, the difference between those rules of procedure dictates that we vacate that portion of the District Court’s order dismissing Davis’s breach of contract claim against Assurant and remand for further proceedings.
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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)



Tuesday, May 10, 2016

disability - ADA - charging admission for personal care attendants of disabled persons

Anderson et al. v. The Franklin Institute – E.D. Pa. – May 6, 2016


Held:  FI’s policy of charging separate admission fees for the government-funded personal care attendants (PCA) of people with disabilities violated the Americans with Disabilities Act, 42 USC 12181 et seq., and corresponding regulations, 28 CFR 36.101 et seq.  FI’s policy effectively doubled the cost of admission for the class of disabled persons who need PCAs to help with aspects of daily living.

In 1990, Congress enacted the ADA “to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’ ” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001). 11 Title III of the ADA and its implementing regulations prohibit “public accommodations,” including museums, theaters, stadiums, and other places “of exhibit entertainment,” from discriminating against people with disabilities. 42 U.S.C. § 12181(7)(C)&(H). Specifically, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination under the ADA includes failure to afford an individual or class of individuals the equal opportunity to participate in or benefit from a good, service, or facility as able-bodied individuals on the basis of disability. 42 U.S.C. § 12182(b)(1)(A)(ii); see generally 42 U.S.C. § 12101. An entity can also be held liable for ADA discrimination for failing to reasonably modify its policies and practices to accommodate individuals with disabilities absent proof “that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, a “public accommodation may not impose a surcharge on [disabled persons] to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide [those individuals] with the nondiscriminatory treatment required by the Act or this part.” 28 C.F.R. § 36.301(c).

The above statutory requirements and definitions have been condensed by the case law into a three part test: “[t]o state a claim of disability discrimination under Title III of the ADA, a plaintiff must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor or operator.” See, e.g., Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011) (internal citations omitted); Dempsey v. Pistol Pete's Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009).   The court held that that plaintiffs satisfied this test, concentrating its analysis on part two: the right to full and equal enjoyment of goods and services.
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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)


Tuesday, May 03, 2016

UC - willful misconduct - rule violation - good cause for non-compliance - circumstances

Bell v. UCBR – Cmwlth. Court – April 26, 2016 – unpublished memorandum opinion*


“The fact that the claimant knew the employer rules and did not strictly comply with it does not necessarily require a finding of willful misconduct.”  Circumstances may provide good cause for lack of compliance.

In this case, claimant had a very minor accident (knocked over a mailbox).  Employer rules required the immediate reporting of accidents.  Claimant didnt report until he returned to the office.  Circumstances included that: the accident was very minor; claimant’s cell phone did not work, nor did his partner’s; his partner, who was senior to him, advised that it was ok not to report until returning to the office; claimant reported immediately upon return to the office.
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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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