Friday, May 25, 2018

children - mental health disabilities - S.R. v. DHS - MD Pa. 2018


S.R. v. Dept. of Human Services – M.D. Pa. – March 23, 2018

DHS motion to dismiss denied in case brought by a plaintiff class of “all Pennsylvania youth under the age of 21 who, now or in the future, are adjudicated dependent and have diagnosed mental health disabilities.”   

Plaintiffs alleged that there have been “systemic failures in the Pennsylvania Child Welfare and Medical Assistance programs. “

Section 1983
Counts I and II are brought pursuant to 42 U.S.C. § 1983. (“Section 1983”).    In Count I, Plaintiffs allege that Defendants have violated Title XIX of the Social Security Act (“Title XIX” or the “Medicaid Act”), 42 U.S.C. § 1396a(a)(10)(A) and 1396a(a)(43)(C). Title XIX, Section 1396a(a)(10)(A) requires a state plan for medical assistance to “provide for making medical assistance available” to a list of enumerated eligible individuals. Section 1396a(a)(43) 5 requires the state plan to “provide for informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance . . . of the availability of early and periodic screening, diagnostic, and treatment services.” Section 1396a(a)(43)(C) requires the plan to provide for arranging those Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”) services.

In Count II, Plaintiffs allege that Defendants have violated Title XIX, Section 1396a(a)(8), which requires a state plan for medical assistance to “provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.”

Americans with Disabilities Act
In Count III, Plaintiffs allege that Defendants have violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), Section 504 of the Rehabilitation Act (“Section 504” or “RA”), 29 U.S.C. § 794, and their respective implementing regulations. Plaintiffs allege that the Defendants’ policies and practices fail to provide them with mental health services in the most integrated setting appropriate, and fail to afford equal access to other services to achieve stability and permanency based on their disabilities or the severity of their disabilities.

Thursday, May 24, 2018

LT - MDJ court - jurisdiction - tax sale - no LT relationship


Assouline v. Reynolds – Pa. Superior – March 9, 2018


Held:  Judgment for possession in LT action before magisterial district justice (MDJ) upheld in favor of purchaser (P) at a tax sale, in spite of lack of landlord-tenant relationship between the parties.    The court rejected homeowner’s argument that P should have brought action in ejectment rather than LT action before MDJ.

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Editor’s note:  This is an awful decision, just wrong on the law, I think.

Wednesday, May 16, 2018

debt collection - FDCPA - SOL - date of violation v. date of discovery of violation


Roskiske v. Klemm – 3d Cir. – May 15, 2018



This appeal requires us to determine when the statute of limitations begins to run under the Fair Debt Collection Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692 et seq.

The Act states that “[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court . . . within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation occurs, but when it is discovered. See Lembach v. Bierman, 528 F. App’x 297 (4th Cir. 2013) (per curiam); Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009).

We respectfully disagree. In our view, the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

Sunday, May 06, 2018

employment - prof. license - suspension - evidence in mitigation - ex parte evidence


Abruzzese v. State Board of Cosmetology – Cmwlth. Court – reported decision – April 156, 2018


Held:  Indefinite suspension of cosmetologist’s license because of a single-count felony conviction was improper, under the following circumstances:

            - prior to the suspension, claimant applied for and was granted a license,
            - claimant’s application included information about her criminal conviction
            - the Board’s only evidence was three documents relating to the criminal case – no testimony
            - claimant presented substantial evidence in mitigation to a hearing examiner
            - hearing examiner recommended suspension of license, but immediate stay of suspension, along with 2-years probation
            - Board reversed hearing examiner, ordered indefinite suspension, without consideration of mitigating evidence or hearing examiner’s decision
            - Board abused its discretion in rejecting recommendation of hearing examiner.

Improper consideration of ex parte evidence
Board improperly found that patrons of cosmetology salon were in a “vulnerable state while receiving services” – during which time they were separated from their personal belongings, including possible controlled substances prescribed by their treating physician.  There was “zero evidence” of this in the case record.   “Board members may not fill the gaps in the evidentiary record by using their personal knowledge. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 869 (Pa. Cmwlth. 2008) (holding that the personal knowledge of board members is not a substitute for record evidence). Board members must rely only upon the evidence of record in rendering an adjudication. It is a requirement of due process that an agency base “its adjudication on evidence admitted at the hearing and not on matters that are not in evidence.” Campbell v. Bureau of Professional and Occupational Affairs, State Board of Medicine (Pa. Cmwlth., No. 44 C.D. 2014, filed July 8, 2014), slip op. at 7 (unreported). We hold that the Board erred as a matter of law and abused its discretion by assuming facts not in evidence when it rejected the recommendation of both the Bureau and the hearing examiner.”

Mitigation evidence – abuse of discretion in failing to consider – improper to require written evidence to support testimony
            -The Board erred failing to consider that it had granted applicant a limited license, with the knowledge that she had a criminal conviction.  Limited license requires “good moral character.”
            - The Board improperly discounted testimony of claimant and her relatives, which it found, without evidentiary support, was biased.
            - There is no requirement that testimony be supported by documents, which are not preferable to oral statements.  “Written documents are not preferable to oral statements, as the Board mistakenly believes. There is no such evidentiary principle. See Commonwealth ex rel. Park v. Joyce, 175 A. 422, 424 (Pa. 1934) (“[T]here is no rule preferring written to oral statements.”). A document needs to be produced only where the contents of the writing are at issue. . . .The best evidence rule does not apply where the matter to be proved exists independently of the writing. . . . Whether Licensee assisted law enforcement and participates in ongoing therapy are facts that exist independent of written documentation that might also be probative. The Board incorrectly invoked the best evidence rule, which requires the submission of documents only where the contents of those documents are at issue. This was palpable error on the part of the Board.”

consumer - contracts - exculpatory clauses - public policy


Vinson v. Fitness and Sports Clubs, Inc. – Pa. Superior – May 4, 2018


The Pennsylvania Supreme Court has held that exculpatory provisions in contracts are valid where three conditions are met: “First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (holding exculpatory provision contained in contract regarding season pass at ski resort was valid and did not contravene public policy).

When embarking on a public policy analysis, we recognize that exculpatory provisions “violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1382 (Pa.Super. 1990).

Our Supreme Court has set a high bar that a party must clear before a court may invalidate a contract on public policy grounds: It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against public policy]. Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011) (citation omitted). “[P]ublic policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Id.

Thursday, May 03, 2018

UC - late appeal - pressure of life event not sufficient


Carney v. UCBR – Cmwlth. Court – January 19, 2018

Held:  Pressure of the particular life events in this case (birth of child, demands of starting a business) are not sufficient to excuse an untimely appeal.

Timely appeal is jurisdictional -- Failure to file a timely appeal as required by Section 501(e) of the Law is a jurisdictional defect. Russo v. UCBR, 13 A.3d 1000 (Pa. Cmwlth. 2010). The time limit for a statutory appeal is mandatory; it may not be extended as a matter of grace or indulgence. Id.

Exceptions - To justify an exception to the appeal deadline, Claimant must demonstrate that his delay resulted from extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances relating to Claimant himself. See id. This is an extremely heavy burden. Blast Intermediate Unit No. 17 v. UCBR, 645 A.2d 447 (Pa. Cmwlth. 1994); Reed v. UCBR, 406 A.2d 852 (Pa. Cmwlth. 1979).

Failure to notice appeal deadline - A claimant’s failure to notice the appeal deadline in a UC determination does not constitute a non-negligent circumstance justifying an untimely appeal. Reed; Delaney v. UCBR, 368 A.2d 1351 (Pa. Cmwlth. 1977). Thus, Claimant’s explanation that he failed to notice the appeal deadline in the determination he received from the Department is legally insufficient to excuse his failure to file a timely appeal.

Pressure of claimant’s particular life events not sufficient - The pressure of many life events is likewise insufficient to excuse an untimely appeal. This Court consistently rejects such excuses. See, e.g., Constantini v. UCBR, 173 A.3d 838 (Pa. Cmwlth. 2017), (ongoing legal issues, home computer network issues, and medical emergency appointments); Maloy v. UCBR (Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), 2016 Pa. Commw. Unpub. LEXIS 271 (unreported) (dealing with brother’s death, moving, and caring for daughter and sick mother); Burgher v. UCBR (Pa. Cmwlth., No. 1929 C.D. 2014, filed July 7, 2015), 2015 Pa. Commw. Unpub. LEXIS 461 (unreported) (anxiety and stress from layoff); Rabe v. UCBR (Pa. Cmwlth., No. 1785 C.D. 2013, filed February 24, 2014), 2014 Pa. Commw. Unpub. LEXIS 115 (unreported) (financial stress and multiple pending court cases); Menges v. UCBR (Pa. Cmwlth., No. 2230 C.D. 2009, filed April 22, 2010), 2010 Pa. Commw. Unpub. LEXIS 254 (unreported) (death in the family and lingering effects of a medical condition). We cite these decisions as persuasive. See 210 Pa. Code §69.414(a).

Major life events may excuse late appeal – “We do not suggest that a major life event can never furnish a sufficient non-negligent reason to allow an untimely appeal. See, e.g., Cook v. UCBR, 671 A.2d 1130 (Pa. Cmwlth. 1996) (en banc) (claimant showed non-negligent extraordinary circumstances justifying a late appeal, where he filed four days late because on the deadline for the appeal, he was hospitalized in a cardiac care unit after a collapse).”


employment - Uber - drivers held to be indpt. contractors

Razak et al. v.  Uber – ED Pa. – April 11, 2018


Held:  Uber’s MTD granted on issue of employee v. indpt. contractor.

UC - mailbox rule - evidence of mailing

Northeastern Eye Institute v.UCBR – Cmwlth. Court – December 27, 2017


UCBR decision vacated and case remanded for hearing on the mailbox rule, pursuant to Douglas v. UCBR, 151 A.3d 1188, 1192 (Pa. Cmwlth. 2016), where the court held that, in order for the mailbox rule to apply, “there must be some evidence … that the [N]otice was mailed. … Until there is proof that a letter was mailed, there can be no presumption that it was received.” Id. at 1192.   The implications of dismissal or negative action against a party in the face of claims that something which has bearing on critical filing times was “presumptively” received is too potent to not require underlying proof to support the presumption.   Here, there is no evidence of record or testimony demonstrating the notice of hearing was signed in the regular course of business and placed in the regular place of mail.

Tuesday, May 01, 2018

UC - willful misconduct - lack of willfulness - health reasons for absence - unreasonable rule


Klampfer v. UCBR – Cmwlth. Court – February 1, 2018

Held:  Claimant not guilty of willful misconduct for violating an employer rule concerning absences, where
            - she recently had heart surgery
            - employer granted her FMLA leave
            - she called off work four (4) times within 90 days of her return to work, for legitimate health reasons, in violation of employer rule
            - employer rule did not exempt legit. health reasons from its rule
            - claimant was not able to get doctor’s note until the very day that employer terminated her

No willful misconduct
An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. UCBR, 703 A.2d 452, 459 (Pa. 1997). 

It is “undisputed here that claimant’s absences ere due to illness.”    “[T]he law is clear that absence due to illness is not willful misconduct.” Green v. UCBR, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. UCBR, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, we do not discern willful misconduct based on the policy violation alone. Green.   

Here, as in Green, the Court did not discern any element of “willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. UCBR, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. UCBR, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. That Manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.  

In addition, a claimant with a documented illness has good cause for her absences. See, e.g., Phila. Parking Auth., 1 A.3d at 968 (“Physical illness can constitute good cause for a claimant’s noncompliance with an employer’s directive.”).   Moreover, Claimant’s uncontradicted testimony is sufficient evidence to establish good cause. Roberts v. UCBR, 977 A.2d 12 (Pa. Cmwlth. 2009) (reversing Board; holding claimant had good cause for rule violation under the circumstances based on claimant’s uncontradicted testimony). A claimant is not required to produce medical testimony to substantiate her illness; her own uncontradicted testimony is competent evidence of her illness. Phila. Parking Auth., 1 A.3d 965

Unreasonable application of employer rule
A claimant’s violation of an employer’s sick leave policy may be valid cause for discharge, but not for a denial of UC benefits. Phila. Parking Auth. v. UCBR  (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition). In Philadelphia Parking Authority, the claimant reached her maximum sick leave under the policy, such that additional sick days led to discipline. As a result, she requested and received approved FMLA leave. Nonetheless, the employer discharged her for noncompliance with its sick leave policy. In concluding the claimant did not commit willful misconduct, we explained, “apply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5. The Policy here permits the discharge of an employee who is ill four times within a 90-day period regardless of the circumstances. Claimant is recovering from open-heart surgery. Claimant was absent because of illness four times in the two weeks following her medical leave. In light of these circumstances, Employer did not prove Claimant’s absences rose to the level of willful misconduct. Runkle; Green.

And because Claimant’s absences due to illness do not show a deliberate disregard for Employer’s interests, the Board erred as a matter of law in determining that Claimant’s four call offs within 90 days constituted willful misconduct.

UC - indpt. contractor - self-employment - claimant not self-employed


HPM Consulting v. UCBR – Cmwlth. Court (2-1) – April 13, 2018

Held:  Claimant, a safety consultant, not self-employed, despite written agreement stating that he was an independent contractor. 

Presumption that individual is an employee
“Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that—(a) such individual has been and 4 will continue to be free from control or direction over the performance of such services both under [his] contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. “ 43 P.S. § 753(l)(2)(B).

“The purpose of Section 4(l)(2)(B) [of the Law] ‘is to exclude independent contractors from coverage.’ Beacon Flag Car Co., Inc. (Doris Weyant) v. Unemployment Comp[.] [Bd.] of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). ‘This provision presumes that an individual is an employee.’ Id. However, ‘this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of [his] service and that, as to such service, was customarily engaged in an independent trade or business.’ Id. ‘Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.’ Id. Minelli v. UCBR, 39 A.3d 593, 595-96 (Pa. Cmwlth. 2012).

The employer did not overcome the strong presumption of Claimant’s status as an employee. See Famularo Catering, Inc. v. Dep’t of Labor & Indus., 125 A.3d 866, 869 (Pa. Cmwlth. 2015) (quoting Electrolux Corp. v. Dep’t of Labor & Indus., Bureau of Employer Tax Operations, 705 A.2d 1357, 1359–60 (Pa. Cmwlth. 1998) (“[A] person receiving remuneration for services rendered is presumed to be employed and therefore to have ‘employment’ within the meaning of the [Law] . . . .”)). “[T]he record here lacks any evidence that Claimant customarily engaged in an independent business . . . .” Jia v. UCBR, 55 A.3d 545, 549 (Pa. Cmwlth. 2012). “Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence.” Id. “The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.” Id.

Agreements not dispositive
The Commonwealth Court has “repeatedly held that the existence of an independent contractor agreement is not dispositive of the work relationship,” Lello v. UCBR,  59 A.3d 1153, 1159 (Pa. Cmwlth. 2013).  Nor is the fact that the claimant did not receive a W-2 form dispositive of the issue.   In fact, the contracts here “contain ample evidence supporting Claimant’s presumptive employee status which HPM, who had the burden, did not overcome. For example, the contracts specified Claimant’s hourly rate of pay as well as his overtime rate of pay, and per diem expenses. . . ..  In addition, the contracts expressed that Claimant’s home trips “will be scheduled with approval from the job site” and he consented to drug testing at the jobsite. . . . Further, they provided that Claimant was responsible for his steel tip boots and clothing but would be furnished all necessary equipment at the job site.

Wednesday, April 25, 2018

UC - determination - reopening/revision - no time limit


Narducci v. UCBR – Cmwlth. Court – 4-14-18 – reported, for publication - 3-judge panel


Held:  Department had jurisdiction to re-open a case ten (10) months after it had awarded claimant UC benefits, to reverse its initial determination, and to impose a fault overpayment. Employer got notice of initial application for benefits, but did not challenge the claim in any way at that time.   Instead, more than 15 days after receiving the notice, the employer requested relief from charges, based on allegations that on their face would constitute willful misconduct.  Claimant had told the UCSC that he was out of work because of lack of work and was granted benefits because his application was facially valid.   After the Department heard from the employer, it issued a revised determination, holding that claimant was ineligible because of willful misconduct and imposing a fault overpayment.   Claimant challenged the revised determination as being beyond the applicable time limits and thus outside of the jurisdiction of the Department.  The Court rejected that argument, holding gthat “because the Department does not have a specific time limit during which it must issues notices of determination,  it....had jurisdiction to issue” a revised determination in this case.”

The Court discussed the applicable law in considerable detail and summarized it as follows:

[U]nder Section 501 [43 P.S. sec. 821] of the Law, when a claim is filed, the following is to occur:

            · Employer is to receive notice that a claim is filed, and if it opposes the grant of benefits, employer should provide information within 15 days as to why benefits should not be granted.

            · If an employer does not provide information within 15 days giving reasons why the claim should not be granted, the following is to occur:
                        ·  If the claim is facially valid, then benefits can be granted without a notice of determination being issued;
                        · If the claim is not facially valid and denied, then a notice of determination is issued from which a claimant can take an appeal.

            · No notice of any determination is required to be given to an employer who has not provided information that the claimant is ineligible.

            · If an employer files information after 15 days that claimant should be declared ineligible for benefits, then the employer is entitled to a notice of determination regarding its challenge to claimant’s unemployment eligibility.

            · The Department has no time limit to make a revision to an eligibility determination based on employer’s information that a claimant is not eligible for UC benefits.

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