Friday, July 20, 2018

UC - voluntary quit - voluntary layoff option proviso of sec. 402(b)


Phila. Regional Port Authority v. UCBR – July 20, 2018 – en banc – reported decision

Held:  Claimant was eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) because she opted to participate in a voluntary separation incentive program offered by Employer.

The Voluntary Layoff Option (VLO) Proviso of Section 402(b) of the Law states as follows: An employe shall be ineligible for compensation for any week – *** (b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature…Provided further, That no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy[.] 43 P.S. §802(b).

The court relied on the Supreme Court’s ruling in Diehl v. UCBR, 57 A.3d 1209 (Pa. 2012).   Recognizing that the Law does not define “layoff,” the Supreme Court concluded that the term should be construed consistent with “common parlance,” which encompasses “both temporary and permanent separations initiated by the employer.” Diehl, 57 A.3d at 1218 . It then considered whether an early retirement plan offered in the context of a workforce reduction is the equivalent of “an option of accepting a layoff.” The Supreme Court concluded that they were the same, stating “Given that we must interpret eligibility sections broadly in favor of the employee, we find no language that prevents the interpretation of the term layoff to include this employer-initiated, early retirement packages [sic] offered pursuant to a workforce reduction. Diehl, 57 A.3d at 1222.

“The plain language of the VLO Proviso does not support Employer’s contention that a “plan” must be one that targets specific employees, or positions, 12 and must have been agreed to by the separating employee in advance of its need. Neither Diehl nor its progeny support Employer’s proffered requirements. Claimant accepted a layoff from an available position pursuant to Employer’s Voluntary Separation Incentive Program. As the Board correctly determined, Claimant is eligible for benefits under the VLO Proviso.”

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Monday, July 16, 2018

housing - fair housing - rental due date - date of receipt of disability benefits


Fair Housing Rights Center v. Morgan Properties – ED Pa. – June 29, 2018 – (24 pp.)

Defendant’s motion for summary judgment denied on Plaintiff’s claim that Defendant, by its policy of refusing to permanently adjust the rental due date of its apartments for SSDI recipients, violates the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. §§ 3601-3619. FHRC argues that MPMC's policy violates the FHAA's "reasonable accommodation" provision of 42 U.S.C. § 3604(f)(3)(B), and that the policy has a disparate impact on the disabled in violation of 42 U.S.C. § 3604(f)(1)(A).

custody - incarcerated parents - due process


S.T. v. R.W. – Pa. Super. – June 29, 2018 – reported decision

Held: Incarcerated mother denied due process when lower court rejected her request for contact with the parties’ 9 year-old daughter, with whom mother, formerly a physician, had not had contact since her incarceration.  The trial court conducted an ex parte hearing without affording mother either notice that she could ask to be present or giving her an alternate meaningful opportunity to be heard.  The lower court also misapplied the current cutody law.

From the opinion:

Standard of review -  A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary. Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super 2017) (quoting Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015)

Custody cases involve fundamental rights protected by due process - In custody hearings, parents have at stake fundamental rights: namely, the right to make decisions concerning the care, custody, and control of their child. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). . . .and see also generally D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016). Due process must be afforded to parents to safeguard these constitutional rights. “Formal notice and an opportunity to be heard are fundamental components of due process when a person may be deprived in a legal proceeding of a liberty interest, such as physical freedom, or a parent’s custody of her child.” J.M. v. K.W., 164 A.3d 1260; 1268 (Pa. Super. 2017) (en banc) (quoting Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (emphasis added). It is well settled that “procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” Id., at n. 5 (citing Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005); see also Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process is flexible and calls for such procedural protections as the situation demands”

Right of parent to appear in person – writ of habeas corpus ad testificandum -  Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994) - “Incarcerated prisoners who petition the court for visitation rights are entitled to a hearing, to notice of this hearing, and to notice of their right to request that they be present at the hearing, by means of a writ of habeas corpus ad testificandum.” Id. (Citing Vanaman v. Cowgill, 526 A.2d. 1226 (Pa. Super. 1987)). This holding has since been codified in both the Pennsylvania Rules of Civil Procedure and in the Schuylkill County Local Rules of Procedure.  The note to Pa.R.C.P. 1930.4(a)(“Service of Original Process in Domestic Relations Matters”) provides: “Original process served on an incarcerated person in a domestic relations action must also include notice of any hearing in such action and specific notice of the incarcerated [parent’s] right to apply to the court for a writ of habeas corpus ad testificandum.”  See also,  Rule 1930.3, which gives courts a means to accommodate any party or witness who may not be available to attend a hearing in person. The rule provides: “With the approval of the court J-S20012-18 - 12 - upon good cause shown, a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.” Pa.R.C.P. 1930.3. Neither telephonic, nor audiovisual, nor electronic communication was even mentioned by the court in Sullivan. Rule 1930.3 now provides courts with a previously unavailable option.

The court’s solution in Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994), which allowed an incarcerated parent to file an “informal brief” is “outdated” and inadequate to address due process concerns -- An “informal brief” or “written statement” submitted prior to the trial cannot possibly equate a meaningful opportunity to be heard under the current state of our substantive and procedural laws.   Notice ensures that each party is provided adequate opportunity to prepare and thereafter advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment. Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005).   Parties cannot expose all the relevant factors if they cannot advocate for themselves in real time, i.e., cross-examine witnesses of the other party and respond to arguments.

The Etter factors -  In M.G. v. L.D. 155 A.3d 1083, 1093 (Pa. Super. 2017), we found the trial court should have considered factors unique to prison cases which were previously delineated in Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. 1996).”   Without specifically stating so, in M.G. we acknowledged the Etter factors are now assimilated into § 5328(a) analysis under § 5328(a)(16). See P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27, 2018) (holding that the shared custody factors set forth in Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to the Custody Law, assimilated into the custody factors set forth in 23 Pa.C.S.A. § 5328(a)).

The Etter presumption did not survive the statutory amendments – Although the Etter factors have assimilated into our current Custody Law, the presumption set forth in Etter – that incarceration alone “is a basis for creation of a presumption, to be rebutted by the prisoner parent, that such visitation is not in the best interest of the child-- did not survive the amendments to the custody statutes.   The legislature, in amending our Custody Law, provided no such presumption in incarceration cases.  Our legislature contemplated when a presumption would arise, as well as how to treat parents’ criminal histories; it provided no such presumption against incarcerated parents. Indeed, not only is this presumption absent from our statutes, but any such presumption would run afoul of the advances our courts have made in proceedings conducted under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency Court Benchbook references the Pennsylvania State Roundtable Dependent Children of Incarcerated Parents 2013 Workgroup Report. The report states: [I]n most cases, children benefit from visitation and contact with a parent who is incarcerated. Children feel enormous grief and loss when they are unable to maintain contact with a parent. It is almost the same when a parent has died. Children also worry about a parent that they cannot see or talk to on a regular basis. […] Visitation and contact can reduce some of their worries and sad feelings.

Held:  Because Mother was not notified of her right to request to be present, Mother’s was deprived her right to due process. Additionally, Mother was deprived her right to have her modification petition adjudicated under the current Custody Law’s analyses for physical and legal custody. Therefore, we vacate the trial court’s order in this matter and remand for a new hearing.
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Saturday, July 14, 2018

UC - willful misconduct - disparate treatment


Allen v. UCBR – Cmwlth. Court – June 12, 2018 – reported, precedential decision

Held:  Claimant committed willful misconduct by violating employer rule prohibiting the use of profane, abuse, or threatening language toward fillow employees and others, even though both claimant and his supervisor used racial slurs in an exchange of emails. 

The referee, board, and court all upheld different consequences for Claimant, who was fired, and his supervisor, who was not, based on findings that claimant was the instigator of the altercation, and had used threatening language (including reference to a weapon).

From the opinion:

Disparate treatment is “an affirmative defense” that can excuse conduct that might otherwise be willful misconduct - a claimant who has engaged in willful misconduct may still receive benefits....” Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).   

Disparate treatment is not proven where there is a difference in the alleged employee misconduct  -  Bays v. UCBR,  437 A.2d 72 (Pa. Cmwlth. 1981) (illegal work stoppage in which some were “ringleaders” and others were “reluctant participants”)

Disparate treatment based on race is improper... - In the seminal case, Woodson v. UCBR, 336 A.2d 867 (Pa. 1975), the employer discharged the claimant (and others) for excessive absenteeism. Our Supreme Court held that the employer did not prove willful misconduct because its work rule against excessive absenteeism had been enforced in a racially discriminatory manner. It held:”[W]e cannot sanction the Bureau’s acceptance of an employer’s standard which expects certain conduct from black employees, but not from white employees. The use of such a standard to determine unemployment benefits constitutes state action based on the racially discriminating policies of an employer. This is prohibited.”

Disparate treatment improper even where race is not involved -City of Beaver Falls v. UCBR, 441 A.2d 510 (Pa. Cmwlth. 1982), this Court considered the city’s inconsistent enforcement of its requirement that city employees had to live in the city.   Drawing on Woodson, 336 A.2d 867, we explained the need for consistent enforcement of a work rule as follows: The [Supreme] Court held that a standard of conduct which an employer may expect of an employee must be equally applied to both blacks and whites. We believe that such a consideration is equally applicable where racial discrimination is not involved. Beaver Falls, 441 A.2d at 512.  An employer’s “inconsistent enforcement of its [work rule] did not establish such a standard of conduct with which it could reasonably expect its employees to comply.” Id. Stated otherwise, a written work rule that is not enforced uniformly is no more than a piece of paper.”   Inconsistent enforcement of a work rule defeats the existence of the work rule. Beaver Falls, 441 A.2d 510.  An employer cannot pursue haphazard enforcement of its work rule and expect that rule to be dispositive of a claimant’s eligibility.   To be sure, an employer may change its enforcement policy from one of a lax posture to one of zero tolerance, but it must warn employees of the new strict enforcement policy.  

Employers have some discretion in deciding when to punish a rule violation - It is not the Board’s province to usurp the management prerogative of the employer, which must decide on a case-by-case basis what discipline to impose when a work rule infraction occurs. Geisinger, 964 A.2d 970 (holding that a discharge for multiple infractions of a computer policy did not render the work rule a nullity because other employees, with far fewer violations, were not discharged).

The Board overstated the holding in Bays -  Here, the Board stated that “Commonwealth Court has held that ‘the mere fact that one employee is discharged for willful misconduct and others are not discharged for the same conduct does not establish disparate treatment.’” Board Adjudication at 1 (quoting American Racing, 601 A.2d at 483) (emphasis added). In actuality, this quoted sentence was not the holding in American Racing but, rather, a characterization of the Bays decision, where there was a common thread to the willful misconduct of multiple employees, i.e., participation in a work stoppage. However, the employees acted differently during that work stoppage and, thus, were disciplined differently. This single sentence from American Racing, which overstates the principle established in Bays, is obiter dictum. The Board has erroneously made it the holding of American Racing, and it is not. . . .The holding in American Racing was, simply, that refusal to follow a directive constitutes willful misconduct, and there was no suggestion that insubordination was generally tolerated by the employer.




Wednesday, June 06, 2018

child abuse - expungement - reasons for decision - ALJ who wrote decision different from ALJ who conducted hearing


A.G. v. DHS – June 6, 2018 – unreported* memorandum decision – Pa. Cmwlth.


A. G. (Mother) petitions for review of the Order of the Department of Human Services denying Mother’s appeal from an indicated report identifying her as a perpetrator of child abuse on the ChildLine and Abuse Registry (Registry) under the Child Protective Services Law (CPSL).

The Bureau adopted an Administrative Law Judge’s (ALJ) Recommendation, in which the ALJ found that Mother did not rebut, with her testimony, the presumption of abuse in Section 6381(d) of the CPSL, 23 Pa. C.S. § 6381(d). **

Mother argues the ALJ’s findings are not supported by substantial evidence and that the ALJ erred in applying the presumption.

Because the ALJ issuing the Recommendation did not also preside over the hearings at which the witnesses testified, and the bases for the ALJ discrediting Mother’s testimony are unclear, our ability to perform effective appellate review to determine whether the presumption in Section 6381(d) was properly applied is hampered. Accordingly, we vacate the Department’s Order adopting the ALJ’s Recommendation and remand for issuance of a new decision clearly setting forth the reasons for crediting/discrediting the evidence and a new order based upon those credibility determinations.

** Section 6381(d) provides: Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. 23 Pa. C.S. § 6381(d).

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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


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).

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