Sunday, December 14, 2014

UC - voluntary quit, sec. 402(b) - vol. layoff - claimant not ineligible under Diehl rationale

Naval Surface Warfare Center v. UCBR – Cmwlth. Court – December 12, 2014

Sec. 402(b) does not  render a claimant ineligible where he leave under a “Voluntary Layoff Option” (VLO), because his separation from employment was due to his acceptance of a layoff pursuant to an established employer plan which is part of a labor force reduction.

Following the decision in Diehl v. UCBR, 57 A.3d 1209 (Pa. 2012), the court also held the claimant does not have the burden to show a necessitous and compelling reason for leaving a job where the VLO language of sec. 402(b) applies, i.e. where the retirement offer made to Claimant was offered as a part of an established plan by Employer that had the practical effect of a workforce reduction.

Section 402(b) of the Law provides that an employee shall be ineligible for unemployment compensation in any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling reason. 43 P.S. § 802(b). However, the VLO Provision within Section 402(b) cautions:

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.

In Diehl, the Supreme Court examined the language of the VLO Provision and the intent of the General Assembly, as expressed in Section 3 of the Law.6 The Court highlighted the broad humanitarian objective of the Law expressed in Section 3, and recognized that a cardinal principle of the Law is that the eligibility sections must be construed liberally and the disqualification sections construed narrowly so that an unemployed worker shall be denied benefits only where the plain language of the Law unequivocally excludes the worker from receiving unemployment compensation. Diehl, 57 A.3d at 1217-1218; see also Penn Hills School District v. Unemployment Compensation Board of Review, 437 A.2d 1213, 1216 (Pa. 1981).

 The Diehl Court stressed that Section 402(b) establishes an exclusionary rule for claimants who have left employment without a necessitous and compelling reason, but that the VLO Provision is an eligibility carve-out from this disqualification provision that must be construed broadly in favor of the claimant seeking unemployment compensation. Diehl, 57 A.3d at 1221.  Looking at the VLO language as a whole, the Court stated that “the VLO Proviso applies to employees accepting employer offered early retirement packages as part of a labor force reduction, because such programs are merely a different way to accomplish the workforce reduction of a layoff.” Id. at 1222.

 The Commonwealth Court rejected the employer's argument that unemployment compensation benefits are only available when employment is terminated due to a RIF (reduction in force), as opposed to a VERA (voluntary early retirement authority). This interpretation of the Law conflicts with the plain language of the VLO Provision and was unequivocally rejected in Diehl, where the Supreme Court overruled Commonwealth Court precedent and made clear that the VLO Provision applies when a layoff is voluntary. Id. at 1221.

 Following Diehl, the issue of whether the separation was forced and whether a claimant’s decision was motivated by an objective fear that if the voluntary offer was not taken the separation from employment could later lead to a termination of employment, are not determinative of whether a claimant is eligible for UC benefits under the VLO Provision. Instead, the focus is on whether the facts demonstrate that the separation was due to a claimant’s acceptance of a “layoff.”

 In the instant matter, the evidence demonstrated that the offer of early retirement was initiated at the will of Employer and accepted by Claimant, that Claimant accepted the offer from an available position, and that the early retirement offer was made pursuant to a plan established by Employer. (R. Item 17, Board H.T. at 7, 8-9.) This evidence, along with the evidence that Claimant was “otherwise eligible,” created a presumption that Claimant was eligible for unemployment compensation under the VLO Provision. Diehl, 57 A.3d at 1222. The burden then shifted to Employer to demonstrate that the early retirement offer was not a “layoff.” Employer failed to carry this burden.

 The evidence in the record "clearly supports the Board’s determination that the practical effect of Employer’s plan was a layoff of Claimant.  Employer’s witness testified that under the VERA plan, employees in various positions “were identified as the starting point for a restructuring effort within [Employer’s] organization,” as “surplus or positions that were no longer needed in the workforce.”

Tuesday, November 11, 2014

open records - right to know law - request must be addressed to agency open-records officer

Gaming Control Board v. Office of Open Records – Pa. Supreme Court – November 10, 2014

In this open-records matter, we are called upon to construe Section 703 of the Right-to-Know Law (RTKL), 65 P.S. § 67.703 (“Section 703”), setting forth the  requirements for written RTKL requests for access to public records, to determine proper application of the provision which directs that all such requests “must be addressed to the open-records officer.”
For reasons stated below, we hold that in order to establish a valid RTKL request sufficient to trigger appellate rights from a nonresponse under the RTKL, the requestor must address his request to the respective open-records officer as mandated in Section 703.  In the case at bar, the requester addressed his request to a press aide, not the open records officer.
Commonwealth Court 4-3 decision reversed.


custody - jurisdiction - UCCJEA sec. 5423

TAM v. SLM and DMS – Superior Court – November 7, 2014

Non-custodial father's complaint to modify was properly addressed to Pennsylvania court, where

            - original order was entered in Tennessee in 2004

            - Mother was missing – disappearance being investigaged as homicice

            - pursuant to Tennessee order in 2011, maternal grandmother had physical custody of the  child in Pennsylvania , which is home state under secs. 5421 and 5423

            - grandmother's assertion that father was judge-shopping irrelevant to jurisdictional issue.*

* Tennessee judge "has found the father to be a despicable individual"

terroristic threats - out-of-state threats - jurisdiction

Commonwealth v. Vergilio – Superior Court – November 6, 2014

Pennsylvania court has juridiction over crime of terroristic threats, 18 Pa. C.S. 2706(a)(1), where the plaintiff was in Pennsylvania and heard the threats of defendant, who was in New Jersey, on the telephone.

Current technology that creates a “seemingly unlimited ability to connect people near and far.”  A contrary holding would render an offender who utters a threatening message in one state immune from suit in any and all other states to which he intentionally sends his illegal communication.

Long-standing principles in this Commonwealth hold that “[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects[7] within it, justify a state in punishing the cause of the harm. . . .”

Although our extensive research of this issue did not reveal any Pennsylvania caselaw that has addressed the specific issue presented here,8 we find the pertinent caselaw of other jurisdictions to be (citing caselaw from Kansas, Minnesota, Hawaii).

Monday, November 10, 2014

employment - wrongful discharge - worker's comp.

Owens v. Lehigh Valley Hospital – Cmwlth. Court – November 7, 2014

A former at-will employee who alleged wrongful termination for having reported a work-related injury and having received benefits states a claim for relief for wrongful discharge, even if she has not filed a claim petition.

Section 315 of the Workers’ Compensation Act, 77 P.S. § 602. This provision recognizes that payment to an employee for a work-related injury by an employer may be made without a claim petition being filed, and that such agreements do not deprive an employee of the statutory right to file a claim petition should the agreement fail to sufficiently compensate the employee.

The Workers’ Compensation Act reflects both the historical quid pro quo between employers and employees, and the public policy of the Commonwealth. If an employer could discharge an employee for a work-related injury because the employee received payment in lieu of compensation, rather than compensation administered by the Bureau, the public policy embodied by the Workers’ Compensation Act would be undermined. . . .

Such a holding would create an incentive for employers to steer employees away from filing workers’ compensation petitions in order to retain the right to discharge the employee due to the injury, the exact harm the General Assembly intended to prohibit by enacting the Workers’ Compensation Act.

Appellant may ultimately be unable to carry her burden to establish that her injury was work-related and that the payments she received were for this injury. Employer may be able to demonstrate that there was a separate, plausible, and legitimate reason for Appellant’s discharge. However, these are considerations beyond the reach of preliminary objections; on demurrer, Appellant’s claim is sufficient.


federal diaability benfits - attachment - alimony/support

Uveges v. Uveges – Superior Court – November 5, 2014

Husband's disability benefits under federal statute, Longshore and Harbor Workers' Compensation Act, 33 USC 901 et seq., may be attached to pay his alimony obligation, despite anti-attachment clause of LHWCA, because

- alimony is not a debt under42 USC 659 (SSA  garnishment provision), which allows attachment for support/alimony

- wife is not a creditor

- LWHCA disability payments are "remuneration for employment" under sec. 659

UC - financial eligibility

Logan v. UCBR – Cmwlth. Court – November 10, 2014

Claimant not financially eligible for UC benefits, because

            - her only income during her base year was worker's comp. benefits, which are not "wages" – Swackhammer v. UCBR, 484 A2d 851 (`984)

            - under alternate base year analysis under 77 PS 71(b), wages she had earned in otheere quarters had already been used for payment of benefits under a prior application and could not be used again in subsequent application. Lewis v. UCBR, 454 A2d 1191


Thursday, June 19, 2014

abuse - expungement - indicated v. founded report - appeal - notice and oppty. to be heard in court proceeding

J.M. v. DPW – Cmwlth. Court – June 19, 2014

"Indicated" report of abuse by admin. agency was changed to "founded" after a court dependency hearing in which child was found to have been abused by stepfather, appellant here.  Stepfather appealed the administrative decision but not the court decision, as to which he claimed that he had not received notice.  Held:  hearing was necessary to deteermination whether stepfather had notice of the dependency hearing.

DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement” of a founded report. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069, 1078 (Pa. Cmwlth. 2008); see also C.S. v. Dep’t of Pub. Welfare, 972 A.2d 1254, 1263-64 (Pa. Cmwlth.) (holding, in case wherein petitioner was never specifically named as perpetrator of abuse in underlying dependency proceeding, that “a separate administrative hearing before BHA is not necessary if there is substantial evidence to support the findings made in the dependency proceeding that the appellant was the perpetrator of the abuse of the minor” (emphasis omitted)), appeal denied, 987 A.2d 162 (Pa. 2009)  

However, a founded report of child abuse constitutes an “adjudication” under the AAL, and pursuant to the AAL, “[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” J.G., 795 A.2d at 1092 (quoting 2 Pa. C.S. § 504). Because it is unclear whether J.M. was afforded these due process protections in the underlying dependency proceeding before the trial court, we conclude that BHA erred in denying J.M.’s appeal without a hearing.   See, J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), and K.R. v. Department of Public Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008).

The court vacated DPW’s order and remand the matter for a hearing on the limited issue of whether stepfather  had reasonable notice of the dependency hearing and an opportunity to be heard in that proceeding. If stepfather  was not provided with these due process protections, then the underlying dependency adjudication cannot serve as the basis for the founded report.

The stepfather's due process argument held not to be a collateral attack on the underlying dependency adjudication. Similar to the reasoning in R.F., the issue here is whether the underlying dependency adjudication is one upon which a founded report can be based. That is, his argument in this regard is not a challenge to the underlying dependency adjudication itself, but is instead a challenge to the use of that adjudication as support for a founded report absent due process. Nevertheless, if due process concerns are satisfied, then his second argument on appeal, relating to good cause, would constitute an impermissible collateral attack on the underlying dependency adjudication.  

If stepfather was afforded reasonable notice and an opportunity to be heard in the underlying dependency proceeding, but did not take advantage of that opportunity, then he would not be entitled to a hearing before BHA.  

contracts - duty of good faith and fair dealing - damages

MyServiceForce v. American Home Shield – ED Pa. – June 17, 2014

Good faith and fair dealing

A claim for a breach of the duty of good faith and fair dealing is a contract claim3 under which a plaintiff has to establish the following in order to succeed on its claim: “(1) the existence of a contract, (2) breach of the contract, and (3) damages which flow from the breach.” Life Care Ctrs. of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, 79 F.3d 496, 514 (6th Cir. 1996). See also Sewer Auth. of City of Scranton v. Pa. Infrastructure Inv. Auth., 81 A.3d 1031, 1041-42 (Pa. Commw. Ct. 2013) (“The elements of a breach of contract are (1) the existence of a contract, (2) a breach of the duty imposed by the contract and (3) damages resulting from the breach.” (quoting Orbisonia-Rockhill Joint Mun. Auth. v. Cromwell Twp., 978 A.2d 425, 428 (Pa. Cmmw. Ct. 2009))).

3  Under both Pennsylvania and Tennessee law, a claim for breach of the duty of good faith and fair dealing is a breach of contract action. See McAllister v. Royal Caribbean Cruises, Ltd., Civ. A. No. 02-2393, 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (citing Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp. 2d 623, 643 (E.D. Pa. 2001); Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 400 (E.D. Pa. 2002)); see also Fountain Leasing, LLC v. Kloeber, Civ. A. No. 12-317, 2013 WL 4591622, at *4 (E.D. Tenn. Aug. 28, 2013) (stating that, under Tennessee law, a claim for breach of the implied covenant of good faith and fair dealing “serves as part of a breach of contract action rather than serving as a cause of action in and of itself.” (citing Lyons v. Farmers Ins. Exch., 26 S.W.3d 888, 894 (Tenn. Ct. App. 2000)).  

Moreover, in order to recover on its claim for breach of the duty of good faith and fair dealing, a plaintiff must prove damages resulting from the alleged breach with reasonable certainty. See ATACS Corp. v. Trans World Commc’ns, Inc., 155 F.3d 659, 669 (3d Cir. 1998) (stating that the general rule in Pennsylvania is that the injured party must prove damages from breach of contract with reasonable certainty (citations omitted))….

There are three “theories of damages to remedy a breach of contract: ‘expectation’ damages, ‘reliance’ damages, and ‘restitution’ damages.” ATACS, 155 F.3d at 669 (citing Trosky v. Civil Serv. Comm’n, 652 A.2d 813, 817 (Pa. 1995); Restatement (Second) of Contracts § 344 (1981)); see also Trosky, 652 A.2d at 817 (noting that remedies for breach of contract “are designed to protect either a party’s expectation interest ‘by attempting to put him in as good a position as he would have been had the contract been performed’ . . . ; his reliance interest ‘by attempting to put him back in the position in which he would have been had the contract not been made’; or his restitution interest ‘[by requiring] the other party to disgorge the benefit he has received by returning it to the party who conferred it’” (quoting Restatement (Second) of Contracts, § 344, Comment a))….


Wednesday, June 18, 2014

federal courts - Younger abstention

Gonzalez v. Waterfront Commission – 3d Cir. – June 17, 2014

Ariel Gonzalez filed this action against his former employer, the Waterfront Commission of the New York Harbor, seeking to enjoin disciplinary proceedings initiated by the Commission as a violation of his rights under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the First Amendment.

The United States District Court for the District of New Jersey denied Gonzalez’s motion and ultimately stayed and administratively terminated this suit based on its conclusion that the Younger1 abstention doctrine precluded federal interference with the ongoing state disciplinary proceedings.

During the pendency of this appeal, the Supreme Court issued its decision in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013), which provides clarity to the abstention inquiry and defines the outer boundaries of the abstention doctrine.

Reviewing this appeal in light of Sprint, we conclude that the decision to abstain was appropriate. Accordingly, we will affirm.




Tuesday, June 17, 2014

Consumer Protection - "person" does not include political subdivision agencies

Meyer v. Community College of Beaver County – Pa. SCt – June 16, 2014

In this appeal, we consider whether the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 et seq., defines a “person”subject to liability as including both private entities and political subdivision agencies.

After careful review, we hold that the UTPCPL defines a “person” as including private entities, but not political subdivision agencies. Accordingly, we reverse the Commonwealth Court’s order affirming the trial court’s denial of partial summary judgment on this issue and remand to the Commonwealth Court for further proceedings.

Wednesday, April 09, 2014

debt collection - notice of validation rights - FDCPA

Harlan v.  TransWorld Systems, dba North Shore Agency – ED Pa.  – April 8, 2014

Following Caprio v. Healthcare Revenue Recovery Group, 709 F.3d 142 (3d Cir. 2013) Debt collector failed to give a proper notice of validation rights and violated sec. 1692g, where the notice appeared buried in a lot of other notices on the reverse side of a letter, and where a conflicting notice of "STATEMENT OF INTENTIONS" appeared on the front.