Friday, May 23, 2008

UC - willful misconduct - medical condition - expert testimony

Philadelphia Parking Authority v. UCBR - Commonwealth Cour - May 22, 2008 - UNREPORTED DECISION

http://www.courts.state.pa.us/OpPosting/CWealth/out/2157CD07_5-22-08.pdf

Reversing the referee and UCBR, the court held that a claimant who admitted to being habitually late did not establish good cause for this violation of the employer rules with her lay testimony about a medical condition - obsessive-compulsive disorder (OCD), holding that she needed expert testimony to prove the diagnosis and its effects.

"To meet its burden of proof in establishing willful misconduct as to the violation of a work rule, an employer must establish the existence of the rule, that the employee was aware of the rule and that the rule was violated....Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it."

The employer established the rule and claimant's violation. The court held that claimant did not establish good cause.

The court said that, while it was "sympathetic with Claimant, we cannot neglect the fact that Claimant failed to present expert testimony as to the nature of her mental disorder. Claimant merely testified that she had OCD, which caused her to wash her hands after each of her morning activities and, thus, caused her to be late for work. Expert testimony was needed to provide a proper diagnosis of Claimant’s mental disorder and to explain how the mental disorder affects Claimant’s judgment and behavior. Expert testimony was also necessary to explain how a diagnosis of OCD could cause a person to be habitually late for work involuntarily, i.e., why simply waking earlier would not rectify the problem or why the disorder would cause someone to be one hour late for work one day, but only thirty minutes late for work the following day. As Claimant failed to present sufficient evidence establishing that her OCD condition constituted good cause for violating Employer’s work rule regarding excessive tardiness, the Board erred in concluding that Claimant’s actions did not rise to the level of willful misconduct.

admin. law - due process - notice of charges

Goslin v. State Board of Medicine - Commonwealth Court - May 23, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/1830CD07_5-23-08.pdf

A registered nurse was charged by the State Board of Medicine with various offenses involving whether she was properly licensed to practice midwifery.

She was found to have violated a section of the law barring "practicing as a midwife without a license and for holding herself out to the public as a midwife."

She appealed, inter alia, on the ground that "the Board deprived her of due process by failing to provide notice that she was charged with violating" that section of the law. The Court agreed.

The court said that in an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard.....The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges....For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can.

The court concluded that "[g]iven the different purposes" of the two statutes, the charges against the nurse the one act, did not give her adequate notice to defend against the offenses charged in the other, which she was found to have violated.

predatory lending - definitions - N.J. case

Nowosleska v. Steele, et al. - N.J. Superior Court, Appellate Division - May 19, 2008

http://www.judiciary.state.nj.us/opinions/a5759-06.pdf

Borrowers moved to open a default judgment entered against them in a case in which they "were induced to pay with the title to property valued at $405,000 in order to pay off debts totaling $145,000." The various transactions included a $50,000 fee to one of the lenders.

In its opinion opening the default judgment based on possible "grave injustice" and "equity and justice" under N.J. law, the court mentioned several definitions of "predatory lending," as follows:

While predatory lending is a general concept not subject to precise definition, one authority has described it as: a mismatch between the needs and capacity of the borrower . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. Assocs. Home Equity Servs. , Inc. v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2001) (quoting Daniel S. Ehrenberg, If the Loan Don't Fit, Don't Take It: Applying the Suitability Doctrine to the Mortgage Industry to Eliminate Predatory Lending, 10 J. Affordable Housing & Community Dev. L. 117, 119-20 (Winter 2001)).

HUD Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage Lending 17-24 (2000) http://www.huduser.org/Publications/pdf/treasrpt.pdf discusses predatory lending in general and the difficulty in providing a definition of predatory lending. Predatory lending includes "the practice of making loans containing interest rates, fees or closing costs that are higher than they should be in light of the borrower's credit and net income, or containing other exploitative terms that the borrower does not comprehend." Henry v. Lehman Commercial Paper, Inc. 471 F.3d 977, 984 (9th Cir. 2006); see also Debra Pogrund Stark, Unmasking the Predatory Loan in Sheep's Clothing: A Legislative Proposal, 21 Harv. BlackLetter L.J. 129, 134 (2005) (stating that "predatory lending is the situation where a mortgage broker or mortgage lender engages in fraudulent, deceptive or sharp practices to induce borrowers (often the elderly or minorities) to enter into 'bad' loans," which would include loans that are overpriced, loans where there is no net economic benefit to the borrower, loans where the borrower cannot afford the payment so the lender is relying on the borrower's equity for payment, and loans with other exploitative terms not understood by the borrower).

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