Wednesday, September 10, 2008

UC - reconsideration - new evidence - second bite at the apple

Rose v. UCBR - September 9, 2008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/145CD08_9-9-08.pdf

The regulation at 34 Pa. Code §101.1116 provides that an aggrieved party may request the Board to reconsider its decision. The Board’s “decision to grant or deny a request for reconsideration is a matter of administrative discretion, this Court’s scope of review of that decision is limited to determining whether the agency abused its discretion.”

Section 101.111(b) provides that the Board will grant a request for reconsideration for “good cause.” In determining whether “good cause” exists, the agency must consider whether the party requesting reconsideration has identified new circumstances or whether the agency failed to consider relevant law.

An offer to provide additional evidence does not constitute good cause unless it can be shown that this “new” evidence was not available at the time of the Referee’s hearing.

Save exceptional circumstances, this Court simply does not allow a party “the proverbial second bite at the apple.” Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000)

due process - emergency - post-deprivation hearing

Elsmere Park Club v. Town of Elsmere - 3d Circuit - September 9, 2008

http://www.ca3.uscourts.gov/opinarch/071821p.pdf

Town condemned apartment complex because of mold and sewage problems.

Held: No pre-deprivation hearing was required because of "exception circumstances" and need for prompt government action, e.g. threat to public health of safety.

The post-deprivation process that was offered--and which owner abandoned--was held to be adequate.

federal courts - pleading

Umland v. Planco Financial Services - Third Circuit - Septembe 9, 2008

http://www.ca3.uscourts.gov/opinarch/064688p.pdf

In light of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we have cautioned that the factual allegations in the complaint must not be “so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

In addition, “it is no longer sufficient to allege mere elements of a cause of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in original) (quoting Twombly, 127 S. Ct. at 1969 n.8).

We have interpreted Twombly’s emphasis on “plausibility” to mean that the complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).
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