admin. law - due process - notice of adjudication and of right to appeal

Uzarski v. State Police – Cmwlth. Court – May 19, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2208CD13_5-19-15.pdf?cb=1

 

Civilian employee of State Police was entitled to due process protections (notice, opportunity to be heard, etc.) in 2 Pa. C.S. 501 et seq., before state employer could hold her financially responsible for lost/damaged state property.

 

Neither of two internal memos from one of the employee’s supervisors to another met the minimum due process requirements under the law.   Neither was served on Petitioner, nor did either advise her of any right to appeal.   There was no indication on either memo (the latter of which was an “adjudication”) that the aggrieved person was even copied or that either was a final administrative decision on the matter.   Accordingly, in the absence of service on Petitioner and, therefore, adequate notice of the decision, and the complete lack of any notice regarding her right to appeal, the memo simply was insufficient to trigger a thirty-day limit within which to file a petition for review.

 

Section 504 of the Law, 2 Pa. C.S. 504, in pertinent part, provides that: “No 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. . . .” 2 Pa. C.S. § 504 (emphasis added).  Moreover, in Holloway v. Lehman, 671 A.2d 1179, 1181 (Pa. Cmwlth. 1996), this Court noted that, “[w]hat process is due, at a minimum, to one who has lost property via the action of a Pennsylvania State agency or Commonwealth official is addressed in the [Administrative Agency Law].”  That process includes, at a minimum, an opportunity to be heard, to have testimony be recorded, to have a full and complete record of the proceedings be kept, the right to examine and cross-examine witnesses and a written adjudication with findings and reasons for the decision.   

 

 

 

 

Consumer Protection - standard of proof

Boehm v. Riversource Life Insurance – Pa. Super – May 19, 2015

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A27014-14o%20-%201022190983492331.pdf?cb=1

 

Fraudulent misrepresentation case in connection with the sale of life insurance policies.  Jury found in favor of defendant on common law fraud claim, but court found for plaintiffs in the amount of $295,305.78, including attorneys’ fees and costs.  The Superior Court affirmed.

 

Liberal construction

1994). “The UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices.” Wallace v. Pastore, 742 A.2d 1090, 1092, 1093 (Pa.Super. 1999), appeal denied, 764 A.2d 1071 (Pa. 2000), citing Hodges v. Rodriguez, 645 A.2d 1340 (Pa.Super. 1994 “In addition, the remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Id. (citations omitted). “The UTPCPL’s ‘underlying foundation is fraud prevention.’” Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001), quoting Commonwealth v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa. 1974).

 

Standard of proof

Trial court’s use of preponderance standard of proof affirmed.  In the predominant number of civil cases, where only economic and property interests are at stake, the evidentiary burden requires only proof by a preponderance of the evidence. Section 201-9.2 of the UTPCPL, providing for private actions, does not set forth which standard of proof applies, and apparently the matter has never been decided by the Pennsylvania appellate courts. There is no language anywhere in the UTPCPL suggesting that private actions brought pursuant to Section 201-9.2 should be governed by a more demanding standard of proof than proof by a preponderance of the evidence. Moreover, the preponderance of the evidence standard of proof, which is the standard usually applied to remedial legislation, is consistent with the UTPCPL’s purpose of protecting the public from fraud and unfair or deceptive business practices.  The court relied heavily on and quoted liberally from Judge Wettick’s opinion in eck v. Metropolitan Life, 2006 WL 634564 (CCP Allegheny 2006) and cited supporting case law from other states.

 

Parol evidence – Toy case

The court held that the parol evidence rule did not bar proof of the insurance agents’ misrepresentations, which were alleged to be fraud in the execution of the contract rather than fraud in the inducement.  Toy v. Metropolitan Life, 928 A.2d 186 (Pa. 2007).  The trial court found the the plaintiff’s reliance on the misrepresenations was justifiable and that plaintiff was credible

 

 

UC - continuances

Magio v. UCBR – Cmwlth. Court  - MAY 14, 2015 – unreported memorandum decision

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1263CD14_5-14-15.pdf?cb=1

 

Held: Last minute request for continuance denied.

 

The UC regs, 34 Pa. Code §101.23(a) allows a continuance “only for proper cause and upon the terms as the tribunal may consider proper.” A claimant who desires a continuance due to his inability to attend a hearing has a duty to “immediately request a continuance in writing before the hearing.” Flores v. UCBR, 686 A.2d 66, 76 (Pa. Cmwlth. 1996) (citation omitted). The UC Regulations further provides that, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence.” 34 Pa. Code at §101.51.

 

In Cowfer v. UCBR, 534 A.2d 560, 562 (Pa. Cmwlth. 1987), we noted that “last-minute requests for continuances will not be viewed favorably by this Court.” Moreover, in Skowronek, 921 A.2d at 558, we reasoned that “[i]f counsel was unavailable due to a previously scheduled appointment, there is no explanation as to why the request was not made prior to 6:30 p.m. on the last business day before the hearing.” Even the four notices of hearing sent to Claimant advised: “If you cannot attend the hearing for any reason, you may request a continuance (postponement) of the hearing. You should do this as soon as possible.” (Notices of Hearing, 2/20/2014, at 3, C.R. Item No. 8.) (emphasis added).

 

In this case, not only was the continuance request filed shortly before the scheduled hearing, the reason given for the request was not because of an emergency or unexpected event. Instead, Claimant’s counsel stated that he could not attend because he was traveling abroad. Generally, such travel requires advance planning and counsel would know that he would be unavailable on the hearing date and should have requested a continuance much earlier, given that notices for the hearing were sent well in advance.

 

Given that the request for a continuance was received less than an hour before the scheduled time and was not because of an unexpected event, the Referee did not abuse his discretion in denying the continuance, and absent an abuse of discretion, we will not override a referee’s denial of a continuance. Steadwell v. UCBR, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983).

 

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

UC - independent contractor

Checkum v. UCBR – May 14, 2015 – Cmwlth. Court – unreported memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1793CD14_5-14-15.pdf?cb=1

 

Held : There is no evidence that Claimant was customarily engaged in an independently established trade, occupation, profession or business.  UCBR reversed.

 

Section 4(l)(2)(B),  43 P.S. § 753(l)(2)(B) (relating to self-employment), provides a two-prong test for determining whether an individual is an independent contractor or an employee. Kurbatov v. Dept. of Labor & Indus., 29 A.3d 66 (Pa. Cmwlth. 2011). It states in pertinent part:

 

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 will continue to be free from control and 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 this section “is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Whether a claimant is an employee or an independent contractor under Section 4(l)(2)(B) is a question of law subject to our review. Stauffer v. UCBR, 74 A.3d 398 (Pa. Cmwlth. 2013).

 

An individual receiving wages for his services is presumed to be an employee. Thomas Edison State Coll. v. UCBR, 980 A.2d 736 (Pa. Cmwlth. 2009). Employer alone bears the heavy burden of overcoming the presumption of employment. Kurbatov.

 

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

taxpayer standing

Keith et al. v. Commonwealth, Dept. of Agriculture – May 13, 2015 – Commonwealth Court

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/394MD14_5-13-15.pdf?cb=1

 

Taxpayersheld to have had standing to challenge the Department of Agricultures exemption of nursing mothers from the statutory ban on metal strand flooring and from the statutory requirement of unfettered access to exercise areas.

 

Taxpayers had standing under  In re Application of Biester, 409 A.2d 848, 852 (Pa. 1979).  Under Biester, taxpayers, even ones not personally aggrieved, may challenge a governmental action provided that they satisfy the following requirements: (1) the governmental action would otherwise go unchallenged, (2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action, (3) judicial relief is appropriate, (4) redress through other channels is unavailable, and (5) no other persons are better situated to assert the claim. Flora v. Luzerne Cty., 103 A.3d 125, 132 (Pa. Cmwlth. 2014) (emphasis added). The Department asserts that Petitioners are unable to satisfy the second and fifth Biester factors.

                                                            

The purpose underlying Biester’s relaxation of the general rules regarding standing and their requirement of a substantial, direct, and immediate interest in the matter, is to enable citizens to challenge governmental action which would otherwise go unchallenged in the courts. Faden v. Phila. Hous. Auth., 227 A.2d 619, 621-22 (Pa. 1967). Taxpayer standing “allows the courts, within the framework of traditional notions of ‘standing,’ to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts.” Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 661-662 (Pa. 2005) (quoting Biester, 409 A.2d at 851 n.5).

 

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If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

 

disability - incomplete hypo to VE not harnless error - remand

Salmela v. Colvin – ED Pa. –  April 30, 2015

 

https://www.paed.uscourts.gov/documents/opinions/15D0374P.pdf

 

ALJ failed to present the VE with a hypothetical question that completely presented Mr. Salmela’s limitations.  Case remanded for further proceedings.

 

In questioning a vocational expert, the Third Circuit has held “in the clearest of terms” that a hypothetical question must include all of a claimant’s impairments that are supported by the record.....If the hypothetical does not include all of the claimant’s substantiated impairments, “the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Id.

 

Therefore, courts in this Circuit have repeatedly found that a failure to include limitations in mental functioning in a hypothetical question posed to a vocational expert calls for remand....., 2015) (remanding because the failure of the ALJ to include moderate limitations in social functioning in the hypothetical question posed to the vocational expert rendered the question “‘deficient,’” such that it could not “‘be considered substantial evidence’” and was not harmless error) (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)); Pounds v. Colvin, Civil Action No. 13-440, 2014 WL 3845728, at *4-6 (W.D. Pa. Aug. 4, 2014) (remanding and holding that including a limitation on plaintiff’s interaction with the general public was insufficient to account for moderate limitations in social functioning); Seagraves v. Colvin, CA No. 13-718, 2014 WL 657549, at *2 (W.D. Pa. Feb. 20, 2014) (remanding for the ALJ to either explain the omission of plaintiff’s moderate limitations in social functioning from the description of plaintiff’s residual functional capacity/hypothetical question or to obtain vocational expert testimony in response to a complete and accurate hypothetical); Debias v. Astrue, Civil Action No. 11-3545, 2012 WL 2120451, at *5-6 (E.D. Pa. June 12, 2012) (finding the vocational expert’s testimony “inherently flawed” because of a failure to include moderate limitations in social functioning and remanding “so the ALJ can provide an accurate hypothetical that includes Plaintiff’s moderate social function impairment”); Lam v. Astrue, Civil Action No. 09-4331, 2011 WL 1884006, at *14 (E.D. Pa. Mar. 31, 2011) (“Until the ALJ forecloses the possibility that the VE could have changed his testimony if the ALJ had included limitations pertinent to the ALJ’s own finding of ‘moderate’ limitations in social functioning, the VE’s answer to the hypothetical as posed cannot be said to constitute substantial evidence upon which the ALJ can properly rely.”).

 

Here, the ALJ clearly found that Mr. Salmela had moderate limitations in social functioning, but failed to include those limitations in her description of Mr. Salmela’s residual functional capacity or in her hypothetical question to the vocational expert. Because the ALJ did not explain her failure to include Mr. Salmela’s moderate limitations in social functioning at these later stages in the analysis, the Court may not speculate now as to her potential reasons for doing so. Thus, given that it is impossible to tell whether the omission was intentional, the Court must turn to the more difficult question of whether the omission, intentional or not, was harmless.